04-016

          Petitioner, the Board of Education of the Gowanda Central School District, appeals from that part of a decision of an impartial hearing officer (IHO) which ordered the district to arrange for services that were not provided in accordance with the student's summer 2003 individualized education program (IEP), and to review the recommendations of the Committee on Special Education (CSE) and the student's IEP.  Respondent, the mother of the student, cross-appeals.  The appeal must be sustained in part and the cross-appeal must be dismissed.

          At the time of the hearing, respondent's son was 19 years old and attended a pendency placement at petitioner's Center Street School, pursuant to an agreement of the parties (Exhibits 26, 27, X; Transcript pp. 127, 161-63; see 20 U.S.C. § 1415[j], 34 C.F.R. § 300.514[a], Education Law § 4404[4][a]; 8 NYCRR 200.5[l][1]).  Respondent's son has medical diagnoses of pervasive development disorder not otherwise specified (PDD NOS), obsessive compulsive disorder (OCD) and oppositional defiant disorder (ODD) (Exhibit 18).  The student is classified as having autism and his classification is not in dispute. 

         On June 26, 2003, petitioner's CSE met for the student's annual review.  Only the summer program (summer IEP) was determined as a result of that meeting (Exhibits 7, 8).  The CSE recommended that the student receive services at Center Street School due in part to the student's refusal to attend Gowanda High School  because he was afraid to go into the high school building (Transcript p. 162; Exhibit 10), and also because he preferred to stay at home (Exhibit 10).  The CSE also recommended a regular education music theory class, adaptive physical education (APE), a job coach three times per week for two hours and counseling two times per week for 30 minutes (Exhibits 7, 8).  Each of these services was to be provided on an individual basis. 

         On August 29, 2003, the CSE met to develop the student's IEP for the 2003-04 school year (2003-04 IEP).  The CSE discussed placement in a 1:1 special education class at Center Street School five times per week for 400 minutes per day, with the related services of individual counseling two times per week for 30 minutes and individual APE three times per week for 40 minutes.  It also recommended that the student receive a speech-language therapy evaluation (Exhibit 14). The meeting was tabled without an actual recommendation due to respondent's desire to have her advocates present (Transcript p. 250). 

         A psychological re-evaluation was completed by the district's school psychologist on May 2, 2002 (Exhibit 18).  The report indicated that the student was under the care of a private physician due to significant mental health concerns.  His education and psychiatric history are set forth in Application of a Child with a Disability, Appeal No. 03-099 and will not be repeated here in detail.  It suffices to say that the student's behavior and emotional needs adversely effected his education. 

         In classroom settings, the student experienced difficulties with peer relationships, including pushing a desk into another student, arguing with a peer, annoying and disrupting students by singing or bothering them, and threatening other students for giggling. Teachers and support staff were particularly concerned about the student's difficulty with self-control and his quick escalation to a higher level of serious physical aggression (Exhibit 18).

         On the Achenbach Child Behavior Checklist, the parent and teachers were consistent in rating the student as having borderline clinical to clinical levels of aggressive behaviors and thought problems.  Teachers also noted that the student at times made statements that indicated that he may be delusional (Exhibit 18).  A history of somatic complaints, social problems, and anxious/depressed behaviors was also documented (id.).

        On February 5, 2003, while the student was attending a 12:1+1 Board of Cooperative Educational Services (BOCES) class housed within petitioner's Gowanda High School, the student was suspended for five school days for verbally and physically threatening members of the teaching staff.  The record references intervention by authorities, but provides little detail about the incident (Exhibit 10).  Following this suspension, the student received home instruction for the remainder of the 2002-03 school year.  While receiving home instruction, the student was provided with 11.5 hours of services per week.  Services included 90 minutes per day of tutoring for a total of seven and one-half hours per week in Earth Science, English 10 and Math (Exhibit 2).  A progress report dated June 25, 2003 revealed that the student passed his credit bearing academic courses, even though he was absent for a total of 38 excused absences and one unexcused absence (Exhibit 6).

