02-115

          Petitioner, the grandmother and guardian of a child with a disability, appeals from an impartial hearing officer's decision, which upheld the recommendation of respondent's Committee on Special Education (CSE) that her grandson be placed at the Brooklyn Transitional Center (BTC) for the balance of the 2002-03 school year. The appeal must be sustained in part.

        At the outset, I will address two procedural issues. Respondent asks that I excuse its delay and accept its late answer. Respondent states that petitioner initially agreed to a ten-day extension of time for respondent to answer the petition. However, because of the holidays, the respondent was unable to obtain the records and have the prepared answer completed and properly verified within the agreed time period. Respondent attempted to secure the consent of petitioner for a further brief adjournment to allow this but petitioner did not respond (Answer ¶ 74). In view of the brevity of the delay and the absence of prejudice to petitioner, I will exercise my discretion to excuse respondent's delay and will accept the answer. In a related matter, petitioner has submitted a reply to respondent's answer. A reply is limited to any procedural defenses interposed by a respondent or to additional documentary evidence included with the answer (8 NYCRR 279.6). The allegations contained in petitioner's reply fall outside the scope of a reply and therefore will not be considered (Application of the Bd. of Educ. of the Avon Cent. Sch. Dist., Appeal No. 02-076; Application of a Child with a Disability, Appeal No. 01-001).

        At the time of the impartial hearing in October 2002, the student was 18 years old and in the 11th grade. The student is classified as having mental retardation (Exhibit 1). Petitioner's grandson started the ninth grade in the 1999-2000 school year at Bishop Ford High School (Transcript pp. 43, 44). The student's enrollment at that private high school was not successful and as a result, he was homeschooled for the remainder of that school year (Transcript pp. 40, 43). In September 2000, the student started the tenth grade enrolled in respondent's Brooklyn Studio School (Studio) (Transcript pp. 40, 44). He was placed in the modified instructional services (MIS), basic II class, which is an inclusion program (Transcript pp. 15, 44). The student continued at Studio in the inclusion program during the 2001-02 and 2002-03 school years (Transcript pp. 21-22, 44, 48, 60). During the 2002-03 school year, the student's inclusion class consisted of two teachers, two educational aides, a group of 11 students with disabilities and a larger group of regular education students (Transcript pp. 22, 64, 73-74, 86, 90). The student received counseling and speech-language therapy as related services (Exhibits 5, 9, 10; Transcript p. 74). Petitioner's grandson also participated in a work-study program one day a week at a hospital linen department (Transcript p. 93).

        During the course of the 2001-02 school year, school personnel at Studio requested an evaluation of the student because they believed that he was in need of a program that would provide him with independent living skills (Exhibit 6). Respondent conducted a speech-language evaluation in February 2002. The student's score on the Clinical Evaluation of Language Fundamentals–Third Edition (CELF-3) showed performance at an age equivalent of a five-year-old and indicated expressive and receptive language deficits and poor pragmatic skills. The evaluator reported that the student had difficulty asking for assistance and that his responses to questions were often not on topic. The evaluator indicated that the student also had difficulty in initiating and maintaining a conversation. The evaluator further concluded that the student had a hard time taking notes, following directions, interpreting schoolwork, combining sentences and formulating descriptions (Exhibit 9).

        Respondent conducted an educational evaluation of petitioner's grandson in March 2002. The evaluation included administration of the Woodcock-Johnson III Tests of Achievement (W-J III). The educational evaluator found the student's overall communication skills to be inadequate and far below grade level. On the W-J III, petitioner's grandson achieved at a 2.7 grade equivalent score in reading. His letter and word identification was weak and his comprehension poor. The student's grade equivalent score for overall reading fluency was at the 3.4 grade level. His writing ability was inadequate, far below grade level, and he was unable to write complex sentences. The student's spelling and grammar were poor and he could not expand on his thoughts. He achieved a 2.4 grade equivalent score in math calculation, indicating functioning far below grade level. He could not perform subtraction that required regrouping and he was unable to perform math problems that required more than two steps. The student also had difficulty solving word problems, telling time, counting money and measuring (Exhibit 4).

