02-061

       Petitioner, the Board of Education of the Hyde Park Central School District (district), appeals from an impartial hearing officer's decision ordering it to reimburse respondents for tuition they paid for their daughter to attend The Randolph School (Randolph) during the 2000-01 school year. Respondents cross-appeal from the hearing officer's determination that he lacked jurisdiction over petitioner's refusal to provide their daughter with related services during the 2000-01 school year; they request compensatory education for such services. Respondents also argue that petitioner was obligated under the pendency provisions of state and federal law to maintain their daughter at Randolph for the 2000-01 school year and provide her with related services. The appeal must be sustained in part. The cross-appeal must be sustained in part.

        Respondents' daughter was 17 years old and an eighth grade student at Randolph at the commencement of the hearing in December 2001. She has been classified as speech impaired, and that classification is not in dispute. Respondents unilaterally placed their daughter in Randolph, which has not been approved by the Commissioner of Education to contract with school districts to educate students with disabilities.

        The student was born with hypoplasia of the cerebellum (Exhibits 26, 47). She had delayed speech and was initially evaluated at age two. She used American Sign Language to communicate from ages two to seven. She did not use two word utterances until age five (Exhibit 14). Her speech is difficult to understand, and she makes sound substitutions (Exhibit 47). She also exhibits expressive and receptive language difficulties, developmental motor coordination problems, articulation disorders, an arithmetic learning disability and a milder reading disability (Exhibits 18, 47). The student previously attended a special class operated by the Dutchess County Board of Cooperative Educational Services (BOCES) when she was in elementary school (Exhibits 1, 47).

        For the 1999-2000 school year, the Committee on Special Education (CSE) held meetings on July 1, 1999 (Exhibit 8) and February 2, 2000 (Exhibit 9). From the record, it is unclear what grade the student was in for that school year. The CSE meeting in July indicated the student was in sixth grade, while the CSE meeting in February indicated she was in eighth grade. Respondents' understanding was that the student was skipping seventh grade and continuing to eighth grade (Transcript p. 108). The CSE recommended a special class with a student to staff ratio of 12:1+1 for English and social studies, direct consultant teacher services two periods daily in a group of 5:1 for math and science, one 40-minute session per week of group counseling, two 30-minute sessions per week of group occupational therapy consultation, one 30-minute session per week of individual occupational therapy, seven 40-minute sessions per week of individual speech-language therapy, two 40-minute sessions per week of group speech-language therapy and an independent oral motor speech consultation one time per month (Exhibit 8). Respondents unilaterally enrolled their daughter in Randolph for the 1999-2000 school year (Transcript pp. 110-11). In settlement of claims made by respondents for reimbursement of educational expenses incurred by them for the 1999-2000 school year, petitioner and respondents entered an agreement, dated March 2000, pursuant to which petitioner paid respondents $8,750 and provided specified related services to the student for the balance of the school year (Exhibit 27).

        To plan for the 2000-01 school year, the CSE held meetings, on April 12 and June 20, 2000 (Exhibits 10, 11). The CSE recommended placement in a BOCES special day school in special classes with a student to staff ratio of 12:1+1, seven 40-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of group speech-language therapy, one 30-minute session per week of individual occupational therapy, two 30-minute sessions per week of group occupational therapy consultation, and an independent oral motor speech consultation one time a month. The CSE recommended that she participate in special classes in all academic subjects and participate in regular education for specials, electives, and physical education (Exhibit 11).

        Respondents requested an impartial hearing on May 17, 2001 (Exhibit 70; Transcript p. 9), seeking tuition reimbursement for the 2000-01 school year and compensatory education for related services they asserted were improperly denied to their daughter. The impartial hearing in this matter was conducted on five separate dates, concluding on March 18, 2002. In an interim decision dated February 4, 2002, the hearing officer determined he did not have jurisdiction over respondents' request for related services.¹ In a decision dated May 15, 2002, the hearing officer concluded that the parents were entitled to tuition reimbursement.

