02-090

         Petitioner, the Board of Education of the City School District of the City of Buffalo (district), appeals from a hearing officer's determination that the district must provide consultant teacher services to respondents' son at the private school he attended during the 2001-02 school year. Petitioner also appeals from the hearing officer's determination that it must provide respondents' son with compensatory education. Respondents cross-appeal asserting that they had a right to an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA). The appeal must be dismissed. The cross-appeal must be sustained in part.

        Petitioner's Committee on Special Education (CSE) has classified respondents' son as a student with a learning disability. The CSE convened on May 7, 2001 to develop an individualized educational program (IEP) for the student for the 2001-02 school year. The CSE recommended a program that included 60 minutes of consultant teacher services six times per six-day cycle, 30 minutes of indirect consultant teacher services one time per six-day cycle, and 30 minutes of group speech therapy two times per week (Exhibit D). The parties agree on the appropriateness of the student's classification and the recommended services. The dispute concerns the location at which the services are to be provided.

        Respondents' son, who was nine years old and a third grade student at the time of the hearing, attends the Martin Luther Christian School (Martin Luther), which is a private school located outside the district (May 29, 2002 Transcript p. 72). He has attended Martin Luther since first grade. During first and second grades, the district provided special education and related services to the student at Martin Luther (May 29, 2002 Transcript pp. 173-74). At the beginning of the 2001-02 school year, when the student was in third grade, the district provided consultant teacher services and speech-language therapy at Martin Luther. In August of 2001, the district had sent letters to the parents of dually enrolled students advising them that consultant teacher services would be offered only in a Buffalo public school and not at the private schools attended by students who were residents of the district (November 9, 2001 Transcript pp. 71-72). The district stopped providing the consultant teacher services at Martin Luther during October 2001 (May 29, 2002 Transcript pp. 175-76) but continued to provide the speech-language therapy at that location (May 29, 2002 Transcript pp. 176-77). The record does not indicate that a CSE meeting was held prior to the termination of consultant teacher services for respondents' son at Martin Luther.

        On August 29, 2001, prior to the 2001-02 school year, respondents requested an impartial hearing, asserting that the district violated its duty to offer their child a free appropriate public education (FAPE) by failing to indicate the location at which services specified on their son's May 7, 2001 IEP were to be provided. Respondents also asserted that their child's services should be provided at Martin Luther throughout the pendency of the impartial hearing (District Exhibit 1). In response to respondents' request for an impartial hearing, the district moved to dismiss, arguing that the hearing officer lacked subject matter jurisdiction, that the parents failed to state a cause of action, and that the parents lacked standing (IHO Exhibit 1). The hearing began on November 9, 2001. On November 12, 2001 the hearing officer determined that the last agreed upon program included consultant teacher services, speech-language therapy, and occupational therapy. He ordered the district to continue to provide the recommended consultant teacher services at Martin Luther because he determined that the student would only benefit from consultant teacher services when those services are provided in the regular education classroom the student attended (IHO Exhibit 2 pp. 10-11).¹ He ordered the district to continue to provide the recommended related services at a location of its choice (id. at page 12).² On November 14, 2001, the hearing officer granted the district's motion to dismiss (IHO Exhibit 3). The parents appealed from the dismissal, and the district cross-appealed from the pendency determination (IHO Exhibits 4, 5). In a decision dated March 7, 2002, State Review Officer (SRO) Muñoz sustained the parents appeal and dismissed the district's cross-appeal (Application of a Child with a Disability, Appeal No. 01-106).³

        The hearing continued on May 29, 2002, and the hearing officer granted a request by the parents to consider their demand for compensatory education. The parents alleged that the district failed to provide consultant teacher services between October 2001 and April 2002 (May 29, 2002 Transcript pp. 6, 219). In a decision dated August 17, 2002, the hearing officer determined that consultant teacher services must be provided in the student's regular education classes and that the district was therefore obligated to provide those services at the student's private school. With regard to the request for compensatory services, the hearing officer ordered the district to provide 100 hours of direct consultant teacher services. He did not order any indirect consultant teacher services.

        The district argues that the hearing officer erred in requiring it to provide consultant teacher services at Martin Luther and compensatory education. The district also argues that the hearing officer lacked the authority to declare that the district had "no discretion" to determine where consultant teacher services would be provided. The parents cross-appeal arguing that the district is precluded from appealing any determination pertaining to location of services because that issue has already been determined in Appeal No. 01-106. The parents further assert that the district failed to provide the appropriate amount of services during the pendency of this matter. Finally, the parents argue that they have the right to an impartial hearing pursuant to the IDEA because the district refused to provide on-site services in accordance with New York Education Law § 3602-c, because the district excluded them from the process of determining the location in which services were to be provided, and because the district violated its child find obligations.

