02-019

      Petitioner, the grandmother of a child with a disability, appeals from an impartial hearing officer's decision which awarded her granddaughter one of the four years of compensatory education that petitioner had requested. Petitioner seeks an award of three more years of compensatory education. The appeal must be sustained.

        Petitioner has attached to her petition eight exhibits which were not part of the record before the hearing officer. Respondent objects to the submission of such exhibits. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 01-032). Petitioner does not allege that any of the exhibits in question were unavailable at the time of the hearing. Exhibits 1 through 5 are documents from 1991 through 1995. Exhibits 6 and 7 are subpoenas and fax cover sheets relating to such subpoenas. Exhibit 8 is a report of a bilingual education evaluation conducted on August 7, 1998. Having reviewed all of the exhibits, I find that only Exhibit 8 is necessary to complete the record in order to decide this appeal.

        The student, who was 17 years of age at the time the hearing was conducted, has a long history of developmental delays. She also has a history of medical problems, including seizures, diabetes, and weight control issues resulting from medications she was taking. The student was classified as autistic by respondent's CSE in 1994. In June 1995, her classification was changed to emotionally disturbed (Exhibits C, D). The CSE changed her classification to multiply disabled, based upon mental retardation and health impairments, in September 1998, and she continues to be classified as multiply disabled.  The student was initially placed in respondent's Specialized Instructional Environment III program. In April 1995, the CSE recommended placement in the Specialized Instructional Environment VI program (Exhibit B).

        While it is unclear from the record whether petitioner is the student's legal guardian (Exhibits G, I) or custodian (Transcript pp. 32-33), it appears that she became responsible for her granddaughter in or about July 1997 (Transcript p. 19). The student began receiving home instruction at petitioner's request in September 1997 (Transcript p. 22). In the summer of 1998, petitioner requested that other programs be explored for her granddaughter.

        In a social history update following that request, it was noted that the student's health problems persisted, as she continued to have seizures as well as an ongoing endocrine problem. Although the home instructor was scheduled to spend two hours a day with the student, it appears that she was spending considerably less than that amount of time with the student due to her behavior (Exhibit G; Transcript p. 48). In addition, the family claimed that the student was not receiving the speech services recommended on her last IEP. The family hoped the student would be ready to return to a school program by September. According to the social history update, the student's social skills had reportedly deteriorated since she was a younger child. However, she was reportedly fully independent with activities of daily living (ADL) skills.

        The Vineland Adaptive Behavior Scales were completed on July 22, 1998. The student obtained age equivalent scores of 2.7 in communication, 4.4 in daily living, and 1.9 in socialization. The student was not able to follow rules in simple games and tended to be excitable and menacing. She did appear to listen to simple instructions, but was unlikely to respond appropriately. She also continued to experience seizures and to engage in aggressive displays.

        At a meeting on September 28, 1998, the CSE noted that the student's academic progress had been limited and that she had intensive management needs. It concluded that the student was not yet stable enough to attend a day school program. The CSE recommended that home instruction be provided on a 12-month basis, with occupational therapy once a week for 30 minutes and speech therapy three times a week for 30 minutes (Exhibits H, I).

        Although the CSE conducted an annual review on December 6, 1999, the IEP developed at that conference lacked program and service recommendations (Exhibit K). The student reportedly continued to receive home instruction during the 1999-2000 and 2000-01 school year. I note that petitioner asserts that no services were provided to her granddaughter during the latter school year.

        By letter dated June 8, 2001, the principal of Home Instruction Schools advised petitioner that her granddaughter had not met promotion standards, necessitating summer school attendance (Exhibit M). Subsequently, a letter dated June 13, 2001, addressed to the student's mother rather than to petitioner with whom the student had been residing with since 1997, indicated that the student was no longer receiving instruction and was over 17 years of age (Exhibit N). The letter further stated that those factors "may lead to your child being discharged from school."

