Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of White Plains
Ingerman Smith, LLP, attorney for respondent, Ralph C. DeMarco, Esq., of counsel
Petitioner appeals from the part of the decision of an impartial hearing officer which denied her request for dual classification of her son as a student with an emotional disturbance (ED) and as learning disabled (LD), and denied her request for compensatory education and transportation. Respondent cross-appeals from that portion of the impartial hearing officer’s decision which found that the program recommended by the Committee on Special Education (CSE) for the 2003-04 and 2004-05 school years was not appropriate. The appeal must be dismissed. The cross-appeal must be dismissed.
At the time of the hearing the student was 12 years old. His is currently eligible for special education services and programs as a student with ED (see 8 NYCRR 200.1[zz]). His classification is in dispute.
The student has a history of behavior difficulties such as outbursts of anger and poor self-control (Parent Ex. DDDD at p. 2). In nursery school the student would push, hit, and bite other children when frustrated, and had difficulty sharing and cooperating. Throughout elementary school the student continued to exhibit behavior difficulties such as temper outbursts, inappropriate language, teasing, bullying, disruptive and defiant behaviors, noncompliance with rules, and frustration with demands of academic tasks. He responds inappropriately to authority, has difficulty accepting limits, and his acting out behavior, along with his inability to make good decisions, has at times created unsafe situations. The student adjusts poorly to transitions in routine, has demonstrated difficulties with peer relations and social skills, and reportedly has few friends. He also has a history of depression and frequent fluctuations in mood.
In addition to his behavior difficulties, the student has a history of attention deficits and uneven academic performance (Parent Ex. DDDD at p. 2). Nursery school evaluation results indicated that at that time, the student's behavior was not interfering with his learning, and he remained in a general education preschool and kindergarten setting. His kindergarten teacher reportedly indicated that the student's fine motor skills were delayed.
The student entered first grade in the White Plains Central School District during the 1998-99 school year (Parent Ex. DDDD at p. 2). He attended one of respondent’s elementary schools for grades one through four, where he was enrolled in general education classes and received general education academic support to address learning, attention and emotional difficulties. In first grade, the student participated in a reading recovery program. In second grade, during the 1999-2000 school year, the student received help through the use of learning strategies and pull-out support. His behavior reportedly escalated in second grade and he was recommended for a counseling program identified in the record as Educationally Related Support Services (ERSS). The ERSS counseling continued through the student's third grade year, but the record indicates that the student's attendance was sporadic. In the fourth grade, the student received tutoring services to address reading difficulties.
Prior to entering fourth grade in the 2001-02 school year, the student was diagnosed with an attention deficit hyperactivity disorder (ADHD), for which medication was prescribed (Parent Ex. DDDD at p. 4). His ability to attend improved with the medication, but he appeared depressed, angry and irritable, and evidenced mood swings. He was subsequently diagnosed with Major Depressive Disorder.
In August 2001, petitioner referred her son to respondent’s CSE (Parent Exs. P, WWWW at p. 6). In November 2001, the CSE reviewed available multidisciplinary evaluations of the student and determined that he was ineligible for classification as a student in need of special education services (Parent Exs. Y, LLLLLL, WWWW). Instead, the CSE recommended that an accommodation plan be developed for the student pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l] ) because his attention deficits, difficulties with spelling and writing mechanics, emotional style and approaches to tasks interfered with his school performance (Parent Ex. EEEEE at p. 6). Recommended accommodations included cues to remain on task, extended time for tests, test administration in a small group in a separate location, directions repeated, additional examples provided, and assistance with spelling, punctuation, and grammar (Parent Ex. EEEEE at p. 7).
