04-035

            Petitioner appeals from the decision of an impartial hearing officer which determined that respondent offered to provide petitioner's son a free appropriate public education (FAPE).  The appeal must be dismissed. 

            I will first address a procedural matter.  I have considered respondent’s procedural objections asserting that the petition and reply in this appeal were not filed in conformity with Part 279 of the Regulations of the Commissioner.  I will exercise my discretion under 8 NYCRR 279.8(a) and accept the pleadings and decide the appeal on the merits.

            Petitioner's son was 20 years old when the impartial hearing began on October 30, 2002 and had completed 20 credits towards a high school diploma (Exhibit 35).  The hearing ended on February 23, 2004 after 25 days of testimony.  During the course of the hearing, petitioner's son was living at home with his parents and did not attend school. 

             The student's classification as other health impaired (OHI) is not in dispute.  Petitioner's son was first classified as OHI in the third grade during the 1990-91 school year.¹  He has had a number of medical and psychiatric diagnoses, including an attention deficit hyperactivity disorder (ADHD), a seizure disorder, and oppositional defiant disorder (ODD) (Exhibit 36).  A psychiatric evaluation conducted in May 2001 offered additional diagnoses of adjustment disorder with anxious features and depressive disorder not otherwise specified (Exhibit 36).  A second evaluation by the same psychiatrist in July 2002, after the student had not attended school for approximately one year, offered additional diagnoses of major depression and dysthymia (Exhibit 86).

            Administration of the Wechsler Adult Intelligence Scale–III (WAIS-III) during a psychological evaluation conducted in November 2001 indicated overall cognitive functioning in the average range (full scale IQ score 108, 70th percentile), with a significant discrepancy between the student's verbal IQ score (125, 95th percentile) and his performance IQ score (87, 19th percentile) (Exhibit 38).  A private psychologist who evaluated the student in November 2001 suggested this discrepancy was more consistent with psychiatric disorders than with learning disorders, or with an underlying organic weakness, possibly related to the student's identified seizure disorder (Exhibit 39).  An educational evaluation of the student conducted on July 24, 2001 yielded scores in the average range for all subtests of the Woodcock McGrew Werder Mini Battery of Achievement (Exhibit 37).  The student's disability primarily affects his social and emotional functioning in an educational setting, causing him to have difficulty interacting appropriately with peers and adults (Exhibit 1).

           During the 1993-94 school year, when the student was in sixth grade, he received resource room services and was assigned an aide who escorted him to his classes (Exhibit 65, p. 3).²  In May 1994, the Committee on Special Education (CSE) recommended general education placement in the seventh grade for the 1994-95 school year with resource room services ten periods per week and continuation of a 1:1 aide to accompany the student to class (Exhibit 65, p. 3). 

            During the 1994-95 school year (seventh grade), the student was removed from school and placed on home instruction first by court order and subsequently by agreement of the parties (Exhibit 65, pp. 3-4; Transcript pp. 1097-98).  Arrangements were made for the student to receive individual instruction at respondent's junior high school, where he was accompanied by an aide (Exhibit 65, p. 4; Transcript pp. 1098-99).  While in this placement, the student reportedly refused to do any classwork or take exams (Exhibit 65, p. 4).

            For the 1995-96 school year (eighth grade), the CSE developed a program in which the student remained in a 1:1 instructional setting with an aide, but was to be mainstreamed gradually into the general eighth grade curriculum and receive occupational therapy and psychological support (Exhibit 65, p. 4).  The student reportedly refused to attend mainstream classes, refused to do any school work, and screamed at his teacher (Exhibit 65, p. 4).  His interactions with adults and peers were described as immature and inappropriate (Exhibit 65, p. 4).

            For the 1996-97 school year, which was to be the student's first year in respondent’s high school, the CSE recommended a program consisting of alternative English and social studies, adaptive physical education and mainstream art, lunch and math (Exhibit 65, p. 5; Transcript pp. 1104-05, 1108).  The parents rejected the proposed program because they did not agree with the CSE recommendation that an aide accompany the student to mainstream classes (Exhibit 65, p. 5).  Respondent further asserted that petitioner's behavior, which included interference and outbursts directed at staff, had a negative influence on the student (Exhibit 65, p. 6).