        The hearing began on November 6, 2003.  Testimony was heard for a total of four days and the hearing concluded on January 8, 2004.  On the first day of the hearing, petitioner's attorney stated that the board of education conceded its recommended program was inappropriate (Transcript pp. 5, 7, 29-35, 41-42; see also IHO Exhibit 2), then requested that the IHO annul the summer IEP and the 2003-04 IEP (Tr. pp. 6, 10), and remand the matter to the CSE to develop an appropriate program (Transcript pp. 6, 7, 9, 11, 41-42).¹  After extensive discussion on the record (Transcript pp. 5-36), respondent's advocate indicated that the remaining issues before the IHO were "[c]ompensatory education, decision as to whether this was a denial of FAPE, annulment of the IEP, and corrective action" (Transcript p. 36).  The IHO then annulled the summer IEP and 2003-04 IEP, but stated "... but there are other items in terms of nature, extent of services and other reliefs [sic] requested in the IEP that are not addressed by either the District's concession and/or stipulated facts" (Transcript p. 36). 

        Despite both petitioner's concessions that it failed to comply with the procedural and substantive requirements of federal and state law, and his own "annulment" of the IEPs at issue, the IHO rendered a decision dated February 18, 2004 wherein he addressed 12 violations of federal and state law relative to the development of the annulled IEPs (IHO Decision pp. 6-7).  The IHO made 23 findings with respect to the 12 issues (IHO Decision pp. 22-23).  He determined that petitioner failed to demonstrate the appropriateness of its recommended program due to procedural and substantive violations.  He then found that the student was not denied a FAPE and that respondent was not entitled to compensatory education, nor was her son entitled to compensatory services in the form of an extension of services beyond age 21 (IHO Decision p. 23).  The IHO then set forth his order in 12 paragraphs.  In paragraphs one and two, he ordered the CSE to reconvene and create an appropriate IEP and complete a speech-language evaluation and a functional vocational assessment.  In paragraphs three through seven and paragraphs nine through ten, the hearing officer enumerated the procedural requirements of both the Individuals with Disabilities Education Act (IDEA) and the Regulations of the Commissioner of Education with respect to the duties of the CSE and ordered petitioner to follow them.  In paragraph eight, the IHO ordered petitioner to provide the services set forth in the student's summer IEP as "compensatory services" to respondent's son.  In paragraph 11, the hearing officer ordered petitioner to revise its CSE meeting notices to state:  "the parent can participate as a member and has the right to decline attendance by the parent member" (IHO Decision p. 24).  Lastly, the IHO ordered petitioner to "review the recommendations of the IEP CSE [sic], review the IEP of the student and arrange for services no later than 30 days from the date of the IEP CSE" (IHO Decision pp. 24-25). 

        In this appeal, petitioner contends that the IHO erred by ordering the Board of Education to review the student's IEP and to provide the services set forth in his summer IEP.  In her cross-appeal, respondent seeks a determination that her son was denied a free appropriate public education (FAPE).  Since neither party challenges the remainder of the hearing officer's decision, those portions of the decision are final and not subject to review (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]; Application of the Bd. of Educ., Appeal No. 03-001).

         The purpose of the IDEA is to ensure that children with disabilities are provided 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., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).  To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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 U.S. 176, 206-07 [1982]). 

         The student's 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 (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105).  As stated above, petitioner conceded that it failed to provide respondent's son an appropriate program via the June 26, 2003 and August 29, 2003 IEPs.  The hearing officer concurred with petitioner that the IEPs were inappropriate (IHO Decision p. 16).  A review of the record compels me to also conclude that the summer IEP and the 2003-04 IEP were not reasonably calculated to provide educational benefit.  Only one goal was identified to address the student's socialization skills.  The three objectives related to that goal were vaguely stated, and were not measurable because they did not provide specific behavioral expectations.  Given that the student was not offered a program that was reasonably calculated to provide educational benefit, I disagree with the hearing officer’s conclusion that the student was provided a FAPE.   I note that under the circumstances presented in this matter it was unnecessary for the hearing officer to consider whether petitioner complied with the procedural requirements of the IDEA.  As a general rule, once a district concedes that a recommended program does not provide a FAPE, the only issue left in controversy is whether the student is entitled to the requested relief. 

