Application of a CHILD WITH A DISABILITY, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Advocates for Children of New York, Inc., attorney for petitioner, Meredith Madon, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied his request for appointment of a surrogate parent and for one year of compensatory education. The appeal must be sustained in part.
At the time of the impartial hearing, held October 27, 2005, petitioner was 18 years old (see Tr. p. 10) and attending the Life Skills School (Tr. p. 55) where he attended classes conducted in English and was assisted by a one-to-one bilingual paraprofessional (Tr. p. 59). The Life Skills School is a non-public day school that has been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. p. 63; see 8 NYCRR 200.7). Formal assessment of petitioner conducted in November 2003 revealed that he was performing at the kindergarten to first grade level in reading and math (Joint Ex. L at p. 7), and cognitive testing in Spanish revealed that he was functioning in the "deficient" range of cognitive ability (Joint Ex. L at p. 3). A November 2003 bilingual speech-language evaluation concluded that petitioner presented with a severe language delay that appeared to be unrelated to his limited knowledge of English (Joint Ex. M at p. 3). Petitioner's classification was changed from a student with a learning disability (LD) to a student with mental retardation on August 24, 2005 (Tr. p. 63). Petitioner's eligibility for special education services and classification are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
Petitioner's early history has been documented through reports by petitioner of his birth in Honduras and subsequent separation from his family (Tr. p. 77). He reported briefly attending school in Honduras when he was very young (Tr. p. 79). When he was 12 years old, petitioner "walked" to Mexico, where he was homeless, and in November or December 2002, petitioner made his way to Texas, where he hoped he would locate his birth mother (Joint Exs. M at p. 1, N at p. 2; Tr. pp. 23, 78). An unidentified person in Texas provided petitioner with a plane ticket to New York (Tr. p. 79), and in the fall of 2002 he was placed in foster care through St. Vincent Services in New York (Tr. p. 23; Joint Ex. L at p. 2).
On March 17, 2003, petitioner was enrolled in public school at respondent's Curtis High School (Curtis) in Staten Island, New York (Tr. p. 23). The social worker from St. Vincent's who served as petitioner's case manager brought petitioner to Curtis for enrollment and, on that date, met with the Curtis social worker responsible for Educationally Related Support Services (ERSS) (Tr. pp. 23, 26). The case manager was advised of the availability of services for petitioner under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l]) (Tr. p. 34). The ERSS social worker assisted the case manager in completing a section 504 application for petitioner to receive the services of a Spanish-speaking paraprofessional (Tr. pp. 28-29, 34). Petitioner was placed in general education classes where he was assisted by an "alternate placement paraprofessional" per his section 504 Plan, which also provided for test accommodations of extended time and testing in a separate location (Tr. pp. 27-29). The record reveals that petitioner also received counseling "more than once a week" at Curtis from the ERSS social worker who reportedly was able to speak Spanish (Tr. pp. 29-30), but who also reportedly indicated that petitioner's skills in English allowed him to communicate with her in English during counseling (Tr. p. 39).
At the time of his enrollment at Curtis in March 2003, petitioner's case manager requested in writing that petitioner be evaluated for eligibility for special education services (Joint Ex. Q). Petitioner was not formally evaluated at this time, but his teachers reported that petitioner's academic skills were below grade level (Tr. p. 33). Teacher progress reports completed on April 9, 2003, approximately three weeks after petitioner was enrolled at Curtis, indicated that petitioner was cooperative and able to complete work with the assistance of his assigned paraprofessional (Joint Ex. T at p. 5), but was experiencing frustration because of his limited English (Joint Ex. T at pp. 4, 5). On May 16, 2003 (Joint Ex. P at p. 3), a bilingual educational evaluation revealed that although petitioner was in a ninth grade class at Curtis and he was able to follow a few simple directives in English, his primary language in both conversation and academic areas was Spanish (Joint Ex. P at p. 5). When tested in Spanish, petitioner exhibited very limited decoding skills with his word identification limited to first grade level words (id.). When tested in English he did not exhibit any decoding skills (id.).
