Application of the BOARD OF EDUCATION OF THE SHENENDEHOWA CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for petitioner, Susan T. Johns, Esq., of counsel
Disability Advocates, Inc., attorney for respondents, Jennifer Monthie, Esq., of counsel
Petitioner, Board of Education of the Shenendehowa Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son for the 2003-04 school year and, as a form of compensatory education, ordered it to reimburse respondents for the cost of six college credits (two courses) at Hudson Valley Community College (HVCC) and, upon successful completion, to retroactively award respondents' son a Regents diploma. The appeal must be sustained.
At the time of the hearing, respondents' son was 18 years old, had graduated from petitioner's high school with a local high school diploma (Dist. Exs. 41), and had begun attending classes at HVCC (Tr. pp. 269, 290). As a preschooler, the student was determined eligible for special education, classified as speech-impaired and provided speech therapy services (Dist. Ex. 1; Dist. Ex. 36 at p. 2). He was subsequently declassified by the district in kindergarten (Dist. Ex. 36 at p. 2). The student attended a private school from first grade through sixth grade (Parent Ex. 4 at p. 1; Tr. p. 222). The student returned to the district and enrolled in junior high school for seventh grade in August 1998, whereupon his parents referred him to the district's Committee on Special Education (CSE) for evaluation (Dist. Ex. 2).
The school psychologist performed a psychological evaluation of the student in October and November 1998 (Dist. Ex. 5). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 95, a performance IQ score of 100 and a full scale IQ score of 97; all scores which indicated that the student's cognitive skills were in the average range of intellectual functioning (Dist. Ex. 5 at p. 2). The Kaufman Test of Educational Achievement (K-TEA) was administered to assess the student's skills in reading, spelling and math (id.). The student's composite standard scores were within the average range (reading: 103, spelling: 97, math: 90) (Dist. Ex. 5 at pp. 2-3). The examiner reported that the student's performance on the Test of Written Language-3 (TOWL-3), which assessed the student’s ability to apply the rules of grammar, was "within the range expected for his age and assessed ability". (Dist. Ex. 5 at p. 3). The evaluator concluded that the student did not qualify for identification as a student with a disability at that time (id.).
While the student was in seventh grade, a CSE convened on on February 5, 1999 to determine his eligibility for special education (Dist. Ex. 7). The CSE noted that the student's grades were poor despite test results that had revealed average cognitive abilities (Dist. Ex. 7 at p. 1). Noted areas of need included refocusing, redirection, and development of organizational strategies and study skills (Dist. Ex. 7 at p. 3). The CSE recommended that, due to a diagnoses of migraines, the student be classified as other health impaired (OHI) and that he receive resource room support services five times per week for 40 minutes for the remainder of his seventh grade school year (Dist. Exs. 7, 8). A few months later, on April 29, 1999, the CSE met to develop the student's program for his upcoming 1999-2000 eighth grade school year (Dist. Ex. 10). His report card for the third quarter of his seventh grade year revealed an overall average of C- (Dist. Ex. 10 at p. 7). The CSE noted that during seventh grade the student had experienced difficulty in the areas of time management, organization, and in consistently understanding information presented in his classes (Dist. Ex. 10 at p. 1). The resultant eighth grade IEP continued the student in resource room services five days per week for 40 minutes, and added test modifications which provided for flexible settings and extended time (Dist. Ex. 10 at pp. 4-5). It included goals and objectives in organizational skills, study skills, and time management (Dist. Ex. 10 at p. 6). In his eighth grade year, the student continued to struggle academically, receiving Ds in English and Social Studies, and failing Science and Health in the second quarter (Dist. Ex. 13 at p. 2). Toward the end of eighth grade, in March 2000, the student was diagnosed with attention deficit hyperactivity disorder-inattentive type (ADHD) and was placed on medication by his doctor (Dist. Ex. 13 at p. 3; see Dist. Ex. 18 at p. 3).
