02-097

        Petitioners appeal from an impartial hearing officer's decision denying their claim for compensatory education. The hearing officer found that although the student's individualized education program (IEP) was inadequate and respondent failed to provide petitioners' son a free appropriate public education (FAPE) during the 2001-02 school year, the student received educational benefit from attending respondent's school, and therefore, compensatory education was not awarded. Petitioners seek an award of compensatory education for two years on a full-time basis, or, in the alternative, an award of compensatory education for four years on a part-time basis. The appeal must be dismissed.

        Petitioners' son was 18 years old at the time of the hearing, had a long history of attention deficit hyperactivity disorder (ADHD) (Exhibit 8), was classified by respondent's Committee on Special Education (CSE) as other health impaired (OHI) (Exhibit 28), and was attending respondent's high school.

        At the time petitioners' son entered the ninth grade in respondent's high school, he was classified as having multiple disabilities (emotional disturbance and other health impairment [ED-OHI]). The student obtained a verbal IQ score of 105, a performance IQ score of 119, and a full scale IQ score of 112 on the Wechsler Intelligence Scale for Children - Third Edition (WISC-III), which was administered in January 1997 (Exhibit 23). When the Wechsler Adult Intelligence Scale - Third Edition (WAIS-III) was administered in November 2000, the student obtained a verbal IQ score of 100, a performance IQ score of 89 (30 points lower than previously scored), and a full scale IQ score of 95 (Exhibit 23). The discrepancy between the 1997 and 2000 performance scores was reportedly due to an inflated score on the performance IQ portion of the 1997 test (Exhibit 23). The psychologist opined that the student needed a greater academic challenge, but lacked the necessary motivation for the change (Exhibit 23).

        In the ninth grade, the student attended a highly structured 15:1+1 self-contained program with a behavior modification component at respondent's high school (Exhibits C, 3). By 11th grade, as a result hard work by the student, he progressed out of that program into a special education class without the behavioral component and participated in mainstream electives. He was described as having "made great strides behaviorally and academically over the [previous] two years" (Exhibit C). While in the 11th grade, the student was reported to be unhappy in school and considered dropping out (Transcript pp. 413-14).

        The student is described as a talented artist who wishes to pursue a career in art, such as graphic design (Exhibits B, C, D, E; Transcript pp. 238-39). In furtherance of that, respondent's guidance counselor helped the student apply to a fine arts program, the Cultural Arts Program (CAP) at the Nassau County Board of Cooperative Educational Services (BOCES) Cultural Arts Center for 12th grade (Transcript p. 414; Exhibit A). However, respondent's CSE did not perceive CAP to be a special education placement (Transcript p. 86) and did not recommend that the student attend CAP. The assistant principal of the Cultural Arts Center testified that CAP is not a special education program (Transcript p. 410). Respondent did offer petitioners' son a place in its own advanced art program (Transcript p. 294).

        At a subcommittee on special education meeting held on April 26, 2001 (and which appears from the dates on the sign-in page of the IEP to have been continued on June 18, 2001) to develop an IEP for the 2001-02 school year, the subcommittee classified the student as multiply disabled (ED-OHI) and recommended special classes in respondent's high school with a student to teacher ratio of 15:1 and related services (Exhibit H). Following review of that IEP by the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to a complaint by petitioners (Exhibits 1, 3), the CSE met on November 21, 2001, at which time it classified the student as multiply disabled (ED-OHI) and recommended that the student receive daily resource room services (Exhibit 7). As a result of the parents' request to eliminate resource room services, the CSE met again on December 12, 2001, classified the student as OHI, and recommended that the student be enrolled in a 15:1 special education class with mainstreaming in all areas but the special education class (Exhibit 28). In addition, the CSE recommended, in both the November 21, 2001 IEP and the December 12, 2001 IEP, that the student receive two 30-minute counseling sessions per month (Exhibits 7, 28).

        Petitioners did not accept the CSE's recommended educational program. By letter dated March 14, 2002, petitioners requested an impartial hearing (Exhibit IHO-1). The hearing commenced on May 1, 2002 and concluded on June 10, 2002. In a decision dated August 28, 2002, the hearing officer found that although the student was not provided with an appropriate special education program during the 2001-02 school year, the student did receive educational benefit from his attendance in regular high school classes and, thus, he was not totally deprived of an educational opportunity. The hearing officer denied petitioners' request for compensatory education.