            When the CSE convened on June 13, 1997 for the student's annual review, it was noted that the student had not been attending class (Exhibit B).  He received no course credit for the 1996-97 school year (Exhibit 35; Transcript p. 1206).  At the parent's request, the CSE recommended application to out-of-district programs for the 1997-98 school year, and the student was accepted at a program identified in the record as Sewanhaka (Exhibits B, E).  At Sewanhaka, the student was to attend a transitional program that provided individual and group counseling, crisis counseling, psychiatric supervision and monthly evening parent counseling (Exhibit E).  Acceptance was for a 30-day trial period, and Sewanhaka requested that the student begin psychotherapy in the community as an adjunct to his school counseling (Exhibit E).  The student's placement at Sewanhaka was unsuccessful, as he did not attend class on a regular basis, did not participate when he did attend, displayed provocative behavior, and was not participating in counseling either in school or outside (Exhibit G).  He was terminated from the Sewanhaka program on October 20, 1997 (Exhibit F) and returned to respondent's district to repeat the ninth grade, where attempts were made to place the student in mainstream classes (Transcript p. 1104).  

           A psychiatric evaluation conducted in November 1997 reported symptoms of ADHD, anxiety, labile affect, poor insight and judgment, poor impulse control and disheveled appearance (Exhibit 39).  An episode at the school in February 1998 resulted in the student's transport by ambulance to a medical center because of his extreme agitation (Exhibit K; Transcript p. 2495).  Despite these incidents, the student earned three and one-half credits toward graduation during the 1997-98 school year (Exhibit 35; Transcript p. 989).

           The student earned another four credits toward graduation during the 1998-99 school year (tenth grade) (Exhibit 35; Transcript p. 988).  During that year, the student was suspended in December 1998 for threatening behavior.  He again reportedly engaged in threatening behavior in April 1999 (Exhibit 98).  In June 1999, the school psychologist who provided educational counseling to the student reported to respondent's child study team that the student engaged in frequent altercations with other students and regularly failed to attend classes (Exhibits 101, L).  The school psychologist further reported that he had spoken with petitioner and had "frequently" recommended psychiatric/psychological intervention, but petitioner had expressed concern that such professionals were ill-equipped to work with adolescents who have ADHD and ODD (Exhibits 101, L).  Petitioner also turned aside suggestions to remove the student from his mainstream classes for a more therapeutic setting (Exhibits 101, L; Transcript pp. 2423-24).  When the CSE convened on June 10, 1999, it recommended summer school for social studies and English and that a psychological evaluation be conducted over the summer (Exhibit M).

            During the 1999-2000 school year (11th grade), the student received passing grades in all subjects, earned six and one half credits towards graduation and passed Regents examinations (Exhibits 35, H; Transcript p. 1206).  Staff at the high school testified that the student's social and emotional status improved (Transcript pp. 990, 1446, 1739-40, 1758-59, 3049).  The student's management needs were reported to be less severe in the 11th grade (Transcript p. 1207).  During the student's 11th grade year, he received resource room services as well as educational counseling by a school psychologist (Exhibit 1; Transcript p. 3792).

            The CSE convened on March 31, 2000 for the student's annual review to develop an individualized education program (IEP) for the 2000-01 school year, which was the student's 12th grade year (Exhibit 1).  It recommended continuation of resource room and educational counseling services as well as adaptive physical education  (Exhibit 1).  The CSE reconvened at the mother's request on July 20, 2000 (Exhibit 3) and again on September 14, 2000 (Exhibit 4) to review and modify the IEP (Exhibits 3, 4, 5). 

            Prior to the beginning of the 12th grade, petitioner requested that her son's IEP be changed to reflect receipt of a Regents diploma instead of a local diploma (Transcript pp. 987, 1203).  The CSE complied with this request, despite the concern of several CSE members that this change would require a more intensive and challenging academic course load, would limit the student's access to his resource room teacher and would place too much academic and emotional stress on the student (Transcript pp. 1025, 1204, 1448-49, 1661-62, 1744-45, 1758-59, 1761).

            In February 2001, the school psychologist who provided educational counseling services to the student reported deterioration in the student's academic functioning and recommended adjustment in the student's academic load (Exhibit 91).  In his report, the school psychologist also described an incident in which the student had provoked another student by throwing things at him and the other student retaliated by spitting at the student (Exhibit 91).  On February 27, 2001, the student was suspended for insubordination, which involved refusing to go to class and an altercation with another student (Exhibits 92, 93, 94, 95, 96, 97, 98, 102).  Arrangements were made for a security guard to accompany the student to his English class when he returned to school after his suspension and subsequent absences (Exhibit W). The student reportedly had been refusing to attend because of disagreements with another student in that class.