        In August 2001, petitioner requested an impartial hearing to consider her claim that respondent had failed to provide a free appropriate public education (FAPE) to her granddaughter from September 1997 through June 2001. The impartial hearing in this matter was conducted on December 5, 2001. In a decision dated January 22, 2002 and corrected on April 12, 2002, the hearing officer found that the student had been appropriately placed in a home instruction program during the four years in question. She further found that respondent had failed to provide a FAPE to the student during the 2000-01 school year because it was reportedly unable to replace the student's previous instructor and had provided only 15 minutes of instruction during such year. With respect to the 1997-98, 1998-99, and 1999-2000 school years, the hearing officer found the amount of home instruction services provided to the student had been determined by the student's medical and behavioral needs. She concluded that respondent had provided a FAPE to the student during those school years. Because she found that the student had been denied a FAPE during the 2000-01 school year, the hearing officer ordered the school district to provide the student with one year of compensatory education.

        Petitioner contends that respondent deprived the student of a FAPE during the 1997-98, 1998-99, and 1999-2000 school years, as well as during the 2000-01 school year. Specifically, she argues that respondent violated the least restrictive environment (LRE) provisions of the Individuals with Disabilities Education Act (IDEA) by not recommending a program for petitioner's granddaughter that was less restrictive than home instruction. Further, she asserts that respondent, by not introducing any evidence to meet its burden of proof, failed to establish that a FAPE was provided to the student. Additionally, she argues that the student did not receive speech-language therapy, occupational therapy, and counseling which had been recommended on her IEPs.

        In addition to not receiving services which were recommended on the student's IEPs, petitioner argues that respondent failed to provide progress reports, to conduct triennial evaluations, and to develop annual IEPs, as mandated by the IDEA. Petitioner further argues that respondent denied a request for a meeting in August 1997 to discuss placement plans and further failed to inform the petitioner of placement options.

        Petitioner also contends that there were several procedural violations. She argues the CSE composition was deficient and the IEPs themselves did not include the student's present levels of educational performance. She also asserts the student's goals on the IEPs were either incomplete or simply copied from previous IEPs. Lastly, petitioner argues that respondent failed to provide the student the minimum amount of home instruction to which a student is entitled.

        Respondent asserts that the hearing officer's decision denying compensatory education for the 1997-98 through 1999-2000 school years was proper because the student was provided a FAPE for the three years in question. Respondent argues that home instruction was appropriate in light of the student's medical and behavioral needs at that time. Secondly, respondent argues that the student is not entitled to compensatory education because that remedy can only be awarded in circumstances involving gross, flagrant and prolonged violations of the IDEA. Respondent asserts that there were no gross, flagrant or prolonged violations of the law that led to a deprivation of services or education to petitioner's granddaughter. Moreover, respondent argues that even if I were to find a gross deprivation of education in this instance, petitioner would have no right to day-for-day compensation for the time missed. Thirdly, respondent contends that petitioner is barred by laches from challenging IEPs and educational services relating to the 1997-98 through 1999-2000 school years.

        Citing petitioner's failure to challenge the services provided to her granddaughter during the 1997-98 through 1999-2000 school years until August of 2001, respondent asserts that the doctrine of laches bars the petitioner's claim for compensatory education. Generally, parents have an obligation to raise objections concerning the appropriateness of services being provided to students with disabilities in a timely manner (Application of a Child with a Disability, Appeal No. 00-084). However, boards of education have a corresponding duty to notify parents of their due process rights (8 NYCRR 200.5[a]). Here, petitioner asserts that respondent failed to provide her with notice of the applicable procedural safeguards (Reply, section II, penultimate paragraph), and, apart from a reference to such safeguards in a Final Notice of Recommendation (Exhibit J), respondent offers no evidence that the required notices were ever provided. Under the circumstances presented, I decline to dismiss petitioner's appeal on the basis of laches.

        The IDEA requires school districts to make a FAPE available to each student with a disability who has not received a high school diploma through the age of 21 (20 U.S.C. § 1412 [a][1][A]; Education Law §§ 4402[2][a] and 4401[1]). Although students are generally not entitled to a public education beyond that age, compensatory education may be awarded beyond age 21 if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]). Not all procedural violations constitute a denial of FAPE (Roland M. v. Concord School Comm., 910 F.2d 983 [1st Cir. 1990]). 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]).