          Petitioner seeks reversal of the decision below to the extent that "it ordered the Board of Education to review the actual IEP to be developed during the upcoming CSE meeting, and the CSE to make-up services that were listed on the student IEP but not provided during the summer of 2003" (Pet. p. 9).

         I will first address petitioner's objection to the hearing officer's order that “the CSE shall arrange for services that were not provided during the summer of 2003 as compensatory services.” 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 the 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]; Application of Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-047).  Here there is conflicting evidence as to whether the district's actions excluded the student from services or whether services were offered and respondent chose to have her son not receive these services (Transcript pp. 171-72, 176-77). The hearing officer concluded, and I agree, that both parties impeded the delivery of services during the summer of 2003 (IHO decision p. 22).  Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction.

         Because respondent's son is now only 19 years of age and because the deprivation of instruction was of limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, I agree with the IHO that this is not a proper case for an award of compensatory education (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094).

          This is however, an appropriate case for the awarding of equitable relief in the form of additional educational services, especially so, given the fact that petitioner concedes its failure to provide the student an appropriate program and the record reveals that the student is susceptible to regression (Transcript pp. 202-04).  Although the hearing officer referred to the equitable relief that he ordered as "compensatory services," the hearing officer was not directing that the student's eligibility for special education be extended beyond the age of 21 due to a gross violation of the IDEA, nor did the hearing officer order the educational services to be provided after the student's IDEA eligibility expires.  The hearing officer here ordered that additional services be provided to make up for educational services not received during the student's summer program.  While federal courts within the Second Circuit have held that compensatory education is a remedy that is 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 the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). 

           In the instant case, the hearing officer awarded equitable relief in the form of additional educational services after finding that the student was improperly denied services to which he was entitled during the summer of 2003.  I find that the student did not receive appropriate services consistent with his summer IEP and that the awarding of additional educational services was appropriate.  However, I do not agree with the hearing officer that the additional services, under the current circumstances, must be provided exactly as set forth in the summer IEP.  Here, the record does not clearly indicate what additional services are needed to remedy the deprivation of services caused by the denial of a FAPE to this student during the summer of 2003.  Accordingly, I cannot determine from the record what additional services may be warranted in this case.  I further note, that given this student’s evolving needs, I am not convinced by this record that the recommendations set forth in the summer IEP would meet his current needs. Therefore, I direct the CSE, when it reconvenes, to consider what additional services are necessary to make up for educational services not provided during the summer of 2003.  Once it is determined what provision of additional services is appropriate, then those services should be provided.  Petitioner's appeal of that part of the IHO's decision which awarded "compensatory services" is dismissed, but sustained to the extent the IHO ordered petitioner to provide additional services exactly as set forth in the summer IEP.

          I will now address petitioner's remaining contention that the IHO erred in ordering the board of education to review both the CSE's recommendations and the student's IEP.  It is well settled under federal and state law that only a team or committee composed of specific individuals can develop and recommend an IEP (34 C.F.R. §§ 300.344–347, 300.552; 8 NYCRR 200.3, 200.4).  Section 4402 and its implementing regulations require school districts to appoint CSEs to make recommendations to the board of education regarding the education of students with disabilities (see Education Law §§ 4402[1][b][1], 4402[1][b][1][a], 4402[1][b][2], 4402[1][b][3]).  The board of education is required "to furnish suitable educational opportunities for children with handicapping conditions" (Education Law § 4402[2][a]).  Section 200.2 of the Regulations of the Commissioner of Education sets forth the responsibilities of the board of education (8 NYCRR 200.2).  

         Section 200.2(d)(1) states:

Approval of services for students with disabilities.  The board of education or board of trustees of each district shall, upon completion of its review of the IEP in accordance with section 200.4(e)(1) and (2) of this Part, arrange for the appropriate special education programs and services to be provided to a student with a disability as recommended by the committee on special education. The board shall notify the parent of its action in accordance with section 4402(2)(b)(2) of the Education Law

(8 NYCRR 200.2[d][1]) (emphasis added).