Petitioner remained at Curtis for the 2003-04 school year, but began the school year with no bilingual paraprofessional to assist him (Joint Ex. O). On October 22, 2003, petitioner's case manager made a second written request for evaluation, this time specifying an evaluation by a Committee on Special Education (id.). She also requested that he again be assigned a bilingual paraprofessional (id.). On November 11, 2003, when petitioner was 15 years and 9 months old, a bilingual speech-language evaluation was conducted (Joint Ex. M). The evaluator reported that petitioner presented with a severe language delay which appeared unrelated to bilingualism and was commonly associated with a language impairment (Joint Ex. M at p. 3). The evaluator recommended speech-language therapy in a small group to improve language skills (id.).
A psychoeducational evaluation conducted on November 19, 2003 (Joint Ex. L at p. 2) included administration of the Wechsler Intelligence Scale for Children – III (WISC-III) in Spanish, which yielded scores in the "deficient" range (Joint Ex. L at p. 3). Administration of the Woodcock-McGrew-Werder Mini-Battery of Achievement yielded grade equivalent scores from kindergarten through first grade and age equivalents between less than 2-0 and 6-7 (id.). The evaluator noted that during his pre-test interview, petitioner reported depression and suicidal ideation and indicated that he wished he could return to Honduras (Joint Ex. L at pp. 2-3). The evaluator recommended that petitioner be classified "Mildly Mentally Retarded" and further recommended that "[a]ll instruction and services should be bilingual Spanish" (Joint Ex. L at p. 4).
By letter dated December 4, 2003, petitioner's case manager again requested that petitioner receive the services of a paraprofessional (Joint Ex. K). On December 22, 2003, respondent's Committee on Special Education (CSE) convened and developed an individualized education program (IEP) (Joint Ex. I) which recommended that petitioner receive special education services in a twelve-month 15:1 (Joint Ex. I at p. 1) special class (Joint Ex. I at p. 2) with related services of speech-language therapy and counseling to be provided in Spanish (Joint Ex. I at pp. 2, 17), as well as the service of a Spanish-speaking "alternate placement paraprofessional" (Joint Ex. I at p. 17). Some of the goals on petitioner's December 22, 2003 IEP indicated that his performance would be in his "native language" (Joint Ex. I at pp. 6-9). The CSE also recommended transition services for petitioner, including instructional activities to assist petitioner in "mastering 1st grade academic levels," community integration opportunities through "participation in agency-based programs," promotion of post high school plans by "applying to VESID" (Joint Ex. I at p. 18), and promotion of independent learning skills by "learning bus routes to and from school and work" (Joint Ex. I at p. 19).
At the December 22, 2003 CSE meeting, the CSE also developed an interim service plan (Joint Exs. J, W) to be implemented "pending an IEP placement" (Joint Exs. J at p. 2 and W at p. 4), in which petitioner would be placed in ESL (English as a Second Language) (Tr. p. 37) classes three periods per day and receive the services of a "bilingual alternate placement paraprofessional" (Joint Exs. J at p. 2, W at p. 4). Petitioner's December 22, 2003 IEP does not contain information about petitioner's classification, but the interim service plan indicates that the CSE determined that petitioner should be classified as a student with LD (Joint Exs. J at p. 1, W at pp. 1, 2).
After the development of the IEP (Joint Ex. I) and interim service plan (Joint Exs. J, W) on December 22, 2003, petitioner was placed in a 15:1 self-contained special class at Curtis for a portion of the school day and he continued to attend ESL classes for three periods per day (Tr. pp. 27, 30-31). He was not placed in a non-diploma program at that time because Curtis did not have such a program (Tr. p. 30) and he did not receive instruction or related services in Spanish because these services were not available at Curtis (Tr. pp. 30-31), as Curtis did not have a bilingual program (Tr. p. 33). The assistant principal at Curtis indicated that, after the CSE developed the interim service plan on December 22, 2003, petitioner was again provided with a one-to-one bilingual paraprofessional at Curtis (Tr. pp. 30-31, 46).