The student entered the district’s high school in September 2000 (see Dist. Ex. 13). For the student’s ninth grade 2000-01 school year, in addition to resource room services five times per week, the CSE recommended consultant teacher services two to three times per week for 80-120 minutes in the areas of English, Math, Science and Social Studies (Dist. Ex. 13 at p. 5). The CSE also recommended program modifications such as seating near the teacher to monitor the student’s attention and recommended extra help sessions on a regular basis, especially prior to exams (Dist. Ex. 13 at p. 4). While the box on the IEP for “Expected diploma” had “Regents diploma” checked (Dist. Ex. 13 at p. 1), the student's ninth grade transition plan, derived from career assessment interviews with the student and his parents, indicated that the student planned to graduate with "a regular high school diploma" and attend a two or four year college (Dist. Ex. 13 at p. 7). In ninth and tenth grade the student was enrolled in Spanish and received passing marks (Dist. Exs. 37, 38, 41). His tenth grade 2001-02 IEP provided for the same level of resource room services and consultant teacher services as his ninth grade IEP (compare Dist. Exs. 13, 18), and although the box on the IEP for “Regents diploma” was again checked as the “expected diploma” (Dist. Ex. 18 at p. 1), his tenth grade transition plan indicated that he planned to attend a four year college and the instructional goal was to continue to prepare to get a high school diploma (Dist. Ex. 18 at p. 9). In a psycho educational evaluation report produced at the end of the student's tenth grade year, the student was described as highly motivated to succeed, and as passing all of his classes with grades in the 70's and low 80's range, but that he tended to work very slowly and required assistance with time management, prioritizing tasks, and organizing his writing assignments (Dist. Ex. 27).
For the student's eleventh grade 2002-03 school year, the CSE recommended a continuation of resource room services five days per week for 40 minutes, but offered consultant teacher services only in American Literature (Dist. Ex. 22 at p. 5). In addition to preferential seating, extended time to complete tests and flexible settings, program and test modifications were expanded to include the following: (1) give assignments both orally and in writing to allow enough time to record assignment before leaving class, (2) provide models and/or demonstrations when giving directions, (3) use visuals and/or concrete examples to promote understanding, (4) provide opportunities for small group activities during class, (5) provide models and guided practice when assigning essays and research papers, (6) provide opportunities and guided practice to proofread and revise written work before submission for a final grade, (7) establish checkpoints when assigning long term projects or research papers to help the student meet the final deadline, and (8) provide use of a calculator (Dist. Ex. 22 at pp. 6-7). The IEP noted that the student benefited by preparing for tests with the resource room teacher (Dist. Ex. 22 at p. 2).
The student’s eleventh grade IEP again checked “Regents Diploma” as “Expected diploma” (Dist. Ex. 22 at p. 1). His transition plan indicated that he intended to attend a two or four year college and that he “would be pursuing an eleventh grade program to complete the Regents diploma requirements” (Dist. Ex. 22 at p. 11). The plan indicated that the student would meet with his guidance counselor to review graduation requirements, examine college entrance requirements, and discuss possible career options (id). In the spring, the school provided the student with a “Program of Studies Guide” which listed all possible diplomas and Regents sequences (see Parent Exs. 23, 24), and representatives from the guidance office discussed graduation requirements with students in small groups (Tr. p. 192). Later, respondents and their son met with the student’s counselor to individually discuss the various available sequences for a Regents diploma, after which the student and his parent selected a course of studies with a music sequence and a science sequence (Parent Ex. 30; Tr. pp. 218-19, 289-90, 227-28, 205; see Ans. ¶ 37). A copy of the Program Planning Form, indicating the credits needed for a Regents diploma, the sequences available, and the sequences the student and his parent had selected was reportedly provided to the parent (see Parent Ex. 30; Tr. p. 272).