            The CSE convened on April 5, 2001 and recommended a psychiatric evaluation, which petitioner had requested.  The CSE also agreed to petitioner's request to provide tutoring in English, science and math and to provide classroom notes and homework assignments to address the student's refusal to attend certain classes (Transcript p. 78).  Petitioner attributed her son's absences and behavioral changes "at least in part…to difficulties with peers and academic schedule" (Exhibits 6, 8).  The CSE also recommended a functional behavioral analysis (FBA) (Exhibit 8).

            On May 5, 2001, an independent psychiatrist evaluated the student.  The psychiatrist offered a diagnosis of adjustment disorder with anxious features, ADHD, ODD, and depressive disorder not otherwise specified, and indicated that the student's recent deterioration in functioning was due to stress in school and at home.  He recommended placement in a "small structured setting with a strong therapeutic component" as well as family therapy (Exhibit 36).

            On May 8, 2001, the school psychologist who provided educational counseling to the student reported a dramatic increase in the frequency of the student's visits to the school psychologist's office.  The school psychologist noted that the student was frequently agitated and appeared preoccupied with classmates whom the student alleged were teasing him (Exhibit O).  On May 23, 2001, the school psychologist reported that the student was visiting his office on a daily basis, sometimes several times per day, and that he appeared particularly agitated when describing alleged altercations with other students.  The school psychologist strongly recommended an alternative educational setting, noting the student's potential for "regressive, violent, acting-out behavior" (Exhibit P). 

            The CSE convened on June 18, 2001 for a program review, at which petitioner requested an out-of-district placement leading to a Regents diploma (Exhibit 11).  At this point, the student was receiving passing grades in all subjects except math and physics, and his report card subsequently reflected earning six credits, for a total of 20 credits towards graduation (Exhibit 35).  At the end of the 2000-01 school year, the student required only two courses, math and physics, to earn a Regents diploma or one course in math to earn a local diploma (Transcript p. 76).  After April 2001, the student did not return to class (Exhibits 11, P; Transcript pp. 1166, 3862).

            Pursuant to recommendations made at the June 18, 2001 meeting, the CSE sent applications to various out of district programs, day treatment facilities and private schools (Exhibit 17).  All applications were rejected (Transcript p. 80) with the exception of the alternative learning program at the Nassau County BOCES (ALP), but that placement did not offer a program leading to a Regents diploma.  Respondent offered to provide the physics instruction required for a Regents diploma to supplement the ALP, but petitioner declined this offer (Exhibits 20, 21, 23, 25, Q; Transcript pp. 298-99).  Respondent also offered home instruction and educational counseling to the student pending identification of a placement, but petitioner also declined this offer (Exhibits 19, 20; Transcript pp. 304, 316).  The student did not attend school during the 2001-02 school year.

            At a CSE meeting held on April 25, 2002, petitioner requested placement of her son at the Sappo School (Sappo), a private school in Patchogue, New York that offered a 12-month program and a Regents diploma (Exhibits 34, 41, 42, 43).  The CSE recommended a 12-month placement at Sappo with educational counseling services once per week on an individual basis and once per week in a small group (Exhibits 41, 42, 47).  Petitioner's application to Sappo for her son had been accepted on March 19, 2002 (Exhibits 34, 31). 

            In March 2002, the student was evaluated by an independent psychologist, who diagnosed major depression that was severe and recurrent, with atypical features, and recommended "intensive clinical intervention"  (Exhibit 39).  The CSE convened on June 24, 2002 with the independent psychologist present by telephone.  The independent psychologist expressed concerns regarding the student's depression and recommended "therapy outside of school" prior to his return to school to assist the student with his transition back into an education setting.  The CSE recommended another psychiatric evaluation by the psychiatrist who had evaluated the student in May 2001 in order to obtain updated information about the student's functioning (Exhibit 58).   

            The school psychologist met with the student on June 25, 2002 to assess his readiness to attend Sappo (Exhibits 60, R), and reported that the student had expressed interest in attending Sappo.  However, the school psychologist suggested that the student may not be capable of attending the school without "psychotherapeutic intervention," which he recommended be provided at the initial rate of two sessions per week to stabilize the student's symptoms.  The school psychologist opined that educational counseling services, which were recommended twice per week by the CSE, would be insufficient to address the student's "chronic and pervasive psychological difficulties" (Exhibits 60, R).

