04-054

       Petitioner, the student's guardian at the time of the hearing request, appeals from a decision of an impartial hearing officer which denied her requests that the student be provided "compensatory vocational education" and that a determination be made that respondent unreasonably delayed the due process proceedings below. Respondent cross-appeals from the impartial hearing officer's determination that it was a proper party to the hearing. Respondent further cross-appeals contending that the impartial hearing officer erred in ordering additional instruction to the extent that the instruction could be provided after the student becomes ineligible for special education by reason of age or graduation. The appeal must be dismissed. The cross-appeal must be sustained in part.

        At the time of the hearing request, the student was 17 years old and classified as other health impaired (OHI). The student's classification is not in dispute. His education history is set forth in Application of a Child with a Disability, Appeal No. 04-030, and Application of a Child with a Disability, Appeal No. 03-011, and will not be repeated here in detail.

        Two primary issues are raised in this appeal. The first is whether the impartial hearing officer awarded appropriate equitable relief given respondent's concession that it did not meet its "child find" obligations and provide special education services to the student during his incarceration (May 18, 2004 Tr. pp. 7-8). The second issue is whether respondent is a proper party in this proceeding.

        Petitioner and the student are residents of the Springville-Griffith Institute Central School District (Springville-Griffith) (Pet. ¶ 3; Answer ¶ 5). On June 24, 2003, a Springville-Griffith Committee on Special Education (CSE) recommended, for the 2003-04 school year, that the student attend a 12:1+1 board of cooperative educational services (BOCES) center based program for 150 minutes per school day and receive 30 minutes of individual counseling twice a week (IHO Ex. 2 at Ex. C). One day after the CSE meeting, the student was incarcerated in the Erie County Correctional Facility which is located in the Alden Central School District (IHO Ex. 1 at Ex. 1). He was discharged from the facility on December 10, 2003 (IHO Ex. 1 at Exs. 1, 7).

        Petitioner asserts that in June, July, and September 2003 she requested home/hospital instruction for the student from Springville-Griffith (IHO Ex. 1 at Ex. 1). On September 16, 2003, the student requested educational services from the Erie County Correctional Facility (IHO Ex. 1 at Ex. 16). In making this request, the student indicated on a "Youth Educational Services Request Form" that he had not been previously enrolled in a special education course (id.). On September 22, 2003, Springville-Griffith notified petitioner that respondent was responsible for the student's educational needs during his incarceration (IHO Ex. 1 at Ex. 1; see N.Y. Educ. Law § 3202[7]).

        In a November 11, 2003 letter to respondent, petitioner requested that it provide special education services to the student while at the correctional facility (IHO Ex. 1 at Ex. 2). In the letter, petitioner stated that the student's recommended 12:1+1 "special class placement is no longer appropriate and his needs now indicate a placement in a residential treatment facility" (IHO Ex. 1 at Ex. 2). Respondent scheduled a December 1, 2003 CSE meeting to discuss petitioner's request that the student be placed in a residential treatment facility (IHO Ex. 1 at Ex. 3). The CSE meeting was postponed, at petitioner’s request, because the additional parent committee member left the premises due to child care concerns (IHO Ex. 1 at Ex. 4). A CSE meeting was rescheduled for December 11, 2003 (IHO Ex. 1 at Ex. 5). This meeting did not take place because the student was released from the correctional facility on December 10, 2003 (IHO Ex. 1 at Ex. 5).

        While incarcerated, the student received regular education services provided by respondent in addition to substance abuse and career counseling provided by the correctional facility (IHO Ex. 1 at Ex. 18). The impartial hearing officer determined that the student received no special education services while incarcerated (IHO Decision, p. 4).

        The record reveals that although the student was incarcerated on June 25, 2003, respondent had no notice of his status as a student who had been receiving special education services until it received petitioner’s November 11, 2003 referral to respondent’s CSE (IHO Ex. 1 at Ex. 2). Springville-Griffith had notice of the student’s incarceration by September 22, 2003 (IHO Ex. 1 at Ex. 1), but the record does not reflect that they informed respondent that he was confined in respondent’s jurisdiction. The record does not reflect that petitioner advised respondent or the correctional facility of the student’s special education needs until November 2003. Neither did the student give notice (IHO Ex. 1 at 17).

