02-016

       Petitioners appeal from an impartial hearing officer’s decision denying their challenge to the constitutionality of N.Y. Educ. Law § 4401(1) with regard to the age at which a student is no longer eligible to receive a free appropriate public education (FAPE), as well as their claims that their son was entitled to a pendency placement and compensatory education. The appeal must be sustained in part.

        Respondent asks that I excuse its delay in answering the petition, which was served upon it on or about September 14, 2001. The answer was served on February 13, 2002. Respondent is represented by the New York City Law Department, the offices of which were closed for an extended period of time as a result of the September 11, 2001 World Trade Center incident. Under the circumstances, I will excuse the delay and accept respondent’s answer.

        Petitioners’ son, who turned 21 in May 2001, has been classified as autistic since he first entered the public school system. He is approximately 55 inches tall and weighs about 80 pounds. The student is non-verbal and functions cognitively in the severe to profound range. He can follow simple directions and responds to his name (Exhibit 7). His academic skills are inconsistent, and he requires constant prompting to remain on task. He does not interact with other students and needs assistance in activities of daily living (ADL). The student had been enrolled in respondent’s Specialized Instructional Environment-III (SIE-III) program at P.S. 37 since 1990.

        In April 2000, the student moved to a group home run by On Your Mark, Inc., an organization for students and adults with special needs. He reportedly did well making the transition to the group home (Exhibit 5). An educational evaluator reported in May 2000 that the student was able to make known many of his needs by making random sounds or by reaching for an object he wanted, and that he did well with activities that followed a routine (Exhibit J). In June 2000, a school psychologist reported that petitioners’ son could not match or count, and that he made fleeting eye contact with strangers. On the Vineland Adaptive Behavior Scale, the student achieved a composite age equivalent score of 1-0 for adaptive behavior. The school psychologist reported that while it might be appropriate in the future to include some routine sheltered workshop activity in the student’s vocational planning, he was not then capable of that sustained level of activity because he tired easily (Exhibit G).

        At its annual review on June 23, 2000, respondent’s Committee on Special Education (CSE) recommended that the student remain in respondent’s Specialized Instructional Environment-III (SIE-III) program in a class with a 6:1+1 student to adult ratio at P.S. 37 during the 2000-01 school year. The student had attended such a class since 1990, and the CSE recommended a 12-month placement for him. Additionally, the CSE recommended that he receive three sessions of individual and two sessions of group speech/language therapy per week, and five sessions of individual occupational therapy per week, and have a part-time toileting aide (Exhibit E). The individualized education program (IEP) that the CSE prepared for the student indicated that he would be transported by ambulette. The IEP also included a transition plan designed to ease the student’s transition from school to the post-school environment, by exposing him to a wide range of community activities and assisting him to acquire the skills for daily living (Exhibit E). The parents did not object to their son’s recommended program for the 2000-01 school year.

        In April 2001, the student began to attend a day habilitation program run by On Your Mark, Inc. He attended the program each Thursday for one-half of the day (Exhibits A, R). The day habilitation program was designed to assist its participants to learn skills need to transition into community jobs and/or community services, and was structured to resemble a work site (Exhibit Q). In June 2001, the student was granted either an IEP diploma or a certificate of completion since he had aged-out of the program.

        In an undated letter that respondent received on June 5, 2001, petitioners requested an impartial hearing regarding the adequacy of their son’s transition program during the 2000-01 school year and asserting that he had a right to continue receiving educational services during the summer of 2001. The latter assertion was apparently premised upon the claim that the practice of terminating a student’s education at the end of the school year in which he turned 21 violated the equal protection and due process clauses of the United States Constitution (Exhibit B).

        On June 22, 2001, the Board of Education moved to dismiss the proceeding on the ground that the hearing officer lacked jurisdiction to determine petitioners’ claim that the termination of their son’s right to an education at the end of the school year in which he turned 21 was unconstitutional. It further argued that petitioners’ claim with respect to services to be provided after their son had aged out of the system was also beyond the hearing officer’s jurisdiction. Petitioners contended that the transition services that their son had received prior to aging out were deficient and that the hearing officer had jurisdiction to decide that matter. They also urged the hearing officer to find that their son’s placement during the 2000-01 school year was his pendency placement and should be maintained during the summer of 2001 and the 2001-02 school year, notwithstanding his age. Petitioners also objected to the location for the hearing as allegedly being intimidating to them and to respondent’s failure to advise them that it would be represented by an attorney at the hearing. They also asserted that respondent should have provided a separate written notice of the hearing to their son. Neither party presented testimony, and all but one of the exhibits that were entered into evidence were provided by petitioners.

        In her decision dated July 27, 2001, the impartial hearing officer found that there was no merit to petitioners’ objection to the location of the hearing in a community school district building rather than in a central board of education facility. She noted that the student’s father was an attorney, and concluded that he was not intimidated by the site for the hearing. The hearing officer also rejected petitioners’ argument that respondent should have informed them it would be represented by an attorney, noting that petitioners had unsuccessfully raised the same issue in a prior appeal to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 92-20). She found that respondent was not legally obligated to provide notice of the hearing to petitioners’ son, and pointed out that such notice would serve little purpose in view of the student’s disability. The impartial hearing officer agreed with the Board of Education that the petitioners’ constitutional claims were beyond her jurisdiction, but held that the issues of compensatory education and pendency were within her jurisdiction.