        A school psychologist employed by respondent conducted a psychological evaluation in April 2002. The evaluator reported that testing on the Wechsler Adult Intelligence Scale–Third Edition (WAIS-III), yielded a verbal IQ score of 66, a performance IQ score of 59 and a full scale IQ score of 61, placing the student in the mildly deficient range of cognitive functioning. The evaluator noted that the student's short-term memory was in the borderline range and that he had weak and immature verbal and communication skills, indicating communication difficulties and auditory and learning difficulties. On the Vineland Adaptive Behavior Scale, conducted with information from petitioner, the student received significantly delayed scores and was in the low range in the areas of communication, daily living and socialization. He was unable to alphabetize words, correctly count change, or tell time accurately. I note that the record does not indicate whether petitioner's grandson had been taught these skills. Further, the evaluator wrote that petitioner's grandson reported that he gets along well with others but has no friends. The student also reported good relationships with family members and adults, but that he often felt frustrated, inadequate, and helpless. The evaluator reported that the student wanted to live the rest of his life with his mother and that he expressed a desire to remain dependent upon his mother and grandparents. The psychologist reported that the student described himself as being unhappy in school, and feeling overwhelmed. The psychologist concluded that petitioner's grandson needed to receive instruction in daily living skills and social skills to become more independent. He also concluded that the student was unable to use money, tell time, or travel independently and that he could benefit from instruction in these areas (Exhibit 5).

        Respondent prepared a vocational assessment in April 2002. The assessment was cursory and a single page in length. The student described himself as being very unhappy in school and reported that he had no post-high school plans. Additionally, he expressed no desire to go to work or school but wanted to remain with his mother and be dependent on her. The assessment also indicated that the student was working at a hospital doing laundry and that he demonstrated a high vocational interest in building trades, horticulture, housekeeping, and laundry service (Exhibit 7).

        Respondent prepared a related services counseling report in May 2002. The report indicated that petitioner's grandson seemed to be unaware of his feelings and was unable to initiate informal conversation in groups or relate to his peers in group discussions. The report characterized the student as always cooperative and one who stayed to himself. The report concluded that the student needed to develop independent living skills and social skills (Exhibit 9).

        In May 2002, respondent also conducted a classroom observation. The student was well behaved in class but did not participate in the lesson. His teacher reported to the observer that the student had little contact with other students, did not understand the work, and required a great deal of individual attention in order to function minimally (Exhibit 8).

        In May 2002, the student's teachers at Studio requested a review of his placement because they did not believe the program was meeting the student's emotional, academic and social needs (Exhibit 3). An educational planning conference team (EPCT) reviewed the assessments and evaluations of the student on May 22, 2002. The EPCT recommended a special class in a special school with a staffing ratio of 12:1+1. It also recommended counseling and speech-language therapy as related services. The student's grandmother disagreed with the recommendation and requested that respondent's CSE review the matter. On June 5, 2003, the CSE reviewed the recommendation of the EPCT. Respondent's CSE concurred with the recommendations of the EPCT. It also recommended that the student be enrolled in a special class in a special school with a staffing ratio of 12:1+1 at the BTC and that he receive counseling and speech-language therapy as related services (Exhibits 2, 15). Petitioner disagreed with the CSE's recommendation and in accordance with respondent's procedures, requested a review by a different CSE (Transcript pp. 16, 50-51). That CSE met on September 5, 2002. That CSE agreed with the June CSE and recommended an individualized education program (IEP) for petitioner's grandson (Exhibits 1, 14; Transcript p. 16). That CSE also recommended that the student be enrolled in a special class at BTC and that he receive group and individual counseling and speech-language therapy (Exhibit 1). Petitioner disagreed with this recommendation and an impartial hearing was scheduled with respect to the appropriateness of the CSE's recommendation that petitioner's grandson be enrolled at BTC.

        The hearing was held on October 30, 2002. The hearing officer rendered a decision on November 15, 2002. She found that the student's program at Studio did not meet his needs and that the program recommended by respondent's September 5, 2002 CSE meeting was an appropriate educational program in the least restrictive environment (LRE). Petitioner appeals from the hearing officer's decision.

        On appeal, petitioner disputes her grandson's classification, however this issue was not raised below. An issue which is not raised at a hearing is beyond the scope of my review (Application of a Child with a Disability, Appeal No. 01-032; Application of a Child with a Disability, Appeal No. 99-060; Application of a Child with a Disability, Appeal No. 98-14) and is not properly raised in an appeal to the State Review Officer (SRO) as there is no record upon which it could be decided (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-045; Application of a Child with a Disability, Appeal No. 01-038). Because petitioner did not dispute the student's classification during the hearing I will not consider that issue.