         Section 200.4 of the Regulations of the Commissioner of Education sets forth the procedures for referral, evaluation, IEP development, placement and review (8 NYCRR 200.4).  Section 200.4(e)(1) states in relevant part:  "[w]ithin 60 school days...the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in... private school, the board shall arrange for such programs and services within 30 school days" (8 NYCRR 200.4[e][1]).  Subsection (e)(2) sets forth the procedures the board of education must follow when it is in disagreement with the recommendations of the CSE.  The board of education may remand the recommendation to the CSE or establish a new CSE (8 NYCRR 200.4[e][2]).  The United States Department of Education has opined, "only a student's IEP team may determine the content of the student's IEP and only the group of individuals specified in 34 C.F.R. § 300.552 may determine the educational placement of a student with a disability based on that student's IEP" (Letter to Veazey, 37 IDELR 10 [OSEP 2001]).  In New York State, it is the CSE that initiates the evaluation of a student with, or suspected of having, a disability (see 8 NYCRR 200.4[b]), recommends an educational program (see 8 NYCRR 200.4[d]), and recommends a placement (see 200.4[d][4][ii]).  The board of education may state its objections or concerns to the CSE (8 NYCRR 200.4[e][2][i], 8 NYCRR 200.4[e][2][ii]).

         Petitioner contends that the IHO properly ordered the Board of Education to review the CSE's recommendations and arrange for the services listed in the IEP (Pet. ¶ 23).  I agree with petitioner that the IHO properly ordered the Board of Education to review the recommendations of the CSE, and to arrange for services in accordance with the Regulations of the Commissioner of Education (8 NYCRR 200.2[d][1], 200.4[e][1]-[e][2]).  Petitioner, however, contends that the IHO ordered the Board of Education to do more than this (see Pet. ¶ 24; IHO Decision pp. 24-25).  It appears that decretal paragraph 12 is inconsistent with a plain reading of sections 200.2(d)(1) and 200.4(e)(1)-(e)(2) of the Regulations of the Commissioner of Education (IHO Decision p. 24 ¶ 12; see also 8 NYCRR 200.2[d][1], 200.4[e][1]-[e][2]).  Therefore, petitioner's appeal of the hearing officer's order is sustained to that extent, and the hearing officer's order is annulled as to that portion which may be read to require the Board of Education to engage in activities beyond what is required by state law (see Education Law §§ 4402[1][b][1], 4402[1][b][1][a], 4402[1][b][2], 4402[1][b][3], 4402[2][a]; 8 NYCRR 200.2[d][1], 200.4(d)(5), 200.4[e][1], 200.4[e][2][i], 200.4[e][2][ii]). 

            In her cross-appeal respondent does not seek any compensatory relief, simply a determination that her son was denied a FAPE.  "[T]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]).  Only a party aggrieved by a hearing officer's decision may appeal to a State Review Officer (34 C.F.R. § 300.510[b][1]; 8 NYCRR 200.5[j]; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, 99-029).  Further, the State Review Officer is not required to determine issues which are no longer in controversy or to review matters which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). 

            When petitioner conceded that it failed to offer respondent's son a program reasonably calculated to enable him to receive educational benefits, then a fortiori, petitioner conceded that respondent's son was denied a FAPE (see Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  Although the hearing officer did not explicitly state that the student was denied a FAPE, he granted additional services as relief and ordered the CSE to create an appropriate program (Application of a Child with a Disability, Appeal No. 02-086).  I therefore find that respondent was not aggrieved by the hearing officer's decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the portion of the hearing officer's decision which ordered petitioner to provide additional services as set forth in the IEP dated June 26, 2003 is hereby annulled; and

IT IS FURTHER ORDERED that the CSE reconvene within 30 days to consider what additional services are necessary to make up for educational services not provided to the student during the summer of 2003.