03-011

      Petitioners appeal from an impartial hearing officer’s decision that found that the claims raised by petitioners were moot because petitioners and the district had agreed to a change of placement, the school year was over, and the student was no longer attending a school in the district. The appeal must be sustained in part.

        Respondent asks that I excuse its delay in answering the petition, which was served upon it on or about February 3, 2003. However, after reviewing their submission, I find that respondent has not established a good cause for its delay of approximately six months. Therefore, I will not accept its answer (Application of a Child with a Disability, Appeal No. 01-028; Application of a Child with a Disability, Appeal No. 00-017). Nonetheless, I am required to examine the entire record (34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.3 (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        At the time of the hearing, the student was fifteen years old, in the tenth grade and had been classified as other health impaired. The student was diagnosed with Adjustment Disorder, Attention Deficit Hyperactivity Disorder (ADHD), auditory processing disorder, and expressive writing disorder. On September 26, 2002 the child's guardian sent a letter to the district outlining items that had not been addressed in the student's individualized education program (IEP), but had been recommended by the committee on special education (CSE) (Exhibits D-5 and D-42). The IEP was updated on October 30 to include those items including an updated Functional Behavioral Assessment (FBA) and Behavior Intervention Plan (BIP). The purpose of these behavioral interventions were to decrease the number of times the student was not in his assigned area and to decrease the number of missing or incomplete homework assignments. During that first semester, the student was suspended once in school and once outside of school for smoking. During each suspension, the student was provided with instruction.

        In January 2002 a request was made for an impartial hearing. The district and the guardians agreed on additional changes to the IEP and a settlement was explored but failed to materialize (Transcript p. 10). The impartial hearing began on April 8, 2002 and continued on twelve separate dates until October 24, 2002. At the April 18, 2002 hearing the guardians asked for coordination of services between the school and the student's private drug counselor, but were unwilling to provide a release for the district to obtain the information and coordinate the services. In April 2002 the student was arrested for possession of and being under the influence of marijuana. A CSE manifestation meeting was held. The CSE determined that the student's IEP was inappropriate and an Interim Alternative Placement was required. On May 7, 2002 the CSE recommended that the student be placed in a day treatment program to treat his depression and addiction. The student and his guardians agreed to placement at the Ormsby Center (Center) on May 30, 2002 for the remainder of the school year (Exhibit Z-22). However, on his first day at the Center, the student was arrested for petit larceny and spent seven days in jail. The student was subsequently placed at Renaissance House, an inpatient treatment facility for adolescents with addictions.

        During his incarceration, the student received no educational services because the district did not know where the student was located. The guardians requested and the district agreed to provide compensatory services for the time the student missed due to his incarceration, and to provide instruction to the student while he was in the residential drug rehabilitation center.

        On January 6, 2003 the impartial hearing officer dismissed the claim as moot. Petitioners appeal from the decision of the impartial hearing officer because they believe the issues were not moot. Petitioners maintain that the CSE failed to comply with the notice requirements for transition services, that the IEP from September until May was inadequate, that the transition services were inadequate, and that the district unreasonably delayed the hearing.

        Petitioners claim that the IEP developed by the district in September was inadequate because it did not recognize that the student's addiction was a manifestation of his disability. Petitioners point to the fact that in May 2002 the district recognized this fact and found the student's IEP inappropriate and that an alternative placement was required. Petitioners also believe that the student required more curriculum modifications because he was failing (Transcript p. 33).

        The fact that the district changed the student's IEP eight months later is not proof that the September IEP was defective. The law is clear that hindsight is not a basis for questioning the appropriateness of an IEP, but that the IEP should be judged as a "snapshot" of the student at the time of the CSE meeting (Roland M. v. The Concord School Committee, 910 F.2d. 983 at 922 [1^stCir. 1990]). The September 2001 IEP was appropriate for the student at that point in time. When the guardians asked for changes, the district was responsive to those changes. Drug addiction and drug prevention services are not the type of related services required to be provided by the school under the Individuals with Disabilities Education Act (IDEA) (Armstong by Steffensen v. Alicante School, 44 F. Supp 2d 1087 [ED Cal 1997]). The fact that the student's drug use and depression escalated during the school year, causing the district to change the student's placement in May 2002, does not mean that the IEP was inappropriate in September 2002. As to petitioners' request for a modified curriculum, the student's progress report for the 2001-02 school year shows poor but passing grades in all subjects with a final average of 70.9 (Exhibit D-107) despite a high number of illegal absences.

        I am troubled, however, by the lack of appropriate transition services in the September IEP. 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 future 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; Seealso 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). 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.

        Under C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), 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 IEP contains no coordinated plan designed to move the student from school to post-school activities that takes into account the student's needs and preferences. As his guardians have pointed out, this issue is of particular importance to this student because their guardianship ends when the student reaches the age of eighteen. Although petitioners have requested compensatory education to extend beyond the time the student reaches his twenty-first birthday, I find that because the student is well under the age of twenty-one, the district has adequate time to make up for the transition services it did not provide. The record indicates that the student is interested in pursuing a career in law enforcement. The district should determine if this is still the case and provide him with community experience to facilitate his transition from school to post-school.

        I further note that the student has been placed in a rehabilitation facility for an extended period of time. When the student is released from that facility, I find it necessary that the CSE meet and incorporate into the student's IEP any educational services recommended by said rehabilitation facility.

        I have considered petitioners' remaining procedural arguments and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be annulled; and

IT IS FURTHER ORDERED that the CSE meet and develop a new IEP with appropriate transition services as required by law, and, upon release from the rehabilitation facility, incorporate into the IEP those education services recommended by the rehabilitation facility; and

IT IS FURTHER ORDERED that the district provide the compensatory services as previously agreed to and additionally provide compensatory services for their failure to provide adequate transition services.