        Petitioners contend that the hearing officer erred by not awarding compensatory education. In his decision, the hearing officer found that the present levels of performance listed in the IEPs prepared for petitioners' son were inadequate, that the short-term objectives developed for the student were not drawn so that they would be of use in monitoring his progress through the school year, that the annual goals and short-term objectives lacked evaluative criteria, that the annual goals lacked specificity about what the student was expected to accomplish, that the CSE which met on November 21, 2001 was improperly constituted because it lacked a parent member, that the CSE which met on December 12, 2001 was improperly constituted because it lacked both a general education teacher and a special education teacher, that the transition plan developed by the CSE was inadequate and improperly prepared without having invited the student to participate, and that the student's classification was changed from multiply disabled to other health impaired without an adequate basis. Based upon these findings, the hearing officer concluded that respondent denied petitioners' son a FAPE during the 2001-02 school year.

        Although respondent interposed a general affirmative defense that it provided the student with a FAPE, it did not cross appeal from that part of the hearing officer's decision which found that respondent had denied petitioners' son a FAPE, as it could have done pursuant to 8 NYCRR 279.4(b). Pursuant to federal and state regulations, an impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 CFR § 300.510[a]; 8 NYCRR 200.5[i][4][ii]). Having failed to appeal from the hearing officer's decision, respondent is bound by that decision (Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal No. 98-7; Application of a Child Suspected of Having a Disability, Appeal No. 95-27).

        Although respondent is bound by the hearing officer's conclusion that it failed to offer petitioners' son a FAPE during the 2001-02 school year, it does not necessarily follow that the student is entitled to compensatory education. Compensatory education, the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation (Application of the Bd. of Educ. of the Millbrook Cent. Sch. Dist., Appeal No. 02-033), is an equitable remedy that may be awarded if there has been a gross violation of the (Individuals with Disabilities Education Act (IDEA) resulting in the denial of, or exclusion from, educational services for a substantial period of time (Garro v. State of Connecticut, 23 F.3d 734, 737 [2d Cir. 1994]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [mentally retarded student's educational residential placement was improperly terminated without notice or compliance with various procedural safeguards, leaving the student homeless with "disastrous" results]; Burr v. Ambach, 863 F.2d 1071, 1078 [2d Cir. 1988] [after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years]; Application of the Bd. of Educ. of the Millbrook Cent. Sch. Dist., Appeal No. 02-033). As an equitable remedy, an award of compensatory education must be tailored to the particular circumstances presented (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997]; Application of a Child with a Disability, Appeal No. 02-019).

        In the instant matter, petitioners' son continued to receive educational services throughout the 2001-02 school year. He started the year in a program that included special classes in English, social studies, and math; one period per month of social work services; and participation in the regular education program in all other areas (Exhibit H). In September 2001, he was switched to a regular education English class at the student's mother's request (Transcript pp. 69, 80, 300-01), and apparently given resource room support, which was reflected on a later IEP (Transcript pp. 145-46; Exhibit 7). Following a CSE meeting on November 21, 2001, the student's program was modified by having the student return to a special class for English, and the social work services were changed to two periods per month of counseling (Exhibit 7). At a CSE meeting on December 12, 2001, the resource room services were removed from the student's IEP at his mother's request; it was noted on his IEP that he participated appropriately in academic intervention services, which he attended to work on his writing, and in his special class in English (Exhibit 28). Additionally, it appears that he benefited from the educational services he received in respondent's schools. He progressed from a self-contained highly structured special education program with a behavior modification component and a therapeutic learning environment in ninth grade (Exhibits C, 3) to participation in both special and regular education classes in 12th grade (Exhibits H, 7, 28). I note that the student's 11th grade report card is a part of the record, even though the student's 12th grade report card is not, and reflects the student's ability to achieve passing grades (Exhibit 20). It must also be noted that the student was able to graduate from respondent's high school in June 2002 with a local high school diploma (Pet. ¶ 11; Answer ¶ 11).

        As noted above, compensatory education is an equitable remedy that is available when a student with a disability has been excluded from school or denied educational services for an extended period of time. I cannot conclude on this record that the flaws in petitioners' son's IEP resulted in a denial of, or exclusion from, educational services for a substantial period of time (Burr, 863 F.2d 1071; Mrs. C., 916 F.2d 69). Therefore, petitioners' request for compensatory education must be denied.

        I also note that the compensatory services sought by petitioners are not special education services. When specifically questioned whether the Nassau County BOCES CAP was a special education program, the assistant principal of the program responded that it was not (Transcript p. 410). Similarly, none of the alternative programs identified by petitioners as possible sources of compensatory education were identifiably programs designed to address a student's special educational needs (See Petitioners' Memorandum of Law pp. 48-49). Thus, even if petitioners' son were entitled to compensatory education, petitioners have failed to establish that the programs identified by them would appropriately address his special educational needs.

        I have considered petitioners' other claims and find them to be without merit.

THE APPEAL IS DISMISSED.