Between 2002 and 2003 the student reportedly demonstrated episodes of rage in which he threatened to harm himself and others (Parent Ex. DDDD at p. 4). It appears that in May and June 2002, the student was suspended from school on two occasions for fighting and eventually injuring another child (Parent Exs. FF, DDDD at p. 3). On June 5, 2002 when the student was completing fourth grade, petitioner again referred her son to the CSE (Parent Ex. EE). On June 25, 2002, the CSE met (Parent Ex. KK; Dist. Ex. 55) and reviewed previous and updated test scores, teacher reports, and letters from petitioner (Parent Ex. KK at pp. 3-4; Dist. Ex. 55 at pp. 3-4). The student's teacher at the time discussed the student's continuous emotional needs throughout the 2001-02 school year (Dist Ex. 88 at p. 3). His counselor indicated that since February 2002, the student had taken a "turn for the worse" (id.). An evaluator who had conducted an independent educational evaluation (IEE) of the student concluded that the student had no real needs academically and that the student's psychiatric problems were overriding his educational needs (Parent Ex. II at p. 16) and at the CSE meeting did not express that the student was LD (Dist. Ex. 88 at p. 3). However, the independent evaluator recommended that the student be placed in a "therapeutic setting with psychiatric help" (see Dist. Ex. 88 at p. 3; Parent Ex. II at p. 16). The CSE found the student to be eligible for special education services and classified him as a student with ED (Parent Ex. KK; Dist. Ex. 55). It recommended that for the 2002-03 school year petitioner's son be placed in the fifth grade in an 8:1+1 class in the Passages Program (Passages), an in-district program at one of respondent’s elementary schools, and receive related services of individual and group counseling and skilled nursing services to monitor medications, as well as various test accommodations (Parent Ex. KK at p. 1). Additional psychology and speech and language evaluations were recommended (Parent Ex. KK at p. 4; Dist. Ex. 55 at p. 4) to assess the student's abilities in the areas of memory, executive functioning, and auditory processing (Parent Ex. FFFFF).
While in the fifth grade at Passages during the 2002-03 school year, the record reflects that the student demonstrated difficulty transitioning into Passages (Tr. pp. 1289-90, 1293), extreme mood fluctuations (Dist. Ex. 88 at p. 4), difficulty with a change of teaching staff in January 2003 (Tr. p. 1335), and emerging psychiatric concerns that led to a number of behavioral incidents (Dist. Ex. 88 at p. 5). These incidents included an episode in February 2003 when, contrary to staff directions for the student to return, the student walked away from a teaching assistant during a bus dismissal (Tr. pp. 1408-09), and in March 2003 when he threw a book and threatened a staff person, rather than proceed to the time out room and wait for a meeting with the principal (Tr. p. 1482). A functional behavioral assessment (FBA) was conducted and a behavioral intervention plan (BIP) was developed for the student on March 13, 2003 (Parent Ex. MMM).
In response to concerns raised by petitioner in a February 21, 2003 letter (Parent Ex. DDD), respondent’s director of special programs and services requested by letter dated February 26, 2003 (Parent Ex. EEE) that the CSE reconvene to review the appropriateness of Passages for the student (Parent Ex. EEE at pp. 2-3). The CSE convened on March 24, 2003 and recommended an out-of-district placement for the student with pendency placement in Passages for the remainder of the 2002-03 school year or until an appropriate out-of-district placement could be found (Dist. Ex. 66). However, after an incident in May 2003 in which the student became aggressive in the time out room (Tr. pp. 1529-30), he did not return to Passages and was instead placed on home instruction (Parent Ex. JJJJJ) with two adults present during all times when the student was receiving instruction (Dist. Ex. 19). On May 19, 2003, the student began attending an intensive day treatment program (Dist. Ex. 69), where he remained until the end of the 2002-03 school year (Parent Ex. MMMM at p. 2).
On June 24, 2003, the CSE met for the student's annual review and to formalize an out-of-district placement for summer 2003 and for the 2003-04 school year (Dist. Exs. 15, 88 at p. 7). For summer 2003, the committee recommended continuing ED classification with placement at a Board of Cooperative Educational Services (BOCES) therapeutic support program (TSP) at Bellows Elementary School with the related services of individual and group counseling, each once per week for 30 minutes, individual and group occupational therapy each once per week for 30 minutes, and skilled nursing services daily for 15 minutes (Dist. Ex. 15 at p. 2). For the 2003-04 school year, the CSE recommended placement in a sixth grade 8:1+1 BOCES TSP class at Kensico Elementary School (Kensico) with the related services of individual and group counseling, each once per week for 30 minutes, individual and group occupational therapy (OT) each once per week for 30 minutes, and skilled nursing services daily for 15 minutes as well as various test modifications including administration of tests in several sessions, and access to a computer (id.). The CSE also recommended that an FBA be conducted and a BIP be developed for the student (Dist. Ex. 15 at pp. 2-3).