During his eleventh grade year the student continued to receive marks in the 70’s and low 80’s in most of his core academic subjects, with slightly lower marks (60’s and 70’s) in Chemistry (Dist. Ex. 39). The student’s guidance counselor stated that when he met with the student in Spring 2003 to plan the student’s senior year schedule he went over the Regents requirements again and reminded respondent’s son that he needed to pass the Chemistry Regents as part of his Regents sequence to qualify for a Regents diploma (Tr. pp. 196-97). At the end of his eleventh grade year, in June 2003, the student passed his English, History, and Math Regents, but failed his Chemistry Regents exam (Dist. Ex. 39). After taking a review course offered by the district over the summer, he took the exam again in August 2003, but also failed to achieve a passing grade (Tr. pp. 153, 199; Dist. Ex. 41). It is undisputed that the district provided all of the services on the student's eleventh grade IEP, including resource room and consultant teacher services for test preparation, and that all program and test modifications were provided during his Regents exams (see Tr. pp. 78, 274).
In the spring of the student’s eleventh grade year the CSE convened for an annual review to develop the student’s IEP for his 2003-04 senior year (Dist. Ex. 30). Instead of resource room services, the CSE recommended direct consultant teacher services in study skills for 40 minutes, five times every two weeks in a separate location, and indirect consultant teacher services in study skills in the regular classroom (Dist. Ex. 30 at p. 1). Program modifications included access to a word processor for all written assignments, Graphic Organizer/Visual Map, opportunities to review the writing process including brainstorming, graphic organizers, outlines, thesis statements, topic sentences, supporting details, editing and revising (Dist. Ex. 30 at p. 1). Testing accommodations included administering tests in locations with minimum distractions, extended time, use of calculator, use of grammar check device, use of spell check device, and word processor (id.). The front page of the IEP indicated a “Regents diploma” under “Recommended Classification and Placement Information” (Dist. Ex. 30 at p. 1); however, the transition plan within the IEP stated that the student would like to attend a two-year college and pursue a career in music, and that he would “participate in a regular course of study with the recommended special education services which leads to a high school diploma” (Dist. Ex. 30 at p. 3).
At the beginning of the student’s senior year, he had completed all of the coursework necessary for a Regents diploma and passed all of the required exams, with the exception of the Chemistry Regents exam (Tr. pp. 153, 199-200). The student’s guidance counselor met with the student and his parent at the start of the school year and went over his record and the requirements for a Regents diploma and informed them of the fact that the student still needed to pass the Chemistry Regents to receive a Regents diploma (Tr. pp. 198, 203-05, 232). The student and his parent were provided with another “Program of Studies Guide”, explaining the regulations and requirements for all types of diplomas (Parent Ex. 24; see Tr. p. 236). The student’s guidance counselor met with the student’s parent between five and ten times during the 2003-04 school year to discuss the student’s graduation requirements (Tr. pp. 203-05). The student’s mother stated that the parents' plan and their son’s plan was always for him to attend HVCC (Tr. pp. 268-69). The counselor inquired about the student’s future plans, discussed the advantages and disadvantages of pursuing a Regents diploma, and informed the student that whether he obtained a local or a Regents diploma would not affect his post-graduate plan (Tr. p. 211). The student’s guidance counselor testified that the student had remarked that attaining a Regents diploma was not as important to him as it was to his parents (Tr. p. 211).
In addition, the Director of Guidance met with the student’s mother at least ten to fifteen times during the student’s senior year to answer the parents’ questions on the Program of Studies Guide, the Regents requirements, sequence options, and the foreign language exemption (Tr. pp. 163, 166-67). The Director of Guidance also met with the student on more than five occasions to explain the diploma options to him and the effect, if any, of his failure to pass the Chemistry Regents (Tr. pp. 151-58). He explained to the student that he could take additional courses in English or Social Studies after graduation to fulfill the Regents requirement, or he could continue to try to pass the Chemistry Regents his senior year (Tr. p. 156). The Director of Guidance also informed them that the student’s goal of attending a two or four-year college in his desired field of music would not be affected by the type of diploma the student received (Tr. pp. 150-51, 157, 162). The student’s guidance counselor and the Director of the Guidance Department assisted the student in setting up individual tutoring sessions with the Chemistry Department Chairperson in the fall to prepare the student to take the Chemistry Regents exam again (Tr. pp. 153-54).