        Among other things, the petition states disagreement with the CSE's recommendation that her grandson be placed at BTC, and asserts that the IEP does not address the grouping of petitioner's grandson with children of similar needs, nor meet the student's needs. The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]), and it is the student's IEP that tailors a student's program to his or her unique needs (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]). 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]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 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. 02-059; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must indicate the individual needs of the student in the areas of academic or educational achievement and learning characteristics, social development; physical development and management needs (8 NYCRR 200.4[d][2][i]). A student's needs relating to academic or educational achievement and learning characteristics includes those relating to activities of daily living and adaptive behavior (8 NYCRR 200.1[ww]).

        Among the purposes of the IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; See also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth-specific requirements related to transition planning and transition services (id.). For students 14 years of age and older, the IEP must include a statement of the student's transition service needs in the applicable portions of the IEP (34 C.F.R. § 300.347[b][1]; 8 NYCRR 200.4[d][2][viii]). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]). For such students, the IEP is also required to include a statement of needed transition services, including, if appropriate, a statement of the interagency responsibilities or any needed linkages with other service providers (34 C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), as well as a statement of the student's projected post-school outcomes, based on his or her needs, preferences, and interests, in the areas of employment, post-secondary education and community living (8 NYCRR 200.4[d][2][ix]).

        With respect to this, transition services are defined as:

a coordinated set of activities for a student with a disability that –

(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(2) Is based on the student's needs, taking into account the student's preferences and interests; and

(3) includes --

(i) Instruction;

(ii) Related services;

(iii) Community experiences;

(iv) The development of employment and other post-school adult living objectives; and

(v) If appropriate, acquisition of daily living skills and functional vocational evaluation.

(34 C.F.R. § 300.29; see also 8 NYCRR 200.1[fff]).

        The student has significant educational and social needs. At the present time, in light of his age and his needs, preparing him for independent living and employment by providing him with appropriate transition planning and transition services is a critical educational need. There was testimony from the assistant principal of BTC regarding the student's proposed program, however that testimony did not explain how the proposed program would adequately address the student's specific transitional and other educational needs. I also note here that the record did not show that petitioner's grandson would have been suitably grouped for instructional purposes with students having similar individual needs with regard to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom (see 8 NYCRR 200.6[a][3], [g][2] and [3]), (Application of a Child with a Disability, 02-045; Application of a Child with a Disability, 01-073; Application of a Child with a Disability, Appeal No. 01-068).

        Further, the student's IEP (Exhibit 1) did not adequately describe the student's transition needs, including his independent living and vocational training needs, areas of particular importance in light of the fact that the student was 18 years of age (see 8 NYCRR 200.4[d][2][i][c], 200.1[fff]; see also 34 C.F.R. § 300.347[b][1]). Moreover, the IEP's statement of his educational needs and learning characteristics did not include an assessment of his needs relating to activities of daily living and adaptive behavior which would be relevant to the delayed development of the student's independent living skills (8 NYCRR 200.4[d][2][i], 200.1[ww]). Importantly, notwithstanding the fact that petitioner's grandson was 18 years old, the CSE did not have an adequate vocational assessment of the student (see 8 NYCRR 200.4[b][6][vii][ix], 200.4[d][2][I][c]) but only one that provided inadequate and too limited information (Exhibit 7). Although the IEP includes a set of long-term adult outcomes (see 8 NYCRR 200.4[d][2][ix]), they are general and inadequate. Long-term outcomes are required to be based in part on the student's needs, preferences, and interests, in the areas of employment, post-secondary education, and community living. The deficiency in long-term outcomes may have been a reflection of respondent's inadequate evaluation of the student's vocational needs.

        Additionally, an IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs which arise from his or her disability (see 34 CFR 300.347[a][2]; Application of a Child with a Disability, Appeal No. 00-058). Although respondent has proposed that the student participate in a vocational program and that the student has significant independent living deficits (see Exhibit 5), none of the goals and objectives are related to increasing the student's independent living or vocational skills (see Exhibit 1 pp. 11-14). The IEP has no goals and objectives to address the student's vocational needs.

        Further, the description of transition services in the IEP that is required by 34 C.F.R. 300.347[b][2]; 8 NYCRR 200.4[d][2][ix] is inadequate and vague. I note that this also may be reflective of the absence of an adequate vocational assessment. With respect to the description of needed transition services, respondent has not identified the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) or any other agency as appropriate to assist with any transition services to the student. It is important that appropriate agencies be involved in the transition process for older students even prior to the time they provide services to such a student (Application of a Child with a Disability, Appeal No. 99-095). Without an adequate description of the student's transition needs, including those relating to independent living and vocational training, the CSE lacked a sufficient basis to formulate an IEP that would appropriately address those needs (Application of a Child with a Disability, Appeal No. 02-111).