        A FAPE begins with an IEP which is prepared in accordance with the applicable federal and state procedural requirements and which addresses the student's special education needs. There is no indication in the record that an IEP was ever developed for petitioner's granddaughter for the 1997-98 school year. The most current IEP in the record prior to the 1997-98 school year was created in June 1995 and was subsequently updated in November 1996. However, a new IEP, reflecting the changes that required that the student be educated at home and specifying the services to be provided to the student, should have been developed. The student did receive some home instruction during the 1997-98 school year, but according to the student's aunt, who was the sole witness at the hearing, the instruction was limited to between 15 and 30 minutes per day three times a week (Transcript pp. 24, 36, 48). Although the witness testified that the family and the teacher agreed to so limit the student's instruction due to her medical and behavioral condition at the time (Transcript p. 37), I note that the limited instructional time was not reviewed by the CSE and, based on the record, I find it to constitute an inappropriate program. Additionally, although speech-language therapy was recommended in the November 1996 IEP, respondent failed to provide such therapy to the student during the 1997-98 school year (Transcript p. 24).

        For the 1998-99 school year, the CSE recommended that petitioner's granddaughter receive home instruction with three 30-minute individual speech-language therapy sessions and one 30-minute individual occupational therapy session each week (Exhibit I). Although no specific amount of home instruction is included on the IEP, section 200.6(h)(2) of the Regulations of the Commissioner of Education requires a minimum of ten hours per week of such instruction for secondary students. During the 1998-99 school year, the student received approximately one hour of instruction three times per week (Transcript pp. 26, 48) and no speech-language or occupational therapy (Transcript pp. 26, 27). In addition, I note that the CSE that developed the 1998-99 IEP was improperly constituted in that it failed to include any of the student's teachers or service providers (34 CFR 300.344 [a][2] and [3]); Education Law § 4402 ([1][b][1][a]).

        The IEP developed for petitioner's granddaughter for the 1999-2000 school year included no program recommendation, although it did indicate that she would have a 1:1 staffing ratio "pending placement on CSE recommendation" (Exhibit K). The IEP also included no related services without any explanation of why the related services specified in the prior year's IEP were not included. Notwithstanding the fact that the student was 15 years old at the time the IEP was developed on December 6, 1999, the IEP included no statement of her projected post-school outcomes or statement of the needed transition services (8 NYCRR 200.4[d][2][ix]). During the 1999-2000 school year, the student continued to receive one hour of home instruction three times each week, and she received no speech-language or occupational therapy (Transcript p. 29).

        Considering the three years at issue in this appeal, I find that the home instruction program planned for the student in each of those years was unduly restrictive. While petitioner initially requested home instruction when her granddaughter first came to live with her (Transcript p. 22), she subsequently asked for a more comprehensive program in the summer of 1998 (Exhibit G; Transcript p. 25). Over the next two years, the student remained on home instruction. During the three years at issue, the student received instruction only three days per week in sessions ranging from 15 to 30 minutes during the first year to approximately one hour in the next two years. Over the entire period, respondent provided none of the related services which had been recommended. It should also be noted that the student remained at home during the 2000-01 school year, during which she received no instruction (Transcript p. 49) and for which the hearing officer ordered a year of compensatory education.

        I conclude that the record clearly substantiates a gross violation of the petitioner's granddaughter’s right to an appropriate education resulting in her exclusion from any meaningful educational services for a substantial period of time (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]). I further conclude that the appropriate remedy under the circumstances presented is for the student to receive three years of compensatory education, including three years of speech-language therapy and two years of occupational therapy. The compensatory education shall be provided in addition to the one year of compensatory education ordered by the hearing officer, and it need not include summer services as such services were offered to but declined by petitioner (Transcript pp. 39, 48).

        In light of the conclusions reached above, I find it unnecessary to address the other issues raised by petitioner.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision be annulled to the extent compensatory education was denied for the 1997-98, 1998-99, and 1999-2000 school years; and

IT IS FURTHER ORDERED that petitioner be awarded three years of compensatory education for her granddaughter in accordance with the terms of this decision.