The student entered the BOCES TSP at Kensico in the beginning of September 2003 (Dist. Ex. 15 at p. 2). The TSP is described as an academic program designed for students who have good academic skills but who, because of their varying emotional needs, require more support than they would receive in a general education classroom (Tr. p. 804). Most of the students enrolled in the TSP exhibit challenging behaviors (Tr. p. 808). The TSP addresses social skills training, training in anger management strategies, communication skills and problem solving (Tr. pp. 808-09).
On September 23, 2003, the student was hospitalized for approximately nine days at an inpatient psychiatric facility (Dist. Ex. 3 at p. 1). He returned to the TSP at Kensico after his discharge from the hospital and remained in the program for the remainder of the 2003-04 school year (Dist. Ex. 3 at p. 2). In spring 2004 petitioner's son was diagnosed with Bipolar Disorder (Parent Ex. DDDD at p. 4).
In December 2003, petitioner was advised that her son had not been receiving OT services in accordance with his 2003-04 individualized education program (IEP) (Parent Ex. WWW at p. 1). In March 2004, the CSE Chairperson informed petitioner that in February 2004, the student began receiving the OT services specified on the IEP and an additional two sessions per week (Dist. Exs. 15, 26).
In March 2004, petitioner requested a CSE program review to consider and determine a placement change for her son because she believed that his "educational and related behavioral and emotional/psychological difficulties have worsened" (Dist. Ex. 28; Parent Ex. XXX). On April 22, 2004, the CSE convened to review the student's placement at the BOCES TSP at Kensico and recommended that for the 2004-05 school year the student be referred to other BOCES programs and to approved private schools (Dist. Ex. 12 at pp. 1, 2). Pending location of an appropriate placement, the student was to remain in the TSP and receive related services and testing accommodations as specified in his June 2003 IEP (Dist. Ex. 15). The CSE followed through on its placement recommendation by making inquiries regarding availability in 20 different programs (Parent Ex. DDDDDD). No acceptances of the student are reflected in the record (see Parent Ex. EEEEEE). A neuropsychological evaluation was recommended by the CSE at the April 2004 meeting (Dist. Ex. 12 at p. 2).
In a letter dated May 14, 2004, petitioner indicated that that she was dissatisfied with the IEP created on April 22, 2004, due in part to the IEP's failure to recommend an FBA and a BIP (Parent Ex. CCCC). On June 16, 2004, the CSE convened for the student's annual review and to develop his IEP for the 2004-05 school year (Dist. Ex. 13). The student's March 13, 2003 FBA and BIP were reviewed at this meeting, as were other evaluations and progress reports (Parent Ex. MMM; Dist. Ex. 13). The CSE recommended continued classification of the student as ED, extended school year (ESY) services for summer 2004 at the BOCES TSP at Bellows Elementary School, and a seventh grade placement in an 8:1+1 BOCES TSP at Farragut/Hastings Middle School (Farragut/Hastings) for the 2004-05 school year (Dist. Ex. 13 at pp. 2-3). The TSP at Farragut/Hastings included weekly individual and group counseling services with a psychologist, plus additional supports of crisis intervention, monthly family contacts and a consulting psychiatrist. Consistent with the previous IEPs, the CSE recommended that in 2004-05 the student continue to receive related services of counseling, OT, and skilled nursing to monitor medications, and also that the student's test modifications be maintained. The IEP indicated that petitioner was in agreement with the classification and program/placement recommendations, but wanted the CSE to review a neuropsychological evaluation, requested by the student’s physicians and social worker, before approving the student's program for 2004-05 (Dist. Exs. 1, 2).