In January 2004 the student failed the Chemistry Regents examination for the third time (Tr. p. 241). It is undisputed that all of the student’s twelfth grade IEP special education services, including program modifications and testing accommodations, were provided to him (Tr. pp. 78, 274).
During the remainder of his senior year, the student’s grades continued to be generally in the 70’s and low 80’s in his core academic subjects (Dist. Ex. 41 at p. 4). In May 2004, the school psychologist evaluated the student (Dist. Ex. 32). He noted that the student was finishing his senior year on track to graduate next month with his local high school diploma (Dist. Ex. 32 at p. 1). Testing revealed that the student continued to possess average intellectual abilities with relative strengths in reading and spelling, but with consistent difficulties in math and science (Dist. Ex. 32 at pp. 1-2). The student was described as very cooperative and friendly and informed the evaluator he was planning to attend HVCC in Fall 2004 (Dist. Ex. 32 at p. 3). The evaluator recommended in his report that the student continue to receive support services at the post-secondary level (Dist. Ex. 32 at p. 3).
By letter dated May 13, 2004, the student’s parents requested a CSE meeting to “address the issue of [the student] failing to meet the requirements of a Regents Diploma”, claiming that “the school counselors failed to schedule the appropriate courses” and requesting that the CSE consider the student’s eligibility for a foreign language exemption (FLE) as a means of the student possibly qualifying for a Regents diploma without the needed science sequence (Dist. Ex. 33)1. The CSE scheduled a meeting on June 1, 2004 with the Foreign Language Department Chairman and the Director of the Guidance to address the parents’ concerns (Dist. Ex. 36; Tr. p. 50). The CSE discussed the student's eligibility for a FLE with the Foreign Language Department Chairman and determined that the student did not meet the criteria for exemption because: (1) the student did not have standardized achievement scores in reading or written language that were two or more standard deviations below the mean, (2) the student had been declassified as speech-impaired at the end of kindergarten and his current classification did not indicate a speech-impairment, and (3) the student was screened by the Foreign Language Department Chairman in Spring 2003 and was determined to be able to benefit from Foreign Language instruction, as he had by then already successfully completed and surpassed his one year minimum foreign language requirement for a high school diploma in ninth and tenth grade (Dist. Ex. 36 at p. 2; see Parent Ex. 14; Tr. pp. 60, 100-02, 110). By letter dated the same day, the district notified the parents the student had met the requirements and would be receiving a local diploma, but that since the student had failed the Chemistry Regents they could not award him a Regents diploma at that time; nevertheless, the district offered to award respondents’ son a Regents diploma retroactively upon receipt of proof that the student had earned six college credits in either English or History, sufficient to replace the science sequence (Dist. Ex. 35).
Respondents did not accept the CSE’s determination, and on June 17, 2004 requested an impartial hearing seeking an order for the CSE to conduct additional testing to determine whether their son had a language processing disability which could qualify him as eligible for a FLE which could then arguably serve as the basis for awarding him a Regents diploma (Dist. Ex. 43; see also Dist. Ex. 40). Prior to the hearing they amended their request to include a claim for compensatory education in the form of reimbursement for college credits necessary for the student to obtain a Regents diploma (see Pet. Ex. A). Respondents’ son graduated with a local high school diploma in June 2004 (Dist. Ex. 41), and began attending classes at HVCC in September 2004 (Tr. pp. 269).
