04-014

            Petitioners appeal from the decision of an impartial hearing officer finding that respondent offered their son an appropriate program in the least restrictive environment (LRE) for the 2003-04 school year and denying their request for two years of compensatory education.  The appeal must be sustained in part.

            Before reaching the merits of petitioners' appeal, I must address several procedural issues. Respondent argues that petitioners' notice of intention to seek review was not served within the time period prescribed by 8 NYCRR 279.2; that the notice of intention to seek review was not personally served as required by 8 NYCRR 279.2 (a) and 8 NYCRR 275.8 (a); and that the petition was served fewer than ten days after service of the notice of intention to seek review. 

            The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer (Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 99-3).  The record before me suggests, but does not establish, that petitioners served their notice of intention to seek review by certified mail on March 4, 2004.  Petitioners personally served the notice on March 10, 2004.  Respondent transmitted the record in this matter on March 12, 2004, eight days after the alleged service by certified mail and only two days after petitioners effected personal service.  I find that petitioners' minimal delay in serving the notice of intention to seek review had no effect on this proceeding (Application of a Child with a Disability, Appeal No. 02-009).

            I find, further, that petitioners remedied their initial failure to serve the notice personally by effecting personal service several days later.  Appeals from hearing officers' decisions are generally not dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2).  I find that respondent was not prejudiced in this matter.  Therefore, I will not dismiss the appeal because of improper service.

            Finally, Respondent contends that the appeal should be dismissed because petitioners did not serve their notice of intention to seek review more than ten days before they served a copy of the petition for review, as required by 8 NYCRR 279.2 (b).  As indicated, however, the purpose of serving a notice of intention to seek review is to alert the board of education of its duty to file the record of the hearing promptly with the Office of State Review (Application of the Board of Educ., Appeal No. 92-10).  Here, respondent promptly filed the record of the hearing.  Therefore, petitioners' failure to serve the notice of intention in the prescribed manner does not afford a basis for dismissing this appeal (Application of a Child with a Disability, Appeal No. 00-094; Application of a Child with a Disability, Appeal No. 95-66; Application of a Child Suspected of Having a Disability, Appeal No. 93-45).

            Petitioners' son is 19 years old and classified as multiply disabled (Exhibit 9).  His classification is not in dispute.  On standardized IQ tests the student consistently falls below the first percentile; he also demonstrates deficits in adaptive behavior (Exhibit 5). The student can identify most letters and some letter sounds, but cannot decode words (Exhibit 6; Transcript p. 103).  He has an emerging sight word vocabulary consisting of words frequently found in the classroom and community (Transcript p. 118).  The student recognizes numerals but has not mastered one-to-one correspondence.  He can identify coins but not their value (Transcript p. 105).  The student uses telegraphic speech to communicate and at times perseverates (Exhibit 6; Transcript p. 108).  In a community setting the student is social but sometimes inappropriately touches people or yells their name to gain their attention (Exhibit 6; Transcript p. 109).  He is motivated and accepts correction (Transcript p. 116).

            When the student was a young child his pediatrician referred him for evaluation (Exhibit 5), and he was found eligible for services.  He received early intervention services through the Putnam/Northern Westchester BOCES (Transcript pp. 22, 253) and attended a BOCES preschool classroom.  Since 1989, when the student became eligible for school-age services, he has primarily attended the BOCES Pinesbridge School (Transcript p. 22).  He has never attended school within the Lakeland District.

            For the 2001-02 school year petitioners requested that the student’s placement be changed to a life skills program in the Bedford Central School District known as Opportunities for Positive Transitions (OPT). Petitioners believed their request would be honored (Transcript p. 256).  Due apparently to administrative misunderstandings, however, that placement did not occur and, instead, respondent placed the student in BOCES Community Outreach Program (COP), a program designed to teach life skills for students transitioning into the adult community (Exhibit 5; Transcript p. 23). 

            For the 2002-03 school year petitioners and respondent entered into a written agreement whereby the student would be placed in Bedford's OPT program if and when an opening there became available (Transcript p. 279). There were no openings, however, so petitioners' son remained in the BOCES COP program for the 2002-03 school year (Transcript pp. 280-82).