Over a six-day period in June 2004, a psychological evaluation was conducted at New York Presbyterian Hospital (Parent Ex. DDDD). The evaluation report summary noted that testing of the student indicated overall intelligence in the average range and functioning on tests of academic achievement generally commensurate with measured cognitive skills (Parent Ex. DDDD at p. 17). Relative weaknesses were identified in fine motor skills, processing speed and sustained attention (id.). Reading comprehension skills were reported to be at the low end of the average range, compared to average skills in other academic areas (id.). The evaluation report indicated that the student's difficulties with writing constituted a Disorder of Written Expression (Parent Ex. DDDD at p. 18). Additional difficulties were noted in memory functioning, reportedly due to attention difficulties (Parent Ex. DDDD at p. 17). Personality testing indicated depressed mood, negative self-esteem, and poor coping skills, leading to anger, frustration and oppositional behaviors (id.). The evaluation report indicated that although the student has the intellectual capacity for academic progress, his inattentive behaviors, fluctuations in mood, and negative emotions might be slowing his cognitive processing and impeding his academic performance (id.). The student also exhibited symptoms consistent with ADHD, Major Depressive Disorder, and consideration of Bipolar Disorder (id.). The attention deficits were reported to appear to be independent of, though possibly exacerbated by, the student's symptoms of depression (id.). Several educational and clinical recommendations were provided by the evaluator, many of them consistent with the program recommendations already included by the CSE in the student's 2004-05 IEP (Parent Ex. DDDD at pp. 29-30; Dist. Ex. 13 at pp. 1-3).
On September 30, 2004, the CSE reconvened for a program review at petitioner's request to discuss the June 2004 neuropsychological evaluation (Dist Exs. 9, 45). The CSE recommended a one-hour session between the student and the independent evaluator who administered the neuropsychological evaluation (Dist. Ex. 9 at pp. 1-2; Parent Ex. DDDD). The purpose of this recommendation was for the evaluator to explain her findings to the student (Dist. Ex. 9 at pp. 1-2). The IEP developed on September 30, 2004 noted that the BOCES program was to conduct an FBA and develop a BIP that reflected the information in current evaluations, including the neuropsychological evaluation conducted in June 2004 (Dist. Ex. 9 at p. 2). In November 2004, the FBA was conducted and a BIP was developed to "drive the psychotherapeutic interventions" for the student in conjunction with the social-emotional objectives on the IEP (Dist. Exs. 14, 9 at pp. 9-10).
An assistive technology evaluation was conducted on December 16, 2004 to address the student's difficulties with handwriting (Dist. Ex. 36). The resulting evaluation report recommended that the student have access to classroom computers and specialized software for writing assignments (Dist. Ex. 36 at p. 2). The CSE reconvened on January 25, 2005 to review the assistive technology evaluation, the delivery of OT services, and goals and objectives for the student's 2004-05 IEP (Dist. Ex. 78). The IEP and OT attendance records indicated that the student had refused to participate in direct OT instruction because he felt negatively stigmatized (Dist. Exs. 27, 78). The CSE recommended that the mode of delivery of OT change from one individual and one group session per week to one 30-minute session per week that would be a combination of push-in services and consultation with the classroom teacher (Dist. Ex. 78). In order to address the student's identified graphomotor weaknesses, which contributed to his frustration with the writing process and his ability to fully express his ideas in writing, as well as to address his reported difficulties with note-taking in class, the CSE recommended that the student have access to a laptop computer for school purposes and that it be equipped with the software recommended in the assistive technology evaluation report (Dist. Ex. 78 at p. 2). The OT and the assistive technology specialist informed the CSE that they would work collaboratively with the student's mother to develop appropriate goals and objectives to address this area of need (id.). Both OT and academic goals and objectives were to be reviewed at a follow-up CSE meeting (id.). The CSE recommended that the student remain in the TSP at Farragut/Hastings (Dist. Ex. 78 at p. 3).
By letter dated October 11, 2004 petitioner (IHO Ex. 1) requested an impartial hearing to address issues including sufficiency of services, supports, and accommodations; the current IEP and progress report plan; past IEP requirements which were not met; and related and compensatory services; transportation and safety.
At a prehearing conference, the substantive issues in dispute were identified (IHO Ex. 2). Petitioner asserted that the student should have been classified as a student with ED and LD, that no valid IEP existed, that the school bus transportation time was too long and the bus was operated unsafely, and that the student was entitled to compensatory services because he was denied a FAPE for the period from 1999-2004. Respondent asserted that the doctrine of laches applied to petitioner’s claim for compensatory and related services and, in a letter dated October 29, 2004, asserted that petitioner’s claims for compensatory services prior to September 2004 should be barred by the doctrine of laches and the one year timeline for requesting a due process hearing applied by the State Review Officer (IHO Ex. 3).
