Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Niskayuna Central School District
Nolan & Heller, LLP, attorneys for petitioners, Robert G. Wakeman, Esq., of counsel
Higgins, Roberts, Beyerl & Coan, P.C., attorneys for respondent, Michael E. Basile, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which modified the individualized education program (IEP) prepared on March 4, 2003 for their child by respondent's Committee on Special Education (CSE) for the 2002-03 school year. Petitioners contend that the modified IEP was inappropriate for the 2002-03 school year, and seek an award of compensatory education, as well as reimbursement for privately obtained educational services, evaluations, and attorneys' fees. The appeal must be sustained in part.
I note as a preliminary procedural matter that petitioners have requested oral argument before the State Review Officer. Such argument is authorized by the rules governing appeals to the State Review Officer only in the event that a State Review Officer determines that oral argument is necessary (8 NYCRR 279.8). I find that oral argument is not necessary in this matter, therefore this request is denied.
At the time of the request for an impartial hearing on the 2002-03 IEP, petitioners' son was 11 years old and was reportedly receiving educational services at home (Transcript pp. 47-48). Briefly, petitioners' son has a history of hydrocephalus, ventriculomegaly, asthma, and a serious seizure disorder (Exhibit G, p. 7). He was classified as other health impaired by respondent's CSE and provided with related services in respondent's Glencliff Elementary School (Glencliff) from kindergarten through second grade (see Exhibit 5-I; Transcript pp. 408, 413). During this time the student demonstrated difficulty mastering basic reading, writing, and math skills (Exhibit 5-G). In May of 1999, when the child was seven years old and finishing the first grade, the parents obtained a private psychological evaluation which diagnosed the child with pervasive developmental disorder not otherwise specified (PDDNOS) (Exhibit G, p. 7). His difficulties with social interaction, communication, and rigid, compulsive and repetitive behaviors reportedly placed him at the mild end of the autism spectrum (Exhibit G, pp. 7-8). On June 4, 1999 the CSE met and developed an IEP for the student for the 1999-2000 school year which continued to place him at Glencliff in regular education courses with related services consisting of speech, occupational, and physical therapy, as well as resource room and counseling services (Exhibit 5-I). In February of 2000, the child suffered severe seizures which required hospitalization (Transcript pp. 417-19). The student was placed on medication to control his seizures (Exhibit 5-H). After returning to school in April 2000, the student exhibited increased cognitive and behavioral problems (Transcript p. 420; Exhibit 5-H). The private psychologist hired by the district observed the student on several occasions in the spring of 2000, and prepared a functional behavioral assessment (FBA) on the student later that summer (Exhibit 9).
On June 5, 2000 the CSE met to develop an IEP for the student for the 2000-01 school year (Exhibit 5-H). First, the CSE recommended that the child be placed in an extended year program to avoid regression, and placed him in the Easter Seals camp program for the summer of 2000 (Exhibit 5-H). The CSE also recommended that a behavioral management plan be continued (Exhibit 5-H). As to the 2000-01 school year, both the parents and the district were in agreement that, because the student's seizure disorder forced him to miss a significant portion of the 1999-2000 school year, the student should repeat second grade (Transcript p. 430). For the 2000-01 school year, the CSE placed the student at Birchwood Elementary School (Birchwood) in 8:1:1 all special education classes with a part time 1:1 teacher's aide (Exhibits 5-H, 5-G). He was also provided with the related services of speech, physical, and occupational therapy, as well as counseling services (id). The CSE recommended that the student be placed in Birchwood with the understanding that the parents agreed, and because Birchwood was where the recommended class was located (Transcript p. 35).
The following year, on June 7, 2001, the CSE met and developed an IEP for the summer of 2001 which classified the child for the first time as autistic, and recommended that his needs required that he be placed in a day program at Crossroads Center for Children (Crossroads), a private, special education school (Exhibit 5-F). His IEP continued to specify that he receive the same related services and the 1:1 aide he had at Birchwood, but added the services of a 1:1 nurse for three hours daily (id.). On August 31, 2001, the CSE met and recommended that the student remain at Crossroads for the 2001-02 school year for the third grade in 6:1:2 special education classes (Exhibit 5-E). The IEP specified that the child would receive related services of physical therapy for 30 minutes twice per week, speech therapy for 30 minutes five times per week, occupational therapy for 30 minutes three times per week, a psychological consult for 60 minutes twice per month, an educational consult for 60 minutes three times per month, 1:1 nursing services for three hours five times per week, and a special reading class for 60 minutes once a week (Exhibit 5-E; see also Exhibits 5-D, 5-C, 5-B). A full time 1:1 aide was added to the IEP in January of 2002 (Exhibit 5-C). In May 2002, in response to petitioners' concerns over their son's rate of progress, respondent began providing the student with additional services of a special education teacher from Options With Learning (OWL), which were provided at the student's home and paid for by respondent (Transcript pp. 44-45, 476-77).