            A triennial evaluation of the student was conducted in the spring of 2003.  In a report dated March 18, 2003 BOCES staff described the student's abilities and needs (Exhibit 6; Transcript pp. 102-08).  The student was able to recognize high frequency sight words in the community and classroom, recognize most letters of the alphabet, and count and recognize numbers to 30.  He could write his first and last name from memory and was able to state his phone number, address and birthday.  He could tell time to the hour and half hour with minimal prompting.  The student demonstrated few word attack skills and did not exhibit an awareness of the value of money and had not mastered the concept of one-to-one correspondence (Exhibit 6).

            The student reportedly demonstrated good progress in the area of speech and language.  He was described as very social with good eye contact.  His receptive language was "very good" and when focused he could follow three-step directions.  He was able to follow functional directions related to his routine. The student's expressive language was described as telegraphic, consisting of single words or 2-3 word phrases.  Perseveration was noted.  The student could reportedly imitate appropriate adult models but this skill did not transfer to spontaneous conversations.  The student used verbal language to interact with peers and adults and would greet people appropriately (Exhibit 6). 

            In the social-emotional domain the student demonstrated progress in reducing perseverative conversations with peers and expanding his verbal repertoire.  Counseling sessions focused on assisting the student with appropriate worksite behavior.  According to BOCES staff, the student required firm limits and clear expectations of appropriate behavior.  At school the student was independent in all activities of daily living.  BOCES staff opined that due to the student's impulsive and sometimes inappropriate actions he required a highly structured program and small group instruction.  Staff reported that at times the student would inappropriately touch others or yell out their names (Transcript pp. 107, 109).  The report concluded that the BOCES COP program continued to be appropriate (Exhibit 6). 

            A psychological evaluation of the student using the Stanford-Binet Intelligent Scale-4th Edition was conducted on April 11, 2003 (Exhibit 5).  The student's verbal reasoning, abstract/visual reasoning, quantitative reasoning and short-term memory were all found to be below the first percentile.  Performance on some sub-tests was deemed unscorable.  The psychologist reported that the student's scores remained unchanged from previous testing (Exhibit 9).  In addition, the student's functional independence as measured by the Scales of Independent Behavior-Revised (SIB-R) was "very limited".  The student’s performance on measures of social interaction and communication, motor skills and personal living skills were also described as very limited, while his community living skills were reported to be "very limited to negligible."  The evaluator reported that the student's adaptive behavior was similar to that of a five year old.  The student demonstrated some compulsive behaviors, such as taking gloves from one of his work sites.  However, based on staff reports he did not exhibit significant behavioral difficulties.  The student had difficulty answering questions in the context of a conversation or structured test.  The psychologist concluded her report by stating the student was well served in his current (BOCES COP) program (Exhibit 5).

            A social history update was conducted as part of the triennial review (Exhibit 7).  According to the submitted report, the student's mother indicated that her son’s ability to express himself verbally had improved and that his behavior at home had become more manageable.  The student's mother inquired as to what programs would be available following graduation, and possible group home placement was discussed.

            Respondent's Committee on Special Education (CSE) met on May 13, 2003 to review the student's program for the 2003-04 school year (Exhibits 8, 9).  At that time, petitioners expressed concern about the limited opportunities their son had to interact with non-disabled peers at the BOCES COP program (Transcript pp. 55, 272).  They again requested that their son be placed in the Bedford OPT program, which is housed in a public school building.  Respondent, too, maintains a life skills program much like Bedford's OPT program (the "Lakeland program"), also housed in a public school building (Transcript pp .221-22).  Petitioners indicated they were not interested in the Lakeland program (Transcript pp. 49, 80, 272).  Consequently, the CSE did not recommend Lakeland as a possible placement for the student (Exhibit 9; Transcript pp. 81, 276).

            Respondent agreed to refer petitioners' son to Bedford as a candidate for placement in the OPT program and witnesses agreed that the referral took place (Exhibit 12; Transcript pp. 49, 58, 73, 196, 212, 313).  Again, however, Bedford had no openings and could not accommodate petitioners' son.  The CSE thus developed an individualized education program (IEP) for the 2003-04 school year reflecting a continuation of the student’s program: placement in the BOCES 12:1:4 COP class at Pinesbridge with related services of individual speech and language therapy three times per week, individual counseling one time per week and group counseling one time per week (Exhibit 9).