        The speech-language and educational evaluations are adequate, and the information on the IEP describing his needs in these areas is actually quite helpful (Exhibit 1 pp. 5-7). The IEP describes the student's need for direction provided in small simple steps with opportunity for repetition and immediate feedback, information that would be useful for a vocational instructor. Likewise, the description of his academic performance levels and his expressive language skills would be helpful in developing a vocational program.

        Unfortunately, speech-language goals do not adequately reflect the useful information provided, as they do not address how his deficits translate into vocational needs. Three of the goals reflect his expressive language deficits relating to conversational speech, which is not his priority need at this time. The first speech-language goal, "to improve semantic behavior" (Exhibit 1 p. 11) includes three generally stated objectives which, if met, would be helpful in a vocational setting in that they address his need to understand directions and seek assistance if he does not. None of the speech-language goals address his deficits in understanding of directions, a critical concern if the student is to be placed in vocational settings in which he would be expected to follow directions.

        In the area of academic needs, the IEP has one goal each for reading, language arts, study skills and math (Exhibit 1 pp. 11, 14). None of the goals reflect his needs in the vocational arena. Given his low reading and writing levels, the IEP should include goals for reading and following written instructions, reading bus schedules, and filling out simple forms such as job applications and time sheets. Math goals should address identified deficits in telling time, counting money and using measurements, more critical at this point in his educational career than the IEP goal for third grade multiplication. The organizational goal for completion of school assignments would be more appropriate if revised to address the need to complete on-the-job assignments.

        In the area of counseling needs, the most significant concern raised in the vocational evaluation is not included on the IEP. This student is described in the record as highly dependent on his grandmother and, significantly, as having no desire to be employed or independent after completing his education. The statement on the IEP regarding counseling refers merely to "group counseling to address social/emotional issues" and makes no reference to his unrealistic life plan (Exhibit 1 p. 8). The IEP has one goal to address the student's ability to understand and appropriately address his feelings (Exhibit 1 p. 12). This may or may not be a counseling goal – the format of the document and the language in the objectives suggest that it may also be a speech-language goal (id.). Regardless, it is not the student's priority. His priority is to develop some level of understanding and acceptance of what will happen to him after graduation. The IEP should include at least one goal to explore vocational options, coupled with a counseling goal to address development of an understanding of why a vocation is necessary.

        Respondent has recommended that petitioner's grandson receive individual and group counseling. Petitioner has taken a very active interest, and played an important role, in her grandson's education. She has also worked diligently to assist her grandson in his schooling. In light of this and petitioner's continuing interest in the appropriateness of her grandson's educational programming, respondent is encouraged to provide her with the opportunity to be included, as appropriate, in the student's counseling program.

        Because of the student's age, it is extremely important to provide him with a program that will prepare him for employment and independent living. With this in mind, I find that respondent's failure to perform an adequate vocational assessment, the failure to identify his transition needs and his needed transition services to address those needs, and the absence of important annual goals and short-term objectives or benchmarks, has resulted in formulation of an education program not reasonably calculated to provide educational benefit. Accordingly, I conclude that respondent has failed to establish that it offered petitioner's grandson a FAPE (Application of a Child with a Disability, Appeal No. 02-111; see Application of a Child with a Disability, Appeal No. 02-015). In light of this determination, it is unnecessary to consider further the issues raised by petitioner in this appeal.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled insofar as she determined that respondent recommended an appropriate program for petitioner's grandson; and

IT IS FURTHER ORDERED that within 30 days of the date of this decision, unless it has already done so subsequent to the filing of this appeal, respondent shall conduct a comprehensive vocational evaluation of the student; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 30 days of the date of this decision, respondent's CSE must meet and develop, an appropriate IEP, based in part upon the results of the required comprehensive vocational evaluation. The IEP must include a statement of the student's transition service needs; a statement of the student's needed transition services, including a statement of appropriate interagency responsibilities and needed linkages; and a statement of the student's projected post-school outcomes; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 30 days of the date of this decision, respondent's CSE meet and develop an appropriate IEP providing for an appropriate placement in the LRE.