            During the summer of 2002, respondent communicated with petitioner in an attempt to reconvene the CSE to finalize the IEP and to reach an agreement that would allow the student to begin attending Sappo (Exhibits 61, 63, 66, 67, 68, 69, 70, 71, 72,74, 75, 76, 77, 78, 79).  On July 17, 2002, the student was reevaluated by the psychiatrist who had evaluated him in May 2001 (Exhibit 86).  This evaluation resulted in diagnoses of major depression, recurrent, as well as dysthymia, ADHD and ODD, and also noted problems with peer relations and academic and family functioning (Exhibit 86).  The psychiatrist again recommended a small supportive academic setting and also recommended therapy outside of the school setting (Exhibit 86).

            The CSE convened on September 13, 2002 (Exhibit 82) and increased its recommendation of educational counseling services from twice per week to five times per week (Exhibit 82).  Meeting minutes note that the CSE suggested that the school psychologist who had provided educational counseling to the student could assist the student's transition by visiting him at Sappo two or three times (Exhibit 82). 

            Petitioner agreed that the IEP developed for the student on June 24, 2002 was appropriate but requested that, in addition to the related service of educational counseling, the student be provided individual psychotherapy outside of the school setting at district expense (Exhibit 82).  Petitioner indicated that her son required this therapy as a transitional service  (Exhibit 82).  The CSE offered to consider day treatment or residential placement to provide the student with the level of therapeutic services that the petitioner requested, but petitioner declined and requested an impartial hearing (Exhibits 82, 83). 

            By letters dated September 13, 2002 and September 24, 2002, petitioner requested an impartial hearing seeking a determination that respondent failed to formulate a valid IEP and failed to provide appropriate related services for her son (Exhibits 83, 89).³  The hearing began on October 30, 2002 and concluded on February 23, 2004, encompassing 25 days of testimony.  The hearing officer rendered his decision on April 30, 2004 and determined that respondent developed an appropriate and “valid” IEP, provided appropriate related services and provided a FAPE to petitioner’s son. 

            On appeal, petitioner claims that the impartial hearing officer erred in finding that the student was provided a FAPE and requests that the student receive psychotherapy by a provider of the student's choice, compensatory education for the loss of FAPE and reimbursement for all legal fees and costs incurred. 

            The purpose of the Individuals with Disabilities Education Act (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).  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 (LRE) (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). 

            In high school, the student progressed from refusal to do work (Exhibit 65, p. 6) and earning no credits in his first year of ninth grade (Transcript p. 1206) to passing courses, earning credits towards graduation, passing Regents exams and scoring within the average range on standardized tests of academic achievement (Exhibits 35, 37; Transcript pp. 162, 987-89, 1206).  The student's identified areas of need related to his disability were primarily in the social and emotional domain.  He had a long history of difficulties with adult and peer interactions.  His academic performance was affected by poor organizational skills and by his refusal to attend classes.  During the student's tenure in respondent’s district, the CSE addressed the student's social and emotional needs through academic and counseling support (Application of a Child with a Disability, Appeal No. 93-29; Exhibit 1; Transcript pp. 1495, 1736-37, 2478-79).  In high school, the student received resource room services to address organizational deficits related to his ADHD (Transcript pp. 1736-37).  He also received social skills training in resource room to address his difficulties interacting with peers and adults and his provocative behavior (Transcript pp. 1591, 1593-94, 1656, 1740).  In addition to resource room services, the student received emotional support in the form of educational counseling (Exhibit 1; Transcript pp. 1495, 2478-79).  Respondent employed educational counseling to address the student's adjustment to the school setting and performance in school (Transcript pp. 1388, 1450, 2479).  Educational counseling was used to address social/emotional needs and to assist the student in achieving educational goals and objectives (Transcript pp. 1118-19, 3792).

            During periods when the student's emotional status significantly interfered with his academic performance, the CSE attempted to provide more intensive levels of service through out-of-district placement in programs such as day treatment and residential facilities.  However, petitioner rejected most of the CSE's recommendations (Transcript pp. 267, 298-99, 305, 1012-13, 1538, 2566, 2915, 2918-19, 3398, 3862). 

            Prior to the 2000-01 school year (12th grade), both petitioner and school staff noted improvement in the student's social interactions and academic progress (Transcript pp. 162, 989-90, 1207, 1444-45, 1736-40, 1758-59, 3049, 3854).  When petitioner requested that the student's IEP for the 12th grade reflect receipt of a Regents diploma, school staff expressed concern that the student would be unable to complete the more demanding course load of a Regents diploma because his daily sessions with his resource room teacher would be reduced (Transcript pp. 1025, 1204, 1448-49, 1661-62, 1744-45, 1758-59, 1761).  Nevertheless, respondent acquiesced to petitioner's wishes. 