On June 20, 2002, the CSE met to develop an IEP for the student for the summer of 2002 (Exhibit 5-A). The district originally offered the student a center-based program, but petitioners declined the program due to their son's medical condition (Transcript pp. 480-82). As a result, the summer 2002 IEP placed the student in a 1:1 home instruction program provided by respondent through OWL, which included five hours per week in reading, one hour per week for math, and a full time aide (Exhibit 5-A).
On August 20, 2002, the CSE met to develop an IEP for the student for the 2002-03 school year (Exhibit 6). The CSE recommended that the student be placed in Birchwood in 12:1:1 special education classes for all subjects (id.) Related services consisted of physical therapy twice per week for 30 minutes, speech therapy five times per week for 30 minutes, occupational therapy three times per week for 30 minutes, psychological counseling quarterly for 60 minutes, nursing services, a full time 1:1 aide, and a reading consult (id.). The IEP specified that the student required a highly structured environment in order to be successful (Exhibit 6 pp. 2-3), and benefited greatly from direct teaching in a 1:1 setting with verbal prompting and repetition, which was provided in the classroom in a discrete training format using techniques of applied behavior analysis (Exhibit 6.) The IEP also noted that the student had sensory processing problems which interfered with his ability to learn and that he was sensitive to loud noises and busy environments (id.) It was noted in the IEP that the student had shown improvement in dealing with his sensory problems in the environment, but would regress after extended absences from the school routine (id). The IEP also referred to a behavioral modification plan, which employed a token economy and techniques of Differential Reinforcement of Other Behavior (DRO) to manage the student's behaviors and to keep him on task (id.). The IEP specified that the student suffered from seizure disorders in the past, and required that all staff undergo seizure and first aid training during the first four weeks of school, and whenever new staff is added (id.). A full time aide was to provide follow up on sensory integration impact, monitor for seizure activity, and assist in visual learning strategies (id.).
At the CSE meeting petitioners objected to the recommended placement at Birchwood, and requested that their child continue to receive home instruction for medical reasons (Transcript pp. 49, 619). The CSE noted in the IEP that it agreed to recommend continuation of a home-based special education program with related services delivered at home, pending requested medical documentation to be provided by the parent (Exhibit 6). By letter dated September 3, 2002, petitioners rejected the 2002-03 IEP, and requested "due process, beginning with mediation" (Exhibit 4). A hearing date was scheduled for early October 2002, but was postponed when the parents provided the CSE with a letter from the student's neurologist supporting a home program due to the student's fragile medical state (Transcript pp. 47-48; Exhibit H). The CSE reconvened on October 9, 2002, and the district and the parents reportedly came to an agreement whereby the student would remain on a home instruction program which included special education teacher services, speech, occupational, and physical therapy, at the district's expense, during the "pendency" of the dispute (Transcript pp. 47-48). Over the next several months petitioners and respondent attempted to resolve their dispute over the student's IEP.
According to the administrator for student support services, in late 2002 or early 2003, petitioners determined that their son was ready to return to school (Transcript p. 50). On March 4, 2003 the CSE met and developed a new IEP for the student, which continued to recommend that the student be placed at Birchwood with essentially the same services recommended in the August 2002 IEP (Exhibit 1). By letter from their attorney dated March 14, 2003, petitioners formally requested an impartial hearing on the 2002-03 IEP, seeking compensatory education and reimbursement for the private educational services obtained by the parents for that school year (Exhibit 2). A hearing was held on April 28, April 29, May 6, and May 7, 2003, and the impartial hearing officer rendered a decision dated June 25, 2003.
In her decision, the hearing officer found that the IEP prepared by the respondent's CSE was lacking in certain areas. She determined that: (1) the maximum class size for the child should not exceed six students with at least one paraprofessional assigned to the class; (2) the child should continue to be assigned an individual aide; (3) the child's team must develop a strategy regarding restraint; (4) all school staff who are working with the child should have seizure training before school begins in September 2003; and (5) the IEP should include goals and objectives for each subject area, as well as behavioral goals. The decision also directed that the IEP include a behavioral intervention plan and that it provide that the child receive a multisensory approach to learning (see IHO Decision p.11).