The hearing was held on November 17, 2004 and November 29, 2004. The impartial hearing officer rendered his decision on March 2, 2005, finding that the district failed in not providing a transition plan sufficient for the student to achieve his goal of receiving a Regents diploma, and further found this constituted a gross violation of the IDEA. The impartial hearing officer ordered the district to pay for six college credits of English or History at the local community college that the student was attending as compensatory education, and, if the student successfully passed the courses, the impartial hearing officer ordered the district to comply with their earlier offer to retroactively modify the student's diploma to reflect a Regents designation. Petitioner appeals, asserting that the district provided the student with an appropriate program, and that the award of compensatory education was improper because there was no gross violation of the IDEA. Petitioner is correct.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][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 individualized education program (IEP) (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). Implicit in the concept of FAPE is the requirement that the education must confer “some educational benefit” upon the student (Rowley v. Bd. of Educ., 458 U.S. 176, 200-01 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; 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 (Rowley, 458 U.S. 176, 206, 207 ). In evaluating the substantive program developed by the CSE, 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). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
Compensatory education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child Suspected of having a Disability, Appeal No.03-094; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-65), may be awarded if there has been a gross violation of the IDEA (Garro v State of Connecticut, 23 F.3d 734, 737 [2nd Cir. 1994]) such as the type resulting in the denial of, or exclusion from, educational services for a substantial period of time during the student’s period of eligibility for special education (Mrs. C. v Wheaton, 916 F.2d 69, 75 [2nd Cir. 1990]; Burr v Ambach, 863 F.2d 1071, 1078 [2nd Cir. 1988]; Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 01-094).2 Compensatory education, as an equitable remedy, is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff’d 208 F.3d 204 , cert. denied 531 U.S. 1019 ).
In the instant case, respondents claim that because petitioner’s transition plan did not result in the award of a Regents diploma to their son, and he was not considered for alternate routes such as a “retroactive” FLE as a theoretically possible way of obtaining a Regents diploma, the CSE’s actions constituted a gross violation of the IDEA. Respondents’ argument fails for several reasons. First, to the extent that respondents raise a claim regarding the FLE requirements as they relate to sequences needed for a Regents diploma (i.e., whether FLE status exempts a student from completing two sequences for a Regents diploma or not), neither an impartial hearing officer, nor a State Review Officer may pass upon the academic standards required by the State of New York for graduation in a proceeding of this nature, which must be limited to the program and services provided by petitoner (Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 96-67; Application of a Child with a Disability, Appeal No. 94-31). In any event, I note that in the instant case, respondents’ son had already successfully completed and surpassed the one year foreign language class requirement (see Dist. Ex. 41; Tr. pp. 102, 110, 130-31), which is strong evidence that his disability was not of a nature that required such an exemption, even if it could be done “retroactively.” Moreover, the school psychologist who evaluated the student in 2004 testified that the student’s disability did not adversely affect his ability to learn a foreign language (Tr. p. 281), and he saw no evidence in his testing that would indicate a language processing disorder (Tr. p. 285).
Second, respondents claim that petitioner’s transition plan failed because it did not result in the award of a Regents diploma to their son. Respondents’ son was not guaranteed any particular type of diploma under the IDEA, but rather a program consisting of special education and related services reasonably calculated to confer educational benefit to him (Rowley, 458 U.S. at 206-07). The fact that the student failed to pass the Chemistry Regents and obtain a Regents diploma is not indicative of a denial of FAPE in and of itself, especially in light of the fact that respondents do not dispute their son received all the services on his IEP, including an array of test accommodations, program modifications, daily resource room study skills services, and even additional tutoring for the Chemistry Regents. A student’s academic progress must be viewed in light of the limitations imposed by the student’s disability (Mrs. B. v. Milford, 103 F.3d 1114, 1121 [2d Cir. 1997]). The record reveals that the student’s grades in all his subjects were similar, and that he also took the Math Regents exam three times before passing it (Tr. p. 66). A local high school diploma is evidence of educational benefit, and respondents do not dispute that all of the services and supports on the student’s IEP were provided to their son during his senior year (Tr. pp. 78, 274). Hence, I find that respondent’s son’s receipt of a local high school diploma instead of a Regents diploma was not a gross violation of the IDEA (see Application of a Child Suspected of Having a Disability, Appeal No. 03-094).