        By letter dated December 8, 2003, petitioner requested an impartial hearing seeking: an "admission" by respondent that it denied a free appropriate public education (FAPE) to the student from June 2003 through December 2003; day-for-day "corrective action services" for the period the student did not receive special education and related services; compensatory education; placement in an appropriate residential program for the 2003-04 school year; vocational training; counseling; transition services, including independent living, postsecondary education, integrated competitive employment, adult services, adult education, driver's education; and attorney fees and expenses (IHO Ex. 1 at Ex. 6). By letter dated December 10, 2003, respondent notified petitioner that its CSE could not conduct the CSE meeting, previously scheduled for December 11, 2003, because the student was released from the correctional facility on December 10, 2003 (IHO Ex. 1 at Ex. 7) and that the parent's due process rights rested with the school district of the student's residence (IHO Ex. 1 at Ex. 8).

        Petitioner filed a complaint with the New York State Education Department (SED) on January 6, 2004 because respondent had not appointed an impartial hearing officer within required timelines (IHO Ex. 1 at Ex. 1). On January 16, 2004, SED sustained the allegation and directed respondent to appoint an impartial hearing officer by January 27, 2004 (IHO Ex. 1 at Ex. 9). A preliminary telephone conference was held on February 3, 2004 (Feb. 3, 2004 Tr. pp. 1-17). Respondent made a motion to dismiss on February 16, 2004 (IHO Ex. 1). Respondent alleged that it was not the proper party to the proceeding because any relief that could be granted would be the fiscal responsibility of the school district of the student's residence pursuant to section 3202(7) of the New York State Education Law. Petitioner opposed respondent's motion to dismiss based upon section 3202(7) which also provides that youths incarcerated in county correctional facilities are entitled to educational services provided by the school district in which the correctional facility is located (IHO Ex. 2 at p. 3). Another telephone conference was held on March 25, 2004, whereby oral arguments were made regarding respondent's motion to dismiss (Mar. 25, 2004 Tr. pp. 20-54). By decision dated April 16, 2004, the impartial hearing officer, agreeing with petitioner, found that respondent did not provide specific authority supporting its contention that the district bearing the financial responsibility for the services at issue was the proper respondent in the proceeding before him to enforce rights under the Individuals with Disabilities Education Act (IDEA) (IHO Ex. 3 at p. 3). The impartial hearing officer also found that a factual issue existed as to the extent to which respondent complied with its "child find" obligations while the student was incarcerated (IHO Ex. 3 at p. 5). The impartial hearing officer denied respondent's motion to dismiss and determined that a hearing was needed (id.).

        A hearing was conducted on May 18, 2004. In a decision dated July 2, 2004, the impartial hearing officer found that respondent conceded liability for failing to provide special educational services for a period of 65 school days (May 18, 2004 Tr. p. 8). The impartial hearing officer determined that the student was to receive special education instruction in a special education 12:1+1 class, with individual counseling twice a week for the 2003-04 school year. Having found that respondent conceded liability, the impartial hearing officer found that respondent denied the student a FAPE and ordered respondent to provide the student with 65 days of additional 12:1+1 instruction, individual counseling twice a week for 15 weeks, and transportation thereto (IHO Decision, p. 6). The impartial hearing officer ordered that this instruction should be provided on days when the student does not already have school, including summer months and after the student graduates or turns 21, if necessary (IHO Decision, p. 4). In addition, the impartial hearing officer found that he could not grant petitioner's request that the student be provided compensatory vocational education because there was no testimony as to what the student's 2003-04 individualized education program (IEP) (IHO Ex. 2 at Ex. C) required in this regard, nor was there an affidavit explaining exactly what vocational services were to be provided for the 2003-04 school year.