Petitioners appeal the hearing officer's decision1, and request that respondent be ordered to develop an IEP for the child to be implemented in Glencliff, the district school closest to petitioners' home, that includes the following: (a) the environment must be highly structured and therapeutic; (b) the class size must be no more than six students; (c) one on one instruction with the special education teacher must occur daily in all subjects; (d) the program must be designed for students with severe sensory difficulties; (e) the classroom environment must not be too noisy and over stimulating; and (f) the staff must have formal training in seizure disorders prior to the beginning of the school year. In addition, petitioners request reimbursement for private services, evaluations, and attorneys' fees, as well as compensatory education.
Initially, I note that any claims raised by petitioners are limited to the events occurring one year from when they knew or should have known of the alleged inappropriate program (see M.D. v. Southington Bd. of Educ., 334 F.3d 217 [2d Cir. 2003]; Application of a Child with a Disability, Appeal No. 02-119), which in this case would be from the date petitioners first rejected the CSE's August 2002-03 IEP in their letter to the district dated September 3, 2002. Regarding petitioners' request for revisions to the 2002-03 IEP, I note that many of petitioners' requests were either granted by the hearing officer's decision and order, or were already contained in the 2002-03 IEPs. In any event, the State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9). Since the 2002-03 school year is now over, I find that no useful purpose would be served by ordering additional changes to the 2002-03 IEP (Application of a Child with a Disability, Appeal No. 01-023), or directing that services for that year be provided at Glencliff (Application of the Bd. of Educ. of Carmel Cent. Sch. Dist., Appeal No. 01-105).
In reference to petitioners' claim for reimbursement for privately obtained evaluations, the regulations specify that if a parent is dissatisfied with a district's evaluation, he or she may request an independent educational evaluation (IEE), at which point the district may either call an impartial hearing to defend its evaluation, or provide for an IEE at public expense (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]). At the impartial hearing, if the hearing officer finds that the district's evaluation was appropriate, the parents are not entitled to reimbursement for their privately obtained IEE (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g][v]). In the present proceeding, petitioners have not only failed to identify in their petition or memorandum of law which of respondent's evaluations they are objecting to, but also fail to point to which, if any, private evaluations obtained during the 2002-03 school year2 are the subject of their reimbursement request. Under these circumstances, without knowing which district evaluation(s) are being challenged for appropriateness or what private evaluation(s) petitioners are seeking reimbursement for, I find that I have no basis in the record upon which to determine whether or not petitioners are entitled to reimbursement for any evaluations.
Concerning petitioners' request for reimbursement for private services they obtained for their child during the 2002-03 school year, petitioners bear the burden of proof with regard to the appropriateness of the services they obtained for their son (Application of a Child with a Disability, Appeal No. 01-043; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, they must show that the services they obtained were reasonably calculated to meet the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 01-043; Application of a Child with a Disability, Appeal No. 94-29). The record provides little if any evidence of the services for which petitioners are seeking reimbursement. Regarding the services of a special education teacher during the year, petitioners concede that respondent directly paid for the services of a special education teacher for the student from at least October 2002 until February 14, 2003, when the provider resigned (Transcript pp. 611, 619-620, 68-69, 104, 706). While respondent searched for a replacement, petitioners claim they hired a special education teacher for a few weeks and paid him for one week's services (Transcript pp.700-701), but they submit no documentation of this or of the services he provided. Respondent found a provider in March and offered to pay for her services, but petitioners rejected that provider (Transcript pp. 69-71, 702). There is no other evidence in the record of any special education teacher services obtained by the parents during the school year. Concerning related services of speech, occupational, and physical therapy, petitioners claim that the student was receiving all three services during the school year (Transcript pp. 485-86), and admit that respondent paid all occupational therapy costs (Transcript p. 485). It is unclear from the record whether or not respondent also paid for all speech and physical therapy costs, but petitioners have submitted no evidence of any privately obtained physical therapy services and the only speech therapy bills in evidence are for the months of January 2003 through April 2003, that merely state dates and amounts due, with no explanation of the type of speech services rendered and no basis for determining whether or not such services were appropriate to the student's specific needs (Exhibit X).3 Under these circumstances, without evidence of the specific nature and cost of the services, or of who ultimately paid for the services allegedly obtained by the parents for the child, I am unable to make a determination on an award for reimbursement of any privately obtained services (Application of the Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal No. 99-65 [reimbursement for speech services is denied where the record contains no specific evidence of the services beyond a list of dates when the services were allegedly rendered]; Application of a Child with a Disability, Appeal No. 94-18 [the absence of sufficient information in the record about the child's evaluations and private services precludes any consideration of petitioners' claim for reimbursement for such examinations and services]; seeApplication of a Child with a Disability, Appeal No. 02-041 [reimbursement denied when there is no basis in the record to ascertain the appropriateness of the services]; Application of a Child with a Disability, Appeal No. 97-71 [where only an amount for services is given, absent further information about the services provided to the child, there is no basis for considering a parent's claim for reimbursement]).