In February 2004, petitioner was placed in a "Basic Two" program at respondent's Susan Wagner High School (Susan Wagner) (Tr. pp. 31-32). The Basic Two program is described in the record as a program for "non diploma bound" students who have "lower reading levels," which offered a curriculum emphasizing life skills instruction (id.). The record indicates that the program at Susan Wagner did not have services in Spanish, as required by petitioner's IEP, and that services were provided to petitioner in English (Tr. pp. 37-38).
A subcommittee of the CSE convened on November 22, 2004 and recommended that petitioner continue to be classified as a student with LD, be placed in a full-time 15:1 special education classroom and receive related services of speech and counseling in Spanish (Joint Ex. E at pp. 1, 9). The subcommittee also recommended that petitioner receive transition services in which he would participate in a prevocational program and in a work-study experience, and would meet with "appropriate school personnel to formulate a career plan" (Joint Ex. E at p. 10). Susan Wagner did not have a bilingual program (Tr. pp. 38, 46). The assistant principal of special education instructional support services at Susan Wagner indicated that respondent did not take action to identify a placement for petitioner that would provide instruction in Spanish because there were no such services available on Staten Island, and noted that the services of a bilingual paraprofessional were recommended as an alternative to providing instruction in Spanish (Tr. pp. 48-50).
The CSE convened again on June 22, 2005, developed an interim service plan for petitioner which indicated that petitioner "requires his related services to be given in English" and noted that "Spanish providers are unavailable" (Joint Ex. X at p. 1) and recommended that petitioner be provided a bilingual alternate placement paraprofessional "on an interim basis" due to the unavailability of services in Spanish "in his current program" (Joint Ex. X at p. 2). The interim service plan also noted that petitioner was to receive related services in English "as indicated per mediation agreement" (id.). The ERSS social worker at Susan Wagner opined that petitioner spoke English well enough to receive services in English (Tr. p. 43), but the assistant principal of special educational instructional support services at Susan Wagner indicated that no evaluations had been conducted to determine petitioner's proficiency in English (Tr. p. 39).
Petitioner's June 27, 2005 report card indicated that he had completed eleventh grade at Susan Wagner with a final grade point average of 64% (Joint Ex. C). The assistant principal of special educational instructional support services at Susan Wagner indicated that petitioner's progress was assessed using the report card and progress reports (Tr. p. 50), but progress reports from Susan Wagner are not included in the record.
Petitioner did not accept the CSE's recommended program. By letter dated August 11, 2005, petitioner requested an impartial hearing seeking to amend his IEP and have his classification changed from a student with LD to a student with mental retardation; receive a "Nickerson" letter, or alternatively a recommendation, for placement in the state-approved, non-public Life Skills School; transportation to and from the Life Skills School; and one year of compensatory education beyond his 21st birthday (Joint Ex. B at p. 2) due to respondent's alleged failure to provide him with a free appropriate public education (FAPE) for the 2003-04 and 2004-05 school years (Joint Ex. B at p. 1). The CSE reconvened on August 24, 2005 and developed an IEP, which further narrowed the issues related to this proceeding (Tr. p. 63). The CSE changed petitioner's classification from a student with LD to a student with mental retardation and recommended that he attend the Life Skills School in a 12:1+4 special education class with related services of speech-language therapy twice per week for 30 minutes in a small group and individual counseling once per week for 30 minutes as well as have a full-time, one-to-one Spanish speaking alternative placement paraprofessional (Joint Exs. U, V; Tr. p. 63). Petitioner began attending The Life Skills School in September 2005 (Joint Ex. A at p. 2). By letter dated October 17, 2005, petitioner amended his impartial hearing request by seeking only the one year of compensatory education beyond his 21st birthday and additionally seeking appointment of his social worker as a surrogate parent (id.). In addition, petitioner alleged that he was denied a FAPE for the 2002-03 school year (Joint Ex. A at p. 1), as well as the previously alleged denial of FAPE for the 2003-04 and 2004-05 school years (see Joint Ex. B at p. 1).