        Petitioner argues in this appeal that the parents' claim for tuition reimbursement should be denied because the services provided to the student at Randolph did not adequately address her needs. Petitioner also asserts that equitable considerations do not favor tuition reimbursement because the parents never intended to enroll their daughter in the district’s public school and because they were only available to visit the BOCES program recommended by the CSE at a time when the program was ending for the school year. Petitioner further contends that the hearing officer erroneously concluded that because the district reimbursed the parents for the previous year's tuition pursuant to a settlement agreement, it had conceded the appropriateness of the private school program and was bound by that concession for the 2000-01 school year.

        Respondents argue that they are entitled to an award of tuition reimbursement for their daughter's attendance at Randolph because the district did not provide an appropriate program for their daughter, because the program provided to the student at Randolph was appropriate and provided in the least restrictive environment (LRE), and because equitable considerations favor their claim for tuition reimbursement. Respondents also argue that the student was entitled to receive tuition reimbursement and related services at Randolph pursuant to the pendency provisions of federal and state law. Additionally, respondents assert that their daughter was improperly denied related services while she was enrolled at Randolph and that the hearing officer erred in determining that he lacked jurisdiction over issues related to such denial. Finally, respondents argue that section 3602-c of the New York Education Law, which requires school districts to furnish certain services to pupils who attend nonpublic schools, conferred jurisdiction on the hearing officer to decide respondents' related services claims and required petitioner to provide related services to their daughter while she attended Randolph.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F. 3d 96, 102 [2d Cir. 2000], cert.denied, 532 U.S. 942 [2001]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 95-57; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden of demonstrating that it offered to provide a free appropriate public education (FAPE) to a student, the board of education must show that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and that the individualized education program (IEP) its CSE developed is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-008; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Petitioner concedes that it did not offer an appropriate program to the student during the 2000-01 school year (Transcript pp. 36-37). The burden then shifts to respondents to prove that the services provided to the student by Randolph during the school year in question were appropriate (M.S., 231 F. 3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). Additionally, students with disabilities must be educated in the LRE (20 U.S.C. § 1412[a][5]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 96 [2d Cir. 2000]).

        Randolph is a private school which provides education to grade eight. At the time of the hearing, the school had 65 students (Transcript p. 442), and the middle school program had a student to teacher ratio of eight to one (Transcript p. 448). The hearing officer concluded that, while under normal circumstances Randolph would not be an appropriate program, it was, under the facts presented, the best program available and thus appropriate. He reasoned that the district did not have an appropriate program and did not inform the parents of that fact until just before the start of the school year. The hearing officer found the district placed the parents at a disadvantage in finding an appropriate program for their daughter.

        Respondents' daughter was an eighth grade student at Randolph during the 2000-01 school year. The student had multiple related services needs. A neuropsychological examination was conducted on four dates from December 2000 to June 2001 (Exhibit 47). The psychologist concluded that the student exhibited expressive and receptive language difficulties, dyspraxic speech, motor coordination problems, an arithmetic learning disability and a mild reading disability. It was recommended that she be provided a modified curriculum that was geared for her academic level, which included instruction by a special education teacher, assistance with homework, speech-language therapy, physical therapy, vocational training, education with appropriate peers, a shortened school day and use of assistive technology (Exhibit 47).

        In 2000-01, the CSE recommended seven 40-minute sessions per week of individual speech-language therapy, two 40-minute sessions per week of group speech-language therapy, one 30-minute session of individual occupational therapy, two 30-minute sessions of group occupational therapy consultation, and an independent oral motor speech consultation one time a month (Exhibit 11). While she was enrolled at Randolph for the 2000-01 school year, she did not receive speech-language therapy, occupational therapy or an oral motor speech consultation. The student's teacher testified that Randolph is not a special education school (Transcript p. 337).

        The student was classified as speech impaired, and while her teachers noted some progress, she still required speech-language therapy to address her speech impairment. A teacher's report (Exhibit 53) and testimony from her teacher indicated the student's speech and pronunciation remained difficult to understand, sometimes requiring her to repeat what she was attempting to communicate two to three times in order for her teacher to understand her (Transcript pp. 339, 473, 504-05). With regard to the student's occupational therapy needs, respondent has failed to establish that Randolph appropriately addressed her deficits in fine motor coordination, visual motor coordination, sensory processing, and gross motor coordination (see Exhibit 11).

