03-094

          Petitioners appeal from part of an impartial hearing officer's decision rendered pursuant to § 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA) that, among other things, found certain claims to be outside the scope of the hearing officer's jurisdiction and moot. Petitioners appeal from that part of the hearing officer's decision that denied their request for compensatory education and for reimbursement for transportation costs for their daughter. Respondent cross-appeals from the hearing officer's decision that it reimburse petitioners for the cost of a program provided to petitioners' daughter by a fitness center. The appeal with respect to petitioners' IDEA claims must be dismissed. Petitioners' appeal relating to matters covered by the Rehabilitation Act must also be dismissed for lack of jurisdiction. The cross-appeal must be dismissed.

      Petitioners' daughter was 17 years old and had already graduated with a local diploma from respondent's Valley Central High School (Valley Central) at the time the hearing began in March 2003 (Transcript p. 9). She had previously been diagnosed with myelitis, resulting in weakness in her legs, back pain and a neurogenic bladder (Exhibits 2, 4, 6, 24). While attending Valley Central she had been identified by respondent as a student eligible for services pursuant to § 504. After falling ill at the end of November 2000 when she was in the tenth grade, the student received home instruction and tutoring until the end of the 2000-01 school year. Petitioners' daughter returned to respondent's high school in the 11th grade during the 2001-02 school year. Respondent developed a § 504 accommodation plan for her and did provide accommodations to her during that school year. Petitioners previously appealed to the State Review Officer (SRO) with respect to the 2000-01 and 2001-02 school years (See Application of the Bd. of Educ., Appeal No. 02-104). In Appeal No. 02-104, dated December 19, 2002, the SRO dismissed petitioners' appeal because the claims raised under § 504 were outside the scope of his jurisdiction, and because the remaining IDEA claims had not been timely raised at the underlying hearing.

        The student enrolled in the 12th grade at Valley Central for the 2002-03 school year. Thereafter, petitioners submitted documentation for review at a meeting of respondent's § 504 committee (See Exhibits 1, 6, 24; see also Exhibits 2, D-8, 4, 5, P-168). Respondent's § 504 committee met on September 25, 2002. As a result of this meeting, respondent determined that petitioners' daughter should continue to receive accommodations in accordance with § 504 and developed an accommodation plan for that school year (See Exhibits 8, 9, 12; Transcript pp. 19, 27). Respondent's § 504 plan included providing petitioners' daughter with a lumbar support cushion as specified by the student's physician, providing an additional set of books for her use at home, allowing the student to leave her classes three minutes earlier to allow for ease of transition to the next class, authorizing contract physical education, and allowing the student to bring water into the classroom to drink (Exhibit 12). Petitioners subsequently requested an impartial hearing with respect to respondent's responsibilities pursuant to § 504 as well as an impartial due process hearing with respect to the IDEA. The hearing below in the instant case commenced on March 30, 2003 and concluded on May 1, 2003. The IDEA and § 504 hearings were consolidated before the hearing officer (Transcript pp. 3, 8). Petitioners' daughter graduated from respondent's Valley Central at the end of the first semester of the 2002-03 school year.

        At the hearing, petitioners argued that respondent should have referred their daughter to its Committee on Special Education (CSE) for a determination regarding her eligibility for special education services in accordance with the IDEA. Petitioners also argued that respondent failed to provide accommodations and appropriate services including assistive technology and physical therapy to their daughter under § 504 and the IDEA, that it did not appropriately implement the § 504 services that it had offered to provide, and that it failed to provide their daughter with necessary transportation services. Petitioners also requested that respondent be required to provide their daughter with compensatory education in the form of tutoring to help her obtain the necessary credits for a New York State Regents diploma. Petitioners also requested reimbursement for transportation costs and for physical therapy, which petitioners had paid for and such therapy was provided to their daughter by a fitness center. Respondent argued that petitioners are not entitled to relief under either § 504 or the IDEA. Respondent also asserted that petitioners' daughter continued to receive the accommodations listed in her § 504 plan until she graduated. Respondent further argued that its CSE was not required under the IDEA to evaluate petitioners' daughter to determine whether she was a student with a disability because petitioners did not refer the student to its CSE for that purpose and because respondent believed that it had no basis to suspect that petitioners' daughter was a student with a disability in need of special education (See 8 NYCRR 200.4[a]; 20 U.S.C. § 1412 [a][3]; 34 C.F.R. § 300.125 [a][1][i]; Department of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Hawaii 2001] citing Corpus Christi Indep. Sch. Dist., 31 IDELR ¶ 41, at 158, No. 105-SE-1298 [Jan. 19, 1999]). At the parties' request, the hearing officer admitted the transcripts and exhibits of the hearing relating to the 2000-01 and 2001-02 school years into evidence. However, the parties agreed that the issues before the hearing officer in the instant case "solely relate" to the 2002-03 school year and that the prior material was admitted for "background" (Transcript 4).

