03-010

     Petitioner, the East Greenbush Central School District (district), appeals from a impartial hearing officer’s (IHO) decision granting respondent's son compensatory education in the form of reimbursement for tuition and other ancillary expenses, and granting respondent reimbursement for an independent neuropsychological evaluation. Petitioner also appeals the method used by the hearing officer in determining the extent of the compensatory education granted. The appeal must be sustained in part.

        In 1991, the student was classified as a student with a learning disability. The student continued to be so classified until his graduation from high school in June 2002. From the date of his classification until the date of graduation, individualized education programs (IEPs) were developed for the student. On June 6, 2002, the same month when the student was scheduled to graduate from high school, the parent requested an impartial hearing alleging that her son had been denied a free and appropriate public education (FAPE). The parents sought and were denied permission from the district to obtain a neuropsychological evaluation at public expense. The district thereafter filed for an expedited hearing that gave rise to the various issues in contention in this appeal. The student is currently enrolled in non-credit courses at Landmark College.

        The IHO found that the student had been denied a FAPE upon the testimony of various district educators who established that the student’s level of achievement throughout the period of disability in question was substantially below grade level (Transcript pp.12-14). A special education teacher, who taught the student in the eleventh grade, testified that the student’s IEP goals regarding certain phonetic keys had not been addressed because no reading teacher in the district had attempted to teach the student phonics (Transcript pp. 234). The same teacher testified that the needs of the student were more intense than she could handle and that, although a change in the student’s reading program was indicated on his IEP, she neither looked for nor recommended another reading program (Transcript p. 240). She further testified that she indicated on the student's IEP progress report that the student made "some progress" toward reading goals when she did not know what progress had been achieved (Transcript p. 244). She stated that she based her assessment of the student’s reading progress on his performance in subjects other than reading (Id.). Moreover, although the district and the independent evaluator recognized the student was dyslexic, the student never received instruction from a professional trained to teach dyslexic students. Another district teacher also testified to numerous deficiencies in the program. Notably, she testified that she did not recommend individual reading instruction to the committee on special education (CSE) because she was told by the district that individual instruction "was not going to happen" (Transcript p. 395). She did, however, discuss the need for individual instruction with the special education teacher, who was the representative through whom progress and recommendations were conveyed to the CSE. The special education teacher reportedly agreed with the recommendation for individual reading instruction (Transcript pp. 392, 393). The IHO found that the student had been denied a FAPE.

        The IHO determined that an award of compensatory education for the entire period during which the student was denied a FAPE was appropriate. The IHO reasoned that the parents' time to file an objection to the IEP that was developed throughout the years had been tolled because of misleading information provided in the progress reports and because of misrepresentations that the district made to the mother about the prospects of her son achieving any improvement in his performance.

        Petitioner’s motion to annul the decision of the IHO upon the grounds that the IHO should have recused himself because of an actual conflict or because of an appearance of impropriety arising out of the IHO’s involvement in a lawsuit against the district is denied. The record contains substantial evidence to support both the factual findings and legal conclusions reached by the IHO. I note, however, that IHOs should avoid even the appearance of impropriety.

        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).

        The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Educ. Dept. Rep. 487 [1983]). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show that (1) it complied with the procedural requirements set forth in the IDEA, and (2) the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        In the instant case, the IEP evaluations for the eleventh grade indicated that the student was in the 7^th percentile for vocabulary and in the 6^th percentile for comprehension. The evaluations carried out in the twelfth grade indicated that the student performed at the 7^th percentile or 3.7 grade level when timed. There was an improvement when the diagnostic testing was not timed. When untimed the student performance placed him in the 64^th percentile for comprehension and the 26^th percentile for vocabulary. Testing in the earlier years showed similar below grade performance. In addition to the student's low grade performance, various teachers testified that the student needed but did not receive individual instruction. The evidence also shows that the student was not being instructed by a professional trained in teaching students with dyslexia or dysgraphia, and that IEP evaluations were submitted to the CSE with knowledge that they did not accurately reflect the student’s level of achievement. Accordingly, I must conclude that there was substantial evidence to support the hearing officer’s finding that the district denied the student a FAPE for an extended period of time. I further concur with the IHO’s finding that the cited deficiencies are a gross violation of the IDEA.

        There is also substantial evidence to support a finding that the deficiencies in the IEP were not limited to that time period when the parents could have interposed a "timely" objection. A parent’s failure to object to a proposed program authorizes a school district to implement the proposed program. The parent’s failure to object, however, does not render an otherwise insufficient IEP sufficient. This is so especially where, as in this case, the evidence demonstrates that the parent was also learning disabled, she relied on the professional educators to address her son's deficiencies, and she was led to believe that her son was making substantial progress in light of his disability.

        The parent’s time to object begins to run when the parent knows or has reason to know that the IEP is insufficient (Leon v. Murphy, 988 F.2d 303 (2d Cir. 1993). Here, the parents had no reason to know that their son was being denied services because the IEP recommendations all indicated that the student would get reading services. Regrettably, and unbeknownst to the parents, although known by the various teachers who had contact with the student, the reading services were not adequately tailored to address the student’s very severe disability.

        The obligation to implement a sufficient IEP and thus provide a student with a FAPE rests with the school district. Where, as here, the evidence supports a finding that the district denied the student a FAPE for an extended period of time, it is appropriate to provide a remedy that is calculated to place the student in the same position where the student would be if an appropriate program had been implemented during the years when the student was eligible for special education under IDEA.

        The record reveals that the student has made substantial progress at the Landmark College where they utilize the Wilson Reading Method ("Wilson") and provide the student with individual as well as group reading assistance. It appears that employment of the Wilson program has produced beneficial results for the student.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is sustained in part; and

IT IS FURTHER ORDERED that the district provide the student with compensatory education in the form of reimbursement for the projected cost of the student's reading program as it is implemented at the Landmark College; and

IT IS FURTHER ORDERED that reimbursement for tuition, room and board, travel "and all required fees and expenses" as well as the costs of a lap top computer are denied, except to the extent that such costs and/or fees are specifically associated with the implementation of the reading program and not included in the projected costs referred to in the preceding paragraph; and

IT IS FURTHER ORDERED that if the student chooses to avail himself of a reading program other than the program offered at Landmark College, the district is only required to provide reimbursement in an amount equal to or less than the cost of the reading program at Landmark College; and

IT IS FURTHER ORDERED that the district's obligation to provide the student with compensatory education shall last no more than three years; and

IT IS FURTHER ORDERED that for the reasons articulated by the IHO, reimbursement for the costs of the independent evaluation is granted.