The impartial hearing took place over the course of 14 days from November 23, 2004 through March 30, 2005.
In a thorough and well reasoned decision dated May 4, 2005, the impartial hearing officer denied petitioner’s request for dual classification, denied as moot petitioner’s request for an order regarding transportation, and denied petitioner’s request for compensatory education and services. The impartial hearing officer ordered the following: 1) the CSE to develop new assistive technology goals and objectives, 2) that the student’s IEP continue to provide for the use of a laptop computer and to provide a tape recorder as assistive technology devices, 3) that petitioner continue to be offered the opportunity to participate in all aspects of the IEP development, and that the student’s IEP include information on the student’s disorder of written expression, memory and processing problems, and other learning disability issues noted in his evaluations, 4) the matter be remanded to the CSE for the preparation of a new IEP for the 2004-05 school year with the IEP to additionally include appropriate OT and assistive technology goals and that the new IEP be prepared and implemented no later than May 23, 2005, 5) the matter also be remanded to the CSE for the purpose of preparing a new IEP for the 2005-06 school year which shall include appropriate updated goals and objectives, and 5) that in preparing the 2005-06 IEP, the CSE consider placing the student in a more restrictive setting, such as a private school or day treatment center or, if the petitioner requests, a residential setting, with the IEP completed by May 31, 2005. The impartial hearing officer also directed the CSE to consider whether the student would benefit from a 1:1 paraprofessional or teaching assistant to implement his BIP and help him to control his emotional and behavior issues at school. The CSE was also directed to ensure that petitioner would be sent meaningful quarterly progress reports in a timely fashion.
On appeal, petitioner requests that respondent be directed to comply with the impartial hearing officer’s findings and requests that under the direction of an independent evaluator, respondent be directed to perform a full review of the student’s curriculum to identify deficits within his curriculum from the 1998-99 school year when her son was in first grade to his current seventh grade school year. Petitioner also requests that respondent reclassify her son and provide compensatory services, appropriate IEPs and transportation.
Respondent claims in its cross-appeal that the impartial hearing officer erred in finding that the district failed to provide the student a free appropriate public education (FAPE) for the 2003-04 and 2004-05 school years.1
I will first address the determination of the impartial hearing officer that consideration of the school years prior to 2003-04 is barred by application of the doctrine of laches. Petitioner contends that her son is entitled to compensatory education and services based on respondent’s alleged failure to provide appropriate services from 1999 to date. In an interim decision, the impartial hearing officer found that petitioner’s claims for the 1999-2000 and 2000-01 school years were barred by laches. After permitting petitioner to present evidence regarding the 2001-02 and 2002-03 school years, the impartial hearing officer found that petitioner did not establish good cause for not timely challenging the CSE’s recommendations for those years. She concluded that petitioner did not establish mitigating factors that would render the application of the doctrine of laches to be inequitable in this case. The impartial hearing officer noted that petitioner admitted she had received “hundreds of notices” regarding her due process rights since 2000 and had consulted advocates and attorneys as to how to proceed in 2002 and 2003. Petitioner admitted that she disagreed with her son’s educational program and could have asked for an impartial hearing over the years, but did not request an impartial hearing until October 11, 2004.
I agree with the impartial hearing officer’s determination that petitioners' claims relative to the 1999-2000, 2000-01, 2001-02 and 2002-03 school year are time-barred. Moreover, I find that claims relating to the 2003-04 school year, prior to October 11, 2003 are time-barred as well. Under the circumstances here, I find the claims prior to October 11, 2003 barred by application of either laches or by application of a one year statute of limitation time period (see Application of a Child with a Disability, Appeal No. 02-119).2,3
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 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 IEP (20 U.S.C. § 1401[D]; 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 ; 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 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 ). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet 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 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the program itself, 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 (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational 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 (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]).
At the impartial hearing, petitioner asserted that her son was denied a FAPE because the IEPs prepared by the CSE did not comply with content requirements and that they were developed without considering the recommendations of the student’s neuropsychological evaluation (IHO Decision, p. 7).