        Petitioner contends on appeal that the hearing officer erred in not awarding day- for-day corrective action and/or compensatory vocational education that was defined as a transition service on the student's 2003-04 IEP (IHO Ex. 2 at Ex. C) and requests that the student receive compensatory vocational education in Natural Resources/Heavy Equipment at the Cattaraugus-Allegany BOCES (Pet. ¶ 18). Petitioner also contends on appeal that the impartial hearing officer erred in not determining that respondent unreasonably delayed the hearing process and that he erred in not fully developing the record on the issue of what vocational services were to be delivered pursuant to the 2003-04 IEP. Respondent cross-appeals contending that the impartial hearing officer erred in not dismissing the petition on the ground that it was not a proper party to the proceeding, since any relief granted would be the fiscal responsibility of the school district of the student's residence. Respondent also contends on cross-appeal that the impartial hearing officer erred in ordering additional instruction "if need be, after [the student] graduates from high school or turns twenty-one" (IHO Decision, p. 4) to the extent that this could be interpreted as permitting implementation of relief after the student is no longer eligible for educational services under the IDEA (Answer p. 2 at ¶ 2[b]). Respondent requests that the impartial hearing officer's decision be modified to require the provision of "additional educational services" prior to the student graduating from high school or turning twenty-one (Answer p. 4 at ¶ 7).

        The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The 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. 04-043).

        To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL31521158 [S.D.N.Y. Nov. 14, 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        Incarcerated youth are entitled to educational services (N.Y. Educ. Law § 3202(7); 8 NYCRR Part 118). An incarcerated youth who has been identified as a child with a disability and eligible for services under the IDEA is entitled to special education and related services that provide a FAPE while incarcerated (34 C.F.R. § 300.122[a][2][ii]). If a student has an existing IEP prior to incarceration, the IEP must be implemented to the extent it can be implemented within a correctional facility (Handberry v. Thompson, 219 F. Supp.2d 525, 548 [S.D.N.Y. 2002]). If necessary, an IEP may be revised during the period of incarceration to fashion an appropriate special education program during the period of confinement (Handberry, 219 F. Supp. 2d at 548-49). The IDEA's "child find" provision places on school districts an affirmative obligation to identify, locate, and evaluate all disabled youth who reside in the district (see 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.125; § 300.300(a)(2); 8 NYCRR 200.2[a][1]). The child find obligation includes highly mobile children with disabilities, such as migrant and homeless children (34 C.F.R. § 300.125[a][2][i]), and incarcerated youth (Handberry, 219 F.Supp. 2d at 540-45).

        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]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

        While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded "additional 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. 02-047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

        First, I will address respondent's contention that it was not a proper party to this proceeding. There is no dispute that the student involved in this appeal a) is a student entitled to special education services, b) resided at a correctional facility located within the service area of respondent, and c) did not receive special education services from respondent during his incarceration. As permitted by federal and state law, petitioner initiated a hearing alleging that the student was denied a FAPE (34 C.F.R. § 300.507; 8 NYCRR 200.5 [i]). Given that she asserted that respondent was the party responsible for not providing a FAPE during the time period the student was located within respondent’s district, I find that respondent is a proper and necessary party in this due process proceeding. A necessary party is a person who ought to be a party, if complete relief is to be accorded between the persons who are parties in the action or proceeding, or who might be inequitably affected by the judgment in the action or proceeding (N.Y.C.P.L.R. § 1001; see Application of a Child with a Disability, Appeal No. 95-81). I conclude that respondent must be involved in this matter in order to accord complete relief and that respondent is affected by my decision in this matter.

        Having determined that respondent is a proper party, the merits of petitioner’s claim must be addressed. Respondent asserts that it acted in "good faith" but that it "did not do enough to locate [the student] as a child with a disability in the Erie County Correctional Facility" (May 18, 2004 Tr. p. 7). The record does not show that the student received any special education services while incarcerated. Despite the apparent failure of Springville-Griffith, petitioner, and the student to give respondent notice that the student had an existing IEP, respondent’s child find duty is an affirmative one that the district failed to meet in this situation. The only screening mechanism in place to identify youths with special education needs coming into the correctional facility is an ambiguously worded self-identification form that respondent described as "a problem" (Mar. 25, 2004 Tr. p. 48). The impartial hearing officer determined that the student was denied a FAPE while at the correctional facility. I agree. I, therefore, order that respondent review its policy and procedures pertaining to implementation of its child find obligation at the Erie County Correctional Facility and identify and correct any deficiencies. It is clear from the facts of this case that the screening process used that relied solely on self-identification by an incarcerated youth as an individual in need of special education is inadequate for child find purposes.