        Petitioner asserts that respondents' daughter did not have appropriate opportunities to socialize and interact with students her own age at Randolph. In the 2000-01 school year, she was in a class with students who were 12 or 13 years old (Transcript p. 393) at a time when she was 16. In a June 2001 progress report, her teachers noted that she sought peers of her own age or older for friendships, which caused problems as her classmates were younger than her (Exhibit 53). Respondents have failed to demonstrate that their daughter was provided with appropriate opportunities to associate with students her age while enrolled at Randolph.

        Petitioner asserts that the student's academic performance deteriorated in reading and math while she was enrolled at Randolph. Respondents' daughter achieved standard (and percentile) scores of 87 (20) in letter-word identification, 88 (22) in passage comprehension, 81 (10) in calculation, 72 (3) in applied problems, 75 (5) in dictation, 87 (20) in writing samples, 86 (17) in broad reading, and 73 (4) in broad math on the Woodcock-Johnson Tests of Achievement, administered in June 1999 before the student entered Randolph (Exhibit 23). Portions of the Woodcock-Johnson Psychoeducational Battery – Revised: Tests of Achievement were administered in June 2001 and were scored using both age norms and grade norms (Exhibit 47). The student achieved a grade-normed standard score of 84 (14) and an age-normed standard score of 79 (8) for passage comprehension. She achieved a standard score of 72 (3) for calculation when the subtest was scored using both grade and age norms.

        The evaluations indicate the student did not progress while she attended Randolph, and in fact, her academic performance deteriorated in the areas of reading comprehension and math calculation, as evidenced by comparing the results of the Woodcock-Johnson Psychoeducational Battery-Revised: Tests of Achievement administered in June 2001, while she attended Randolph, to the Woodcock-Johnson Tests of Achievement results obtained in June 1999, at which time she attended petitioner's school. Additionally, as noted above, respondents failed to establish that the student's speech-language therapy and occupational therapy needs were appropriately addressed by Randolph. Further, although the student was 16 years old, respondents placed her with classmates who were between three and four years younger. I find that Randolph was not an appropriate placement for the student, as it did not meet her individual needs and she did not progress while attending Randolph. Accordingly, respondents are not entitled to tuition reimbursement, and it is unnecessary for me to determine whether equitable considerations support such reimbursement.

        Respondents contend that the pendency provisions of state and federal law entitled their daughter to continue to attend Randolph, to receive related services, and to have petitioner pay for her tuition and the cost of such services. They argue that a settlement agreement dated March 2000 established the last program agreed to by the parties and, therefore, constituted the student's pendency placement. Petitioner argues that the settlement agreement was limited to the 1999-2000 school year and did not become the student's pendency placement.

        The pendency provisions of the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; Education Law § 4404[4]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability (Honig v. Doe, 484 U.S. 305 [1987]).

        Under the IDEA, the inquiry focuses on identifying the student's then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F.Supp.2d 354, 359 [S.D.N.Y. 2000], aff’d, 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ. of the Shenendehowa Cent. Sch. Dist., Appeal No. 00-073). It may or may not turn out to be the same placement that is determined to be the appropriate educational placement for the child after the conclusion of a hearing on the merits of the recommended program for that year. The U.S. Department of Education has opined that a child's then current placement would "… generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, EHLR 211:481; see Susquenita Sch. Dist. v. Ralee S., 96 F.3d 78 [3d Cir. 1996]; Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]). Therefore, the pendency placement is usually the last unchallenged IEP. However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supercede the prior unchallenged IEP as the then current placement (Evans v. Bd. of Educ., 921 F.Supp. 1184, at 1189, fn. 3 [S.D.N.Y. 1996]; see Bd. of Educ. v. Schutz, 137 F.Supp.2d 83 [N.D.N.Y. 2001], aff’d, 290 F.3d 476, 484 [2d Cir. 2002], cert. denied, 123 S.Ct. 1284 [2003]). Once pendency placement has been established, it can only be changed by an agreement of the parties, an impartial hearing officer's decision which is not appealed, a decision by a State Review Officer which agrees with the child's parents (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[l][2]), or a determination by a court (Bd. of Educ. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002], cert. denied, 123 S.Ct. 1284 [2003]; Murphy, 86 F.Supp.2d at 366; Bd. of Educ. v. Engwiller, 170 F.Supp.2d 410, 415 [S.D.N.Y. 2001]; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 03-019; Application of a Child with a Disability, Appeal No. 02-002; Application of a Child with a Disability, Appeal No. 01-088).