I will first address the 2003-04 school year. The impartial hearing officer determined that the June 24, 2003 and April 22, 2004 IEPs (Dist. Exs. 15, 12) were "based on sufficient evaluations" and "results of those evaluations were accurately set forth in the IEPs" (IHO Decision. p. 18). However, she did determine that the student was denied a FAPE. Her finding that a FAPE was denied in 2003-04 was based upon respondent’s failure to provide OT, to prepare a new FBA and BIP, and to establish that the student was suitably grouped based upon his academic needs (id.). I concur with these findings and the conclusion that the student was denied a FAPE. However, I disagree with the impartial hearing officer’s conclusion that the goal and objectives for the 2003-04 school year were adequate.
The 2003-04 IEPs were developed on June 24, 2003 and April 22, 2004 (Dist. Exs. 15, 12). Both of these IEPs provide descriptions of the student's current academic functioning by including recent standardized test scores as well as narrative descriptions of the student's relative strengths and needs. The IEPs describe the student's reading skills as "adequate," and his writing skills as "fair" and note that the student's classroom performance is not reflective of standardized test scores. The IEPs state that the student exhibits low frustration tolerance and a tendency to become overwhelmed, which affects his ability to complete classroom and homework assignments. The IEP descriptions of the student's physical needs note his sensory motor skills deficits and relative weakness in ability to comprehend auditory input in noisy situations. Socially, the IEPs notes the student's diagnoses of Major Depressive Disorder and ADHD and describe his need for skills training in anger management and social skills as well as his difficulties with self-management, which require a supportive, structured environment. Management needs reflect the student's low frustration tolerance and need for a behaviorally based program that would address his emotional difficulties throughout the day.
I find that the portion of the 2003-04 IEPs which describe the student's present performance levels and current needs accurately reflects evaluation reports and other descriptions of the student and provides sufficient information about his emotional difficulties and his learning deficits with which to plan an appropriate program. I also find that the level and scope of services recommended by the CSE for the 2003-04 school year were appropriate to address those needs. However, upon review of the goals and objectives, which appear on both the June 24, 2003 and April 22, 2004 IEPs, I find that some of the goals and objectives developed by the CSE are inadequate.
I will first address the academic goals and objectives on the 2003-04 IEPs. The two IEPs contain goals and objectives for reading, written language and math. The reading goal for decoding is not reflective of the information in the IEP describing the student's present performance, which does not include any evidence of deficits in decoding. The IEP contains reference to a discrepancy between test scores and performance but the objectives do not offer adequate information to clarify the level of progress anticipated. Under the circumstances, both reading and writing goals overly rely upon recorded observations for determining progress toward mastery of objectives. The math goal relies upon standardized tests to measure progress, which does not address the identified discrepancies between the student's standardized test scores and his classroom performance.
Additional classroom goals address study skills and attending skills. As with the reading, writing and math goals, the objectives for these goals are too vague to be used effectively. Objectives addressing the student's need to attend to tasks do not identify anticipated length of time on task. An objective for following teacher directions does not indicate the level of complexity of the directions the student is expected to comprehend and follow and does not take into account the student's ADHD or his identified deficits in auditory processing and memory. Other objectives indicate that the student will "attend and filter out auditory and visual distractions," "demonstrate the ability to refocus," and "identify and manage stress factors that affect his ability to attend." These objectives reflect a lack of understanding of the severity of the student's emotional difficulties and are both overly broad and unrealistic given the severity of the student's needs. Objectives for the IEP's transition goal are also too broadly stated to give direction to service providers, stating that the student will demonstrate an "ability to adjust" to classroom and schedule changes without defining how this will be demonstrated and what the student will be expected to do to master this objective.