        I now turn to the issue of determining whether appropriate relief in the form of educational services was awarded. Petitioner appeals only the portion of the impartial hearing officer's decision denying compensatory vocational education. Respondent cross-appeals contending that the impartial hearing officer erred in awarding the student additional instruction to the extent that this could be interpreted as permitting implementation of relief after the student is no longer eligible for instruction. The student was incarcerated from June 25, 2003 through December 10, 2003 (Pet. ¶ 2; Answer ¶ 5). During this time, the student received regular educational services that resulted in the student earning a high school equivalency diploma (IHO Ex. 1 at Ex. 18). A December 16, 2003 memo from the "ECCF" (Erie County Correctional Facility) program director to respondent’s special education director states that the student made "very positive accomplishments" and he was a "cooperative student" (IHO Ex. 1 at Ex. 18). The memo states that the student was tested in reading and math and scored a grade equivalent of "12.9 +" on both tests, had strong verbal skills, worked diligently, researched career interests, prepared a resumé and cover letter, discussed interviewing techniques and had career plans. In addition, the memo states that he received counseling by a certified alcohol and substance abuse counselor. I note that the latter service was consistent with special alerts identified on his June 24, 2003 IEP (IHO Ex. 2 at Ex. C).

        I concur with respondent’s argument that the impartial hearing officer’s award of educational services amounted to an improper award of compensatory education to the extent that they could be awarded after the student became ineligible by reason of age or graduation for IDEA services. I also concur with respondent’s assertion that there was no gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. There is no evidence of either in the record. As such, petitioner is not entitled to compensatory education. Although the student was not receiving services pursuant to his IEP, he was receiving general education and counseling services throughout his confinement. Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction. When the hearing began, he was 17 years old and had not yet received a high school diploma.¹ The deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094).

        In the instant case, the impartial hearing officer also awarded equitable relief in the form of additional educational services that could be provided to the student prior to his becoming ineligible for services under the IDEA after finding that the student was improperly denied services to which he was entitled to while incarcerated. I find that the student did not receive educational services consistent with his IEP. 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 2003-04 IEP. Here, the record does not clearly indicate what additional services are needed to remedy the deprivation of services. Accordingly, I cannot determine from the record what additional services may be warranted in this case. I find that although additional educational services may be warranted I do not find that the record supports an award of day-for-day compensation for services or time missed. The award of 65 days of additional 12:1+1 instruction and individual counseling twice a week for 15 weeks, and transportation is inappropriate given the circumstances of this case. Even petitioner, in her letter dated November 11, 2003, indicated that the 12:1+1 instruction was not appropriate (IHO Ex. 1 at Ex. 2). The record provides insufficient evidence for a determination as to the student’s current needs and whether the additional services awarded will meet these needs (Application of a Child with a Disability, Appeal No. 03-067; Application of a Child with a Disability, Appeal No. 98-49). Moreover, there is nothing in the record to indicate where or when the additional services would be provided or whether the location or timing of delivery of services would be appropriate. Therefore, I will annul the impartial hearing officer’s award of specifically identified additional services. Under the circumstances of this unusual case, I will direct counsel for respondent to convey by letter to Springville-Griffith information indicating specifically what educational services were provided to the student at the correctional facility and what services on the student’s IEP were not provided. At the next CSE meeting convened at Springville-Griffith, the student’s current educational needs should be determined and appropriate services provided to meet his needs. If it is determined by the Springville-Griffith CSE that provision of additional services is appropriate, after taking into consideration the non-implementation of the student’s IEP at the correctional facility, then the appropriate services should be provided by Springville-Griffith.

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that he ordered 65 days of additional 12:1+1 instruction, with transportation thereto, and individual counseling twice a week for 15 weeks, with transportation thereto; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that counsel for respondent, within 30 days of the date of this decision, shall convey by letter to Springville-Griffith, with a copy of such letter to petitioner, information indicating specifically what educational services were provided to the student at the correctional facility and what services on the student’s June 24, 2003 IEP were not provided; and

IT IS FURTHER ORDERED that, within 90 days of the date of this decision, respondent shall review its policy and procedures pertaining to implementation of its child find obligation at the Erie County Correctional Facility and identify and correct any deficiencies.