            On September 16 and 22, 2003 petitioners requested an impartial hearing, contesting their son's placement in the BOCES COP class and challenging respondent's alleged failure to consider alternative, less restrictive placements (Exhibits 1, 2).  The hearing took place on October 23, November 20, November 25 and December 9, 2003.  In his opening statement petitioners' counsel indicated that in addition to a change of placement petitioners were seeking an award of compensatory education (Transcript p. 32).  Respondent's counsel objected to having this issue raised for the first time at the hearing (Transcript p. 33).  On February 2, 2004 the hearing officer issued her decision, upholding the IEP and its recommendations for the 2003-04 school year, denying the request for compensatory education and ordering the CSE to convene within 30 days to update its transition planning for petitioners' son.

            Petitioners contend that respondent has acted in violation of the LRE requirements mandated by Federal law and the Regulations of the Commissioner of Education (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  Specifically, petitioners argue that their son's placement in the BOCES COP program provided insufficient opportunity for the student to interact with non-disabled peers.  The hearing officer found the BOCES COP program to be appropriate. 

            A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.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. 03-088; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  The board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]).  The Second Circuit has found that "for an IEP to be 'reasonably calculated to enable the child to receive educational benefits,' Rowley, 458 U.S. at 206-7, 102 S.Ct. 3034, it must be 'likely to produce progress, not regression,' Walczak, 142 F.3d at 130 (M.S., 231 F.3d at 103).  The child's progress must be viewed in light of the limitations of the child's disability (Rowley, 458 U.S. at 202; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 [2d Cir. 1997]), and the educational benefit must be "meaningful" (Rowley, 458 U.S. at 192). 

            An appropriate program begins with an IEP that 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).  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]).

            The Individuals with Disabilities Education Act (20 U.S.C. § 1400-1451 [1997]; referred to hereinafter as "IDEA") mandates that all students with disabilities be educated with non-disabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1993]; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).  "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).

            The Supreme Court has not yet established a standard for evaluating whether a school district has complied with IDEA's LRE requirement.  However, several federal district courts in the Second Circuit have adopted the two-part test set forth in both Daniel R.R. v. El Paso Indp. Sch. Dist. (874 F.2d at 1048) and Oberti v. Bd. of Educ. (995 F.2d at 1215) (see Warton, 217 F.Supp.2d at 273-274; A.S., 183 F.Supp.2d at 540-541; Mavis, 839 F.Supp. at 982-983).  State Review Officers have also followed Daniel R.R./Oberti and their progeny (see Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, 00-093; Application of a Child with a Disability, Appeal No 98-24; Application of a Child with a Disability, Appeal No. 98-12; Application of a Child with a Disability, 95-15; Application of a Child with a Disability, Appeal No. 94-27; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21).

            The Daniel R.R./Oberti analysis requires a determination, first, "whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily" (Daniel R.R., 874 F.2d at 1048).  In this matter no party contends that education in a regular classroom is an appropriate option for petitioners' son.

            If, as I find here, placement outside a regular education setting is appropriate, the second prong of the Daniel R.R./Oberti test must be considered, i.e., "whether the school has made efforts to include the child in school programs with nondisabled children whenever possible" (Oberti, 995 F.2d at 1215). "If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]." (Daniel R.R., 874 F.2d at 1050).

            Petitioners assert that their son would have more opportunities to interact with non-disabled peers if he attended a program housed in a public school rather than one located on the segregated BOCES campus.  As indicated, both Lakeland and Bedford maintained self-contained life skills programs in public school buildings (Transcript pp. 285, 307).  Witnesses indicated there would be opportunities for incidental interaction with non-disabled students at Lakeland (Transcript p. 47) and that students were integrated for lunch and physical education based on individual needs (Transcript pp. 47, 224).  At Bedford's OPT program, students attended special events with their grade level peers and sometimes ate lunch in the cafeteria.  There was reportedly an inclusion program involving ninth graders (Transcript p. 285).  Mainstreaming based on individual need was a possibility (Transcript p. 224).

            At BOCES some regular education vocational classes are housed in the same building as the student's COP class (Transcript p. 67).  Although the CSE chair indicated that interaction among BOCES special education and regular education students was possible, it is not clear whether such interaction actually took place.