The record indicates that the student's most significant needs are in the social/emotional domain. The 2003-04 IEP goals and objectives addressing the student's significant behavioral deficits reflect the same lack of specificity evident in other objectives and are especially inadequate. Objectives indicate that by the end of the school year the student will be able to "develop and implement strategies to deal with frustration" and "reduce irrational thinking and cognitive distortions" without describing behaviors which would be used to determine progress or circumstances under which these broad objectives would be measured. Social skills objectives refer to interacting in a "socially acceptable manner" as well as to accepting limits, adapting to change, demonstrating respect for others and accepting responsibility for behaviors. None of these objectives describe behaviors which can be observed and measured, but instead merely restate the student's behavioral concerns. The lack of specificity in objectives, particularly those which address the student's significant emotional concerns, results in an IEP which fails to offer direction to service providers and also fails to provide a means by which progress can be measured.
I will now address the 2004-05 school year. The impartial hearing officer declined to find that the student was denied a FAPE for the 2004-05 school year. She based this on a finding that although respondent was not providing OT at the beginning of the year, the student began refusing to go to OT at some time early in that year and the parties agreed that direct OT would be inappropriate. The impartial hearing officer went on to find that the neuropsychological evaluation was duly considered by the CSE and that the goals and objectives were appropriate at the time they were written but she remanded the matter to the CSE for further development of the goals and objectives. She found that the primary problem was the IEP's failure to address assistive technology needs. I agree with the findings of the impartial hearing officer relative to the IEPs but for her determination pertaining to the adequacy of the goals and objectives.
There are three IEPs in the record for the 2004-05 school year (Dist. Exs. 9, 13, 78). As in the 2003-04 IEP, the IEPs prepared for the 2004-05 school year adequately reflect recent evaluations, provide a succinct and thorough description of the student's present performance levels and areas of need, and recommend appropriate levels of service. However, the goals and objectives on the September 30, 2004 and January 25, 2005 IEPs are identical to the goals and objectives for the previous school year and are neither measurable nor appropriate.4 But for my differing conclusion pertaining to the goals and objectives, I concur with the impartial hearing officer’s analysis of the 2004-05 program.
I further concur with the impartial hearing officer’s determination regarding petitioner’s request for compensatory education and services for her son. 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]). The record does not reflect evidence of a gross violation of the IDEA. The impartial hearing officer found that an award of compensatory OT services was not warranted because although the student did not receive all of his direct OT, direct OT is no longer appropriate to meet his needs and he had refused to go to the OT. The impartial hearing officer further found that the other services requested by petitioner were not special education services and could not be awarded. She found the record inadequate to determine what services would be appropriate to order for the student.
While 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 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 a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). Here, the student was denied a FAPE during the 2003-04 school year. The CSE, when it next convenes, should consider whether the denial of a FAPE resulted in a deprivation of services that can be remedied by additional services. If the CSE so determines, it should recommend the appropriate additional services.
I have considered petitioner’s and respondent’s remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
1 The impartial hearing officer found deficiencies in the 2004-05 program but did not find that petitioner’s son was denied a FAPE for the 2004-05 school year.
2 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. Petitioner initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply. Under section 615(b)(6)(B) of the IDEIA (20 U.S.C. § 1415[b][B]), a party must present a complaint within two years of the date the parent or public agency knew or should have known of the alleged violation. However, at the time petitioner requested her due process hearing, a one year time period applied (Application of the Bd. of Educ., Appeal No. 02-119; see, e.g., Application of a Child with a Disability, Appeal No. 05-029; Application of the Bd. of Educ., Appeal No. 04-104; Application of a Child Suspected of Having a Disability, Appeal No. 04-090; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 04-075; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 03-098; Application of a Child Suspected of Having a Disability, Appeal No. 03-068; Application of the Bd. of Educ., Appeal No. 03-062).
3 Generally, a claim is barred by laches if: (1) a party fails to assert a right in a timely manner, and (2) the lapse of time causes prejudice to the adverse party (see Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 [2d Cir. 1996]; Phillips v. Bd. of Educ., 949 F. Supp. 1108, 1112 [S.D.N.Y. 1997]). I see no reason to disturb the finding of the impartial hearing officer that petitioner has not established good cause for the delay in requesting an impartial hearing and has not established a mitigating factor to render the application of the doctrine of laches inapplicable in this case (Application of a Child with a Disability, Appeal No. 05-029)
4 It appears from the record that the June 16, 2004 IEP was not implemented. As indicated previously, the goals and objectives set forth in the superseding January 25, 2005 IEP are identical to those of prior IEPs and are neither measurable nor adequate.