        I will first address respondents' argument that they were entitled to a hearing pursuant to the IDEA. As stated earlier, the hearing officer originally dismissed the parents' hearing request for lack of jurisdiction. Upon appeal, SRO Muñoz concluded that the parents were not entitled to an impartial hearing pursuant to federal law, but they were entitled to a hearing pursuant section 3602-c of New York Education Law (Application of a Child with a Disability, Appeal No. 01-106). Respondents' claim that they are entitled to a hearing pursuant to the IDEA was considered and found to be without merit in Appeal No. 01-106 because the dispute over the comprehensiveness of the student's evaluation had not been sufficiently raised at the hearing level. Upon remand, per SRO Muñoz's order, and continuation of the hearing on May 29, 2002, respondents did sufficiently raise the claim that their son was not appropriately evaluated in terms of his audiological assistive technology needs. The student's mother testified that the student's teacher, speech therapist, and consultant teacher recommended, at the May 2001 CSE meeting, the use of an "FM trainer" for her son (May 29, 2002 Transcript pp. 185-92). According to the mother, the CSE chairperson declined to include in the IEP the provision of the recommended assistive technology because the appropriate evaluations had not been undertaken. Upon review of the additional evidence, I find that respondents sufficiently raised the issue of whether their son was properly evaluated; accordingly, the IDEA due process procedures do apply.⁴  However, I find that the dispute was resolved when the district subsequently provided an "FM trainer" and that I need not make a determination on the merits of this contention (May 29, 2002 Transcript p. 191-92).

        Section 3602-c(2) of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. Generally speaking, the school district of the parents' residence must provide an eligible dually enrolled student with special education services if the private school is located within its district, or contract with another district to provide services if the private school attended by the student is not located in the district of residence (Education Law § 3602-c[2]; Appeal of a Student with a Disability, 41 Ed Dept Rep 110 [August 23, 2001]). Dual enrollment services provided pursuant to Education Law § 3602-c must be furnished by the district in which the nonpublic school is located, and the student's district of residence is required to contract with the district of location for such services (Application of a Child with a Disability, Appeal No. 02-035). Therefore, upon the timely receipt of a request for dual enrollment services, petitioner, as board of education of the school district of residence, was required to contract with the Amherst Central School District, the school district of location, to provide the services determined appropriate by the petitioner's CSE for respondents' son.

        Petitioner contends that the hearing officer erred in ordering it to provide consultant teacher services on-site at the student's nonpublic school. Although subdivision 9 of section 3602-c provides that such students "shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools," the New York State Court of Appeals has held that:

"[t]he statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise [citation omitted], but that is not a matter of statutory compulsion under section 3602-c." (Bd. of Educ. v. Wieder, 72 N.Y. 174, 184 [1988]).

        In the circumstances of this case, SRO Muñoz determined in Appeal No. 01-106 that the consultant teacher services recommended for respondents' son were to be provided on-site at the nonpublic school the student attended pending final determination of the underlying dispute. As noted in his decision, direct consultant teacher services are provided to a student in his or her regular education classes so that he or she can benefit educationally from such classes (see Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024; see also 8 NYCRR 200.1[m][1]). Also, as noted in that decision, indirect consultant teacher services are provided to the student's regular classroom teacher so that the teacher can better meet the student's needs in regular education classes, and such services provide assistance in adjusting the learning environment and/or modifying instructional methods (8 NYCRR 200.1[m][2]). Upon my review of the record, created both before and after SRO Muñoz's decision, and upon reading and incorporating his findings into this decision, I find that due to the nature of the services and the needs of the student, both the direct and indirect consultant teacher services recommended for respondents' son must be provided at his nonpublic school. I further find that the hearing record supported the IHO's determinations that the "efficacy" of the consultant teacher services provided was "unquestioned", that the student showed educational progress as a result of such services, and that the student could not "function" in a regular education classroom without such services (IHO decision pp. 10, 20; May 29, 2002 Transcript pp. 47-48, 67, 100). I further find credible the testimony of the student's teacher that he regressed without the services (May 29, 2002 Transcript pp. 92, 99-102).

        SRO Muñoz also determined on March 7, 2002 that the pendency provisions of state law (Education Law § 4404[4][a]) required the district to provide consultant teacher services at the student's private school. The evidence shows that the district failed to provide those services from mid-October 2001 through mid-April 2002 (May 29, 2002 Transcript pp. 176-78). As a result, the hearing officer ordered the district to provide compensatory education. Compensatory education is special education provided to students after they are no longer eligible to receive such services due to either age or graduation. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for an extended period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). 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]). The district was obligated to provide on-site consultant teacher services throughout the pendency of this proceeding. The evidence of the district's failure to provide consultant teacher services from mid-October 2001 through mid-April 2002 is uncontested. Respondents' son is, however, only ten years old and the deprivation of instruction can be remedied through the provision of additional services before he becomes ineligible for instruction. Therefore, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 02-042). Although respondents' son may not be eligible for compensatory education, SROs have awarded additional services to students who remain eligible to attend school and have been denied appropriate services (Application of the Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-047). Under the circumstances presented here, given the district's unilateral termination of consultant teacher services at Martin Luther and the testimony that respondents' son was denied appropriate IEP services and educational benefits, I find it is not necessary to modify the IHO's considered determination of equitable relief. To the extent that such additional services have yet to be provided by petitioner, the CSE must meet to establish a plan for the provision of such services.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that petitioner's CSE meet within 30 days of the date of this decision to plan for the provision of any of the additional consultant teacher services ordered by the hearing officer which have yet to be provided to respondents' son.