As to the petitioners' request for compensatory education, such education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child with a Disability, Appeal No. 01-094), may be awarded if there has been a gross violation of the Individuals with Disabilities Education Act (IDEA) (Garro v State of Connecticut, 23 F3d 734 [2nd Cir. 1994]) resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v Wheaton, 916 F.2d 69 [2nd Cir. 1990]; Burr v Ambach, 863 F.2d 1071 [2nd Cir. 1988]; Application of a Child with a Disability, Appeal No. 01-094). Because petitioners' son was only 11 years of age at the time of the hearing and because the deprivation of instruction is of a limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 01-094). In such cases, State Review Officers have awarded equitable relief in the form of additional educational services to such students who remain eligible to attend school while having been denied appropriate services (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030; see Application of a Child with a Disability, Appeal No. 02-089, at n.2).
In the instant case, due to the sparseness of the record, I am unable to determine what services the child actually received or did not receive for certain portions of the 2002-03 school year, or whether or not the services he did receive met his needs. I therefore will order the CSE to reconvene within 30 days of the date of this decision to determine whether there was any period of time during the 2002-03 school year where respondent failed to offer the child the services as determined by the last agreement between the parties arrived at in the October 9, 2002 CSE meeting, and whether or not any such deficiency caused any harm, and if so, to include appropriate additional educational services in the student's 2003-04 IEP to address those deficiencies (Application of a Child with a Disability, Appeal No. 96-62; Application of a Child with a Disability, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 92-40).
To the extent that petitioners raise issues related to a possible program for their son for the 2003-04 school year, I note that at the time of the hearing, the IEP for the 2003-04 school year had yet to be developed, therefore such issues are premature. I remind both petitioners and respondent that respondent is required to develop an IEP for the 2003-04 school year that complies with both the procedural and substantive requirements of the IDEA, with the full participation and input of petitioners carefully considered, and, should respondent fail to do so, petitioners are free to challenge the 2003-04 IEP after it is developed (Application of a Child with a Disability, Appeal No. 03-084).
Concerning petitioners' claim for attorneys' fees and costs, petitioners are reminded that such relief is beyond the scope of the State Review Officer's authority (Application of a Child with a Disability, Appeal No. 01-011; Application of a Child with a Disability, Appeal No. 01-086), and can only be granted by a court of law (20 U.S.C. § 1415[i][B]).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s CSE shall reconvene within 30 days of the date of this decision to determine whether or not the student has suffered any deficiency in services for the 2002-03 school year which resulted in harm, and if so, to provide for additional services in the student's current 2003-04 program to correct for any such deficiency in accordance with the tenor of this decision.
1 In reviewing the record before me, I note that there appears to be a discrepancy with regard to Exhibit K, placed in the record by petitioners at the hearing. In the record furnished by respondent to this office, Exhibit K is a report prepared by the special education teacher employed by respondent from Options With Learning (OWL) dated February 28, 2002 (see also Transcript p. 45). However, a review of the transcript indicates that the document the parties were actually discussing at the hearing as Exhibit K was a series of reports by the special education teacher (Transcript p. 620) that included a report prepared in February 2003 (Transcript p. 645). There is no copy of the February 2003 report in the record before me. Due to the fact that both parties agreed that this special education teacher's services were being paid for by respondent (Transcript pp. 68, 611), I find that respondent's failure to include the February 26, 2003 report in the record does not prevent me from making a determination in this instance pursuant to Part 279 of the Regulations of the Commissioner of Education. However, respondent is reminded that it must ensure in the future that a complete and legible copy of the record is timely provided to the Office of State Review for all appeals (Application of a Child with a Disability, Appeal No. 93-12).
2 Petitioners submit bills from various providers for "consultations," some of which may or may not be for evaluations (Exhibit V), but all of these bills are for services rendered prior to the 2002-03 school year.
3 The exhibit containing the speech therapy bills (Exhibit X) also contains a cover letter from petitioners to the district dated April 17, 2003, wherein petitioners state that they paid for these services and are requesting reimbursement from the district, arguably according to the prior agreement of the parties arrived at in the October 9, 2002 CSE meeting (see Transcript pp. 47-48). The hearing concluded on May 7th and there is no evidence in the record to indicate whether or not the district did reimburse petitioners for these services.