            I find that the possibility of increased interaction with non-disabled peers is greater in either of the two programs housed in public schools than it is at BOCES.  I also find, however, that such interaction is far from guaranteed and that, when it does occur, its educational significance is questionable.  As to Bedford, the hearing officer found, and I agree, that such interaction would be "ephemeral" at best, and I find that the record does not show that it would provide educational benefit to this student.  Appropriately, the CSE weighed this uncertain benefit to the student with the potentially serious disruption likely to ensue from his transfer, at age 19, to a new setting.  The Bedford program, moreover, is only a ten-month program and this student requires extended year programming, which he receives at BOCES.

            I have considered petitioners' additional arguments regarding the alleged superiority of Bedford’s OPT program and find them legally insufficient to compel a determination that Bedford is the only appropriate placement for the student.  Although Bedford offers certain services that BOCES does not, the recommended placement was clearly calculated to enable this student to receive educational benefit and to produce progress.  Given the student's progress and achievements at BOCES, and his needs, I agree with the hearing officer's conclusion that the BOCES program was appropriate and that as between Bedford and BOCES, respondent satisfied its burden of demonstrating the appropriateness of placement in the BOCES COP program (Application of Bd. of Educ., Appeal No. 00-080).

            The Lakeland issue is more troubling.  The record indicates that respondent failed seriously to consider and did not recommend the Lakeland program simply because petitioners "were not interested" in that program (Transcript pp. 49, 80).  Assuming, without deciding, that the Lakeland program would appropriately meet the student's needs in an environment less restrictive than BOCES, Lakeland -- as the student's home district -- would be the preferred, least restrictive program (34 CFR §300.552 [b] [3], [c]).  The CSE has an obligation to recommend an appropriate program in the LRE, and it was not free to ignore a program that might reasonably have been the least restrictive option for this student.

            On the record before me it is impossible to determine whether Lakeland is an appropriate placement for petitioners' son and, if so, whether it constitutes the least restrictive placement.  There is ample evidence in the record to support a finding that the BOCES COP program is appropriate for the student.  However, respondent erred by failing to consider the Lakeland program as thoroughly as it considered the Bedford program.  Accordingly, I will remand this matter to the CSE for such consideration and a determination on which program -- Lakeland or BOCES -- provides the student with an appropriate program in the LRE.

            I now address the issue of transition planning.  Among the purposes of 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.; Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 02-111).

            For students 14 years of age and older, the IEP must include a statement of the student's transition service needs (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.

        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 postsecondary 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; of

(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 record indicates that the student's IEP relies on a Student Transition Action Plan from March 2000.  Notwithstanding that the Regulations of the Commissioner require annual updates to transition services statements (8 NYCRR 200.4[d][2][viii]), this student's age and significant deficits should have given the CSE a heightened sense of the need to develop an updated, more detailed transition plan.  Appropriately, the hearing officer ordered respondent's CSE to convene within 30 days to update its transition planning for the student.  I affirm that order, and further direct the CSE to determine whether additional evaluations such as speech/language testing or vocational skills and needs assessments are necessary to complete such planning appropriately.  The student's IEPs must include goals, services and activities to incrementally prepare the student for achieving projected post-school outcomes.

            The hearing officer properly denied petitioners' request for compensatory education.  Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded if there has been a gross violation of IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).  While federal courts within the Second Circuit have held that compensatory education is a remedy available to students who are no longer eligible for instruction, I note that State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  In general, the award of additional educational services for a student who is still eligible for instruction requires a finding that the student has been denied a free appropriate public education (FAPE) (Application of a Child with a Disability, Appeal No. 02-086).

            In this matter there have been no gross violations of IDEA and the record does not show that the student had been denied appropriate services to the extent that additional services are necessary.  Accordingly, petitioners' request for any award of compensatory education or additional services is denied.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that that this matter is remanded to respondent's CSE in order for it to determine which program -- Lakeland or BOCES -- provides the student with an appropriate program in the LRE; to update the student's transition planning and to determine whether additional evaluations such as speech/language testing or vocational skills and needs assessments are necessary to complete such planning appropriately, unless any of the foregoing have been completed in accordance with the tenor of this decision since the date of the IHO decision; and

IT IS FURTHER ORDERED unless the parties otherwise agree, that respondent's CSE is to comply with the above directions within 30 days of the date of this decision.