            When the student's behavior began to deteriorate in the 12th grade, the CSE again attempted to identify an appropriate therapeutic environment (Transcript pp. 258, 266, 298-99, 1012, 1014-15, 1171, 1533).  Petitioner rejected all options suggested and insisted that the student remain in a general education setting which would allow him to earn a Regents diploma (Transcript pp. 259-60, 298-99, 1012, 1014-15, 1171, 2423-24, 3813).    The student did not finish the 12th grade, and required one math course to receive a local diploma and two courses – math and physics – to receive a Regents diploma (Transcript pp. 77, 397).

            When the CSE convened in June 2002 to revise and develop the student's 2001-02 IEP, it offered petitioner a number of options for the student to receive his diploma.  Petitioner rejected these options and the student continued to not attend school (Transcript pp. 266-68, 292, 298-99, 305, 309, 316-18, 378-80, 1012, 1208).  When petitioner requested placement of the student at Sappo in April 2002, respondent investigated the appropriateness of the Sappo program (Transcript pp. 1148, 1210-11) and recommended that the student be placed there with the support of the educational counseling services that the student had received at respondent's school (Transcript pp. 1119-20).  At the recommendation of school staff, respondent increased the frequency of the educational counseling services offered to the student (Exhibits 82; Transcript pp. 1465, 1537). 

            While petitioner agreed to the student's placement at Sappo, she did not agree with the provision of educational counseling, instead requesting that respondent provide outside psychotherapy (Exhibit 82).  When respondent refused this request, petitioner did not send the student to Sappo.  The student remained at home, where his emotional status reportedly deteriorated (Exhibit AA; Transcript pp. 3922-23), ultimately resulting in a diagnosis of severe depression (Exhibits 39, 86).  During the 15 months of the impartial hearing, the CSE continued its efforts to encourage the student to resume his education, which were refused by petitioner (Transcript pp. 316-18, 378-80, 1117, 3863). 

            Upon a review of the record, I find that the IEP developed at the June 2002 CSE meeting appropriately addressed the student's educational needs.  The student's identified areas of need related to his disability were primarily in the social and emotional domain.  He has a long history of difficulties with adult and peer interactions.  His academic performance was affected by poor organizational skills.  The IEP developed by the CSE contains two goals to address the student's difficulty with organization and completion of assignments and four goals to address his social-emotional needs related to relationships with peers and adults. 

             When petitioner requested placement of her son at Sappo, the district's director of pupil services contacted the Sappo director, who indicated that the school had successfully provided services to students with comparable needs.  Sappo offered small structured classes with daily counseling and support, and could offer the student a Regents' diploma as requested by petitioner (Transcript p. 1211).  The student had succeeded academically in the district's high school through the provision of the educational support provided by the related services of a small, structured resource room and educational counseling (Transcript pp. 1026, 2587).  The school psychologist who provided educational counseling to the student testified that the counseling he provided to the student focused upon "helping the student to function more appropriately within an educational environment" (Transcript p. 2478) and indicated that, while in the district's high school, the student achieved some of his counseling goals (Transcript p. 2587).  The school psychologist opined that the student could make progress at Sappo if he had the opportunity to develop a relationship with an educational counselor while he attended the Sappo program (Transcript pp. 3145-46). 

              I note that petitioner agreed that this IEP was appropriate and in fact, had recommended the Sappo program to respondent (Transcript pp. 1460, 1589).  Her disagreement was with the provision of related services offered by respondent, asserting that educational counseling would not be sufficient support for her son, and that he also required psychotherapy in order to return to a school environment (Transcript p. 3829).  As to the educational counseling, I find that these services were reasonably calculated to allow the student to progress at Sappo and, in conjunction with the Sappo program, would have adequately addressed the goals and objectives developed for the student by the CSE.  Accordingly, I find that respondent offered petitioner's son a FAPE.

            Petitioner requests that I order respondent to provide compensatory education to her son for the loss of FAPE by placing him in the Landmark College, a special education prep school in Vermont (Petition, p. 5).  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]). 

            While the student is no longer eligible for educational services at respondent's district due to his age, the record indicates that respondent offered a FAPE to petitioner's son during the 12th grade and, moreover, offered to provide appropriate services to petitioner's son after he did not complete the 12th grade.    I find that the educational counseling offered by respondent in conjunction with the Sappo placement was reasonably designed for the student to achieve his educational goals and objectives at Sappo.  The record does not support a finding that the student's lack of receipt of educational services after not completing the 12th grade was due to a gross violation of the IDEA by respondent.  Accordingly, an award of compensatory education is not warranted in this case.

            I have considered petitioner's remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.