        The hearing officer rendered his decision on September 9, 2003. Among other things, he found that during the 2002-03 school year, the § 504 accommodations that were put in place by respondent were "not exactly followed", that the services it provided were "most probably adequate" and that it provided an appropriate public education to petitioners' daughter. With respect to petitioners' request that their daughter receive compensatory education in order to obtain a Regents diploma, the hearing officer concluded that this was outside the scope of his jurisdiction. He also determined that respondent should reimburse petitioners for the cost of the program provided to their daughter at the fitness center because respondent did not provide the student with physical therapy and authorized physical education credit for the student's activity at the center. The hearing officer rejected petitioners' request for reimbursement for transportation costs. Finally, he determined that respondent should have referred petitioners' daughter to its CSE to determine if she was a student with a disability eligible for IDEA services. He also concluded that the student's graduation from high school rendered these issues moot.

        Petitioners appeal all portions of the hearing officer's decision that were adverse to their daughter, including those relating to respondent's obligations pursuant to § 504.¹ Respondent cross-appeals on the issue of whether it should be required to reimburse petitioners for the cost of the program provided to the student at the fitness center. Neither petitioners nor respondent appeal from the hearing officer's decision that respondent should have referred petitioners' daughter to its CSE.

        I have no jurisdiction to hear and consider petitioners' appeal with respect to its § 504 claims. A school district must provide an opportunity for a hearing to resolve disagreements arising under § 504 (34 C.F.R. § 104.36; Application of the Bd. of Educ., Appeal No. 02-104). However, the New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in § 504 hearings and an SRO does not review § 504 claims (Application of a Child with a Disability, Appeal No. 00-051; Application of a Child with a Disability, Appeal No. 00-010; Application of a Child with a Disability, Appeal No. 99-10). Petitioners' remedy is to seek review of the hearing officer's decision by the courts (Application of the Bd. of Educ., Appeal No. 02-104; Application of a Child Suspected of a Disability, Appeal No. 99-069; Application of a Child with a Disability, Appeal No. 99-10; Application of a Child with a Disability, Appeal No. 97-80; Application of a Child with a Disability, Appeal No. 96-37). Therefore, I will not consider petitioners' § 504 claims. Further, respondent's cross-appeal is also predicated on a determination of rights under § 504, and therefore I must also dismiss respondent's claim for want of jurisdiction.

        Petitioners asserted that respondent failed to provide their daughter with appropriate assistive technology and physical therapy services and therefore did not provide her with a free appropriate public education (FAPE) under the IDEA. 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]). A FAPE includes special education and related services provided in conformity with an individualized education program (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. Florida Union Free School Dist., 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).

        More specifically, petitioners claimed that respondent failed to provide their daughter with assistive technology services because respondent did not provide her with a classroom chair that allowed for the attachment of the student's physician- recommended lumbar support cushion. Petitioners also claimed that respondent did not provide their daughter with in-school physical therapy as recommended by her physician. I note here that petitioners' argument is based on the assumption that their daughter should have been referred to respondent's CSE, that the CSE would have determined her to be a student with a disability pursuant to the IDEA, and that these assistive technology and physical therapy services would have been included in the student's IEP.

        Based upon the alleged violations of the IDEA, petitioners request that their daughter be provided with compensatory education for the purpose of pursuing a Regents diploma. Compensatory education is an equitable remedy and may be awarded if there has been a gross violation of the 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 a Child with a Disability, Appeal No. 02-097; Application of the Bd. of Educ. of the Millbrook Cent. Sch. Dist., Appeal No. 02-033). As an equitable remedy, I note that 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. 02-097). In this case, the record does not show that there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services to petitioners' daughter for a substantial period of time. Petitioners' claim for compensatory education therefore must be dismissed.²

        I have considered petitioners' other claims, including their claim for transportation reimbursement, and find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.