        The hearing officer denied petitioners’ claim to a pendency placement for their son, because the student had aged out of the school system. She found that pendency was a right accorded to students who are eligible to receive a free appropriate public education, and was not available to a student who was, because of his age, no longer entitled to a FAPE (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375 [N.D.N.Y. 2001]; Bd. of Educ. v. Ill. State Bd. of Educ., 79 F.3d 654 [7th Cir. 1996]). She agreed with respondent that a student’s entitlement to a FAPE in New York ended at the end of the school year in which the student became 21 years old (St. Johnsbury Academy v. D.H., 240 F.3d 163 [2d Cir. 2001]; Application of a Child with a Disability, Appeal No. 00-024).

        Although the impartial hearing officer did not agree with the respondent’s position that its obligation to the student ended when it provided a statement of needed transition services on his IEP, she nonetheless found that the student was not entitled to compensatory education, because he had not been deprived of transition services over an extended period of time (Application of a Child with a Disability, Appeal No 00-024; Application of the Bd. of Educ., Appeal No. 99-95).

        Petitioners challenge the hearing officer’s determination that the pendency provisions of federal and state law (20 U.S.C. § 1415[j]; N.Y. Educ. Law § 4404[4]) did not apply to their son because he had aged out of the system. They argue that pendency may be part of the remedy to be awarded in a claim for compensatory education. However, I agree with the hearing officer that the student was not entitled to a pendency placement, because he was no longer eligible for a FAPE in New York (Application of a Child with a Disability, Appeal No. 99-075; Application of a Child with a Disability, Appeal No. 97-73).

        Petitioners appear to concede that under New York law, their son’s entitlement to a FAPE ended at the conclusion of the school year in which he reached the age of 21 (N.Y. Educ. Law § 4402[5]). They contend that New York’s law is irrational on its face, unconstitutional in its application, and has a disparate impact upon certain students with disabilities. I find that New York’s statute is not inconsistent with the federal statute (St. Johnsbury Academy, 240 F.3d at 169). Petitioners’ arguments about the alleged irrationality or unconstitutionality of the New York statute are beyond the scope of this administrative proceeding.

        I find, as did the hearing officer, that petitioners are entitled to assert their claim for compensatory education in this proceeding. Before addressing that issue, I will consider petitioners’ claims of procedural violations by respondent with respect to the hearing. They assert that respondent should have notified them that an attorney would represent it at the hearing, and that respondent should have sent a copy of the notice of hearing directly to their son. I cannot agree with either assertion. There is no legal requirement for a board of education to indicate to the parents that its attorney will appear on its behalf at a hearing. I am aware that 34 C.F.R. § 300.517 provides that a state may transfer parental rights to certain students with disabilities at the age of 21, and that if it does so, due process notices must be provided to the students and the students’ parents. However, it is clear from the record in this case that no useful purpose would have been served by sending a notice of the hearing to petitioners’ son, given the nature of his disability.

        Petitioners also assert that the hearing should not have been held on the premises of the community school district in which their son had been educated because of an alleged appearance of impropriety or partiality. I do not agree that assertion. Federal and state regulations require that hearings be conducted in a place that is reasonably convenient to the parents and the student (34 C.F.R. § 300.511[d]; 8 NYCRR 200.5[i][3][viii]). Petitioners do not suggest that the site was inconvenient.

        Petitioners contend that the CSE failed to adequately plan for and provide transition services to their son. Beginning at the age of 14, a student’s IEP must include a statement of transition service needs which focuses upon the student’s course of study and is updated annually (8 NYCRR 200.4[c][2][viii]). 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. Necessary activities include 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 a functional vocational evaluation (8 NYCRR 200.4[c][2][ix]).

        The record before me is extremely limited. There is no evidence that petitioners raised a timely objection to their son’s transition services during the school years prior to the 2000-01 school year. They waited until the end of that school year to object to their son’s transition services. The copy of the student’s IEP for the 2000-01 school year that petitioners entered into evidence includes a one-page statement of transition outcomes or services (Exhibit E). However, there is very little evidence about the services or activities that respondent provided during the 2000-01 school year. As noted above, the student was placed in the day habilitation program of On Your Mark, Inc. in April 2001. The student’s teacher at P.S. 37 reported on June 14, 2001 that she had observed him in the day habilitation program and that he had not demonstrated appropriate visual attending behavior during various work related activities. She appeared to agree with the program’s director that the student would be better served in a day treatment program based on the medical model (Exhibit R). In a letter dated June 21, 2001, On Your Mark’s associate director of vocational services reported that the day habilitation program was inappropriate for the student (Exhibit A). On the record before me, I cannot find that respondent has met its burden of demonstrating that it provided an appropriate program of transition services to petitioners’ son during the 2000-01 school year.

        Compensatory education, i.e., special education services to be 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, when the student has been excluded from school, or denied appropriate educational services for an extended period of time (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. 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, 800 F.2d at 754).

        I am not unmindful of the challenges that may have been presented in arranging appropriate services for this student. However, respondent failed to present any evidence of what steps it had taken to arrange for appropriate services for the student, or to explain what, if anything, it had done prior to April 2001 to prepare for the student’s transition from school to adult living. In view of the student’s significant disabilities, it was essential that respondent’s CSE recommend a program that would assist the student in making the transition from school to adult living. I find that the student is entitled to compensatory services, and I remand the case back to the CSE to work with the student’s parents to determine the needs of the student and the type of transitional program that would fit his needs. Such program shall be provided for the equivalent of a ten-month school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled; and

IT IS FURTHER ORDERED that within 30 days of the date of this decision, respondent’s CSE shall meet with petitioners to plan for an appropriate program of compensatory services.