Third, the student’s transition plan and long term goal was always to attend a two or four year college, specifically HVCC, after graduation (Tr. pp. 268-69; see Dist. Exs. 13, 18, 22, 30). His transition plans for ninth, tenth, and twelfth grades referred only to obtaining a high school diploma, not a Regents diploma; his eleventh grade plan merely stated he was enrolled in a program to complete the Regents diploma requirements. The fact that a Regents diploma was indicated on the IEPs as “Expected” does not guarantee it will be awarded. I also find, contrary to the impartial hearing officer, that coordinated transition services were provided by the Guidance Department to aid the student and parent in selecting the student’s courses; written materials were provided explaining diploma requirements, numerous individual counseling meetings were held with the student and/or the student’s parent with his guidance counselor as well as with the Director of Guidance explaining the student’s options over the school year, and the Director even arranged for additional individual tutoring in Chemistry in order to help the student pass the Chemistry Regents. Moreover, the fact that he did attain his IEP post-secondary education goal of receiving a high school diploma and his personal goal of attending HVCC, indicates that his transition plan was successful in that he did meet his desired outcome. While the transition plan could have been more detailed with regard to transition services to be provided, I am not persuaded upon the facts of this case that this alone afforded the basis for finding that the student was denied a FAPE (Application of a Child with a Disability, Appeal No. 96-67). In any event, there was no gross violation of the IDEA such as a denial of or exclusion from educational services for a substantial period of time necessary to warrant an award of compensatory education (Application of a Child Suspected of Having a Disability, Appeal No. 03-094).
In conclusion, while the parents' desire that their son receive a Regents diploma is understandable, the IDEA does not require states to develop IEPs that "maximize the potential of handicapped children" (Rowley, 458 U.S. at 197 n.21, 199). What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonacchio v. Bd. of Educ., 281 F.Supp.2d 710, 726 [S.D.N.Y. 2003]). Under the Rowley standard, it is the district's burden to show that it offered a program which provided the child with meaningful access to an education with "sufficient educational benefit" (Rowley, 458 U.S. at 202), which the Second Circuit has interpreted to be "more than mere trivial advancement" (Mrs. B., 103 F.3d at 1121; seeWalczak, 142 F.3d at 130; see also M.S., 231 F.3d at 105). The IDEA does not require school districts to maximize the potential of each child with a disability (Rowley, 458 U.S. at 199), or provide the best possible program (see Walczak, 142 F.3d at 130), it simply requires school districts to provide access to specialized instruction and related services which are individually designed to provide educational benefit to the child (Rowley, 458 U.S. at 200-201). In the instant case, I find that the district has met its burden of demonstrating that it offered the student an appropriate program for the 2003-04 school year. I will annul the impartial hearing officer’s decision in its entirety, including his order for the district to award a retroactive Regents diploma to the student upon completion of certain college credits (which I find exceeded his authority, see Application of a Child with a Disability, Appeal No. 94-31).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled;
1 State regulations provide that a student identified as having a disability which adversely affects the ability to learn a language may be excused from the language other than English requirement if such student's individualized education program indicates that such requirement is not appropriate to the student's special education needs. Such a student need not have a sequence in a language other than English but must meet the requirements for the total number of credits required for a diploma (8 NYCRR 100.5 [b][ii][b]).
2 I note that, given the fact that graduation and receipt of a high school diploma are generally considered to be strong evidence of educational benefit, taken together with the Second Circuit’s high standard requiring the presence of a gross violation of the IDEA prior to an award of compensatory education, it would appear that it would be the rare case where a student graduates with a high school diploma and yet still qualifies for an award of compensatory education.