The impartial hearing was conducted on October 27, 2005. Petitioner acknowledged at the impartial hearing that the only issues that existed at that time involved the requests for appointment of a surrogate parent and for one year of compensatory education beyond his 21st birthday (Tr. pp. 9-10). In requesting the appointment of a surrogate parent, petitioner's counsel noted that the student's circumstances had changed since the last hearing request due to the fact that the student had moved out of his "foster parent's house" and that "he no longer [had] a parent" (Tr. p. 10). At the hearing, the impartial hearing officer determined that petitioner was over 18 years of age and that there was no adjudication by a court of law that petitioner was not competent (Tr. pp 9-10). She concluded that he was therefore not entitled to the appointment of a surrogate parent and she denied petitioner's motion that one be appointed (Tr. pp. 10-11; IHO Decision, p. 8). On November 17, 2005, the impartial hearing officer rendered her decision finding that petitioner was over the age of 18, and as such was legally an adult, and that there had not been a finding by a court of competent jurisdiction determining that petitioner was not capable of acting on his own behalf (IHO Decision, p. 7). The impartial hearing officer further found that the student had progressed while attending respondent's programs, respondent provided petitioner with educational benefits, and it would be unfair to conclude that it was respondent's responsibility to compensate petitioner for "a life of deprivation" even when "[t]here is no doubt that [petitioner] would greatly benefit from prolonged instruction" (IHO Decision, pp. 7-8). The impartial hearing officer also found that it was premature and speculative to conclude that petitioner would continue to need additional services after completing three more years at the Life Skills School (IHO Decision, p. 8). Therefore, the impartial hearing officer also denied petitioner's request for one year of compensatory education beyond his 21st birthday (IHO Decision, pp. 7, 8).
On appeal, petitioner contends that a surrogate parent should have been appointed. Petitioner also contends that respondent failed in its "child find" obligations in that it did not identify, evaluate or provide special education services to petitioner after he enrolled in school during the 2002-03 school year and that the impartial hearing officer erred in finding that there was no gross violation of the Individuals With Disabilities Education Act (IDEA) during the 2002-03 school year. Petitioner further contends that the impartial hearing officer erred in determining that he was provided with a FAPE for the 2003-04 school year and for the 2004-05 school year.
For relief, petitioner seeks one year of compensatory education beyond his 21st birthday, or in the alternative an order that the statute of limitations be tolled until he turns 21 years of age.
A purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). A FAPE includes 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2
A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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 ). While school districts are required to comply with all IDEA procedures, 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]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). 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 F.3d 138, 151 [2d Cir. 2002] [quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998])). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
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, Notice of Interpretation, Question 1).
Petitioner contends that the impartial hearing officer failed to properly assess respondent's duty to appoint a surrogate parent under the circumstances presented herein. The IDEA was enacted to assure that all children with disabilities have available to them a FAPE and to assure that the rights of children with disabilities and their parents or guardians are protected (20 U.S.C. § 1400[d]). The IDEA requires that a FAPE be available for all children with disabilities between the ages of three and 21 (20 U.S.C. § 1412[a][A]; Application of a Child with a Disability, Appeal No. 04-030). The IDEA also sets forth procedural safeguards with respect to the provision of a free and appropriate public education which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (20 U.S.C. § 1415[b]). These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 ).
The IDEA includes surrogate parents within the definition of a parent (see 20 U.S.C. § 1401[D]; 34 C.F.R. 300.20[a]). The Regulations of the Commissioner of Education define a parent as "a birth or adoptive parent, a guardian, a person in parental relationship to the child as defined in Education Law section 3212…or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the student is a ward of the State." (8 NYCRR 200.1[ii]). Section 200.5(n) of the current State regulations regarding appointment of a surrogate parent provide, in pertinent part, that:
[t]he board of education or other appropriate body shall select a surrogate parent from a list of individuals who are eligible and willing to serve as surrogate parents in order to ensure that the rights of a student are protected if:
(i) no parent, as defined in section 200.1(ii) of this Part, can be identified;
(ii) the school district, after reasonable efforts, cannot discover the whereabouts of a parent, or the student is an unaccompanied homeless youth, as such term is defined in section 100.2(x)(1)(vi) of this Title; or
(iii) the student is a ward of the State and does not have a parent as defined in section 200.1(ii) of this Part or the rights of the parent to make educational decisions on behalf of the student have been subrogated by a judge in accordance with State law.