        As noted above, respondents assert that a March 2000 settlement agreement established their daughter's pendency placement for purposes of this proceeding. That agreement provided for tuition reimbursement for the student's attendance at Randolph for the 1999-2000 school year (Exhibit 27). Respondents argue that the settlement agreement is the last agreed upon placement between the parties and that the district must reimburse respondents for tuition at Randolph during the 2000-01 school year. The determinative issue in deciding whether a stipulation becomes the basis for a student's pendency placement is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans, 921 F. Supp. at 1187). Absent such specificity, courts have held that a placement for which the board of education has agreed to pay became the child's pendency placement (Evans, F. Supp. at 1184; Doe v. Independent School District No. 9 of Tulsa County, 938 F. Supp. 758 [N.D. Okla., 1996]). In Zvi D., the court determined that an agreement providing that "[t]his funding is being provided with the stipulation that a review of Zvi's classification will be conducted at the end of the current year with a view toward placing him in an appropriate public program in September, 1979" did not render the placement for which the funding was provided the student's pendency placement (Zvi D., 694 F.2d at 907-08). In the instant matter, the parties' stipulation was intended to settle their differences with respect to the 1999-2000 school year and provided explicitly that "[t]he district and parents agree that the district's CSE shall convene to initiate the parents' daughter's annual review meeting for the creation of the child's IEP for the 2000-01 school year on March 29, 2000 at 9:30 a.m. for a duration of not more than one hour, and shall continue such at meetings scheduled thereafter at the mutual convenience of the attendees. In advance of such meeting the district shall provide to the parents information as to all programs that would be appropriate to consider for the child's placement for the 2000-01 school year" (Exhibit 27). Under the circumstances, I am unable to find that Randolph is the pendency placement.

        The related services of speech therapy and occupational therapy were not provided to the student while she was enrolled at Randolph during the 2000-01 school year. Respondents argue that 34 C.F.R. § 300.403 requires an impartial hearing officer to address the issue of reimbursement for related services as well as for tuition at a private school if a local educational agency (LEA) does not make a FAPE available to the student. They further argue that it was within an impartial hearing officer's jurisdiction to determine that the district was obligated to provide related services and that the hearing officer erroneously concluded that he could not decide this issue. 34 C.F.R. § 300.403 provides that "disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to due process procedures." As noted above, respondents do argue, and indeed petitioner concedes, that the district denied the student a FAPE and that she was not provided with related services. Therefore, I find the impartial hearing officer did have jurisdiction to address the issue of reimbursement for related services.

        Respondents have requested compensatory education for the related services they assert were improperly denied to their daughter for the 2000-01 school year. 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]).

        While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). Because respondents' daughter is 19 years of age and because the deprivation of instruction is of limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 02-047). In this instance, petitioner conceded that it failed to offer respondents' daughter an appropriate placement and program for the 2000-01 school year and further failed to provide any related services for the student. The 2000-01 IEP required the student receive the related services of speech-language therapy, occupational therapy and oral motor speech consultations. Under the circumstances presented, I find the appropriate remedy is for the district to provide the student, as additional services, the related services of speech-language therapy, occupational therapy and oral motor speech consultations in the amounts specified in her 2000-01 IEP.²

        I have considered respondents' other arguments and find them to be either unsubstantiated or otherwise without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's interim decision is hereby annulled to the extent he determined that he lacked jurisdiction over respondents' request for related services; and

IT IS FURTHER ORDERED that the hearing officer's final decision is annulled to the extent he determined that respondents were entitled to tuition reimbursement; and

IT IS FURTHER ORDERED that, as a remedy for petitioner's failure to provide the student with a FAPE during the 2000-01 school year, in addition to any services otherwise being provided to respondents' daughter and unless the parties otherwise agree, petitioner shall provide her with the related services of speech-language therapy, occupational therapy, and oral motor speech consultations as specified in her 2000-01 IEP and that the CSE shall meet within 30 days of the date of this decision to determine the manner, location, and timeframe in which these services will be provided; these additional services are to be provided before the student becomes ineligible, by reason of age or graduation, for special education services.