(8 NYCRR 200.5[n]).
I disagree with the impartial hearing officer's conclusion that the student is not entitled to a surrogate parent under IDEA. The record establishes that although the student in the present case is 18 years old and that no parent can be identified and/or the school district, after reasonable efforts, has been unable to discover the whereabouts of a parent for the student. The IDEA provides that although parents retain the right to receive all notices sent by the school district, each state may provide for a transfer of all other parental rights to the student, upon the student reaching the age of majority under state law (20 U.S.C. § 1415[m]; 34 C.F.R. 300.517). However, New York State does not provide for such a transfer of rights to the student at the age of majority. Therefore this student is still eligible for assignment of a surrogate parent and the board of education has a duty to assign a surrogate parent. In the present case, in light of the evidence that no parent has been able to be identified or located, and there are no other individuals that meet the definition of parent, as defined by regulation, I will direct the board of education to take appropriate steps to ensure that a surrogate parent is assigned to this student in accordance with 8 NYCRR 200.5(n).
At issue are petitioner's claims for part of the 2002-03 school year and all of the 2003-04 and 2004-05 school years. Petitioner contends that the impartial hearing officer erred in finding that there was not a gross violation of the IDEA for the 2002-03 school year in which respondent failed its "child find" obligations in that it did not identify or evaluate petitioner and did not provide special education services during the 2002-03 school year.
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]; Application of a Child with a Disability, Appeal No. 04-054). A student suspected of having a disability shall be referred in writing to the chairperson of the district's CSE or to the building administrator of the school which the student attends for an individual evaluation and determination of eligibility for special education programs and services (8 NYCRR 200.4[a]; Application of a Child with a Disability, Appeal No. 03-050). A referral may be made by: 1) a student's parent or person in parental relationship; 2) a professional staff member of the school district in which the student resides, or the public or private school the student legally attends; 3) a licensed physician; 4) a judicial officer; 5) the commissioner or designee of a public agency with responsibility for welfare, health or education of children; or 6) for purposes of referring one's self, a student who is over 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district (8 NYCRR 200.4[a]). The regulation does not prescribe the form that a referral by a parent must take, but it does require that it be in writing (Application of a Child Suspected of Having a Disability, Appeal No. 99-69).
The Regulations of the Commissioner of Education require that each board of education establish a plan and policies for implementing school wide approaches and pre-referral interventions in order to remediate a student’s performance prior to referral for special education (8 NYCRR 200.2[b]; see also N.Y. Educ. Law § 4401-a , ).
Petitioner contends that respondent failed in its "child find" obligations in that it did not identify or evaluate the student and did not provide special education services during the 2002-03 school year. When petitioner was enrolled at Curtis in March 2003, he was immediately placed in ESL classes, which were taught in English, and a 504 Plan was developed which provided petitioner with a 1:1 bilingual paraprofessional (Tr. pp. 27-29, 32). Petitioner also reportedly began to receive counseling services when enrolled at Curtis, and the record suggests that counseling services were maintained during his tenure at Curtis (Tr. pp. 29-30).
Respondent's initial placement of petitioner in ESL in March 2003 was appropriate, as this placement reportedly allowed teachers to assess petitioner's performance and determine whether his academic deficits were solely related to his inability to speak English or if a disability was also involved (Tr. pp. 28, 33). In the absence of evaluative information identifying a disability (Tr. p. 32), is not clear from the record how a 504 Plan was developed on the day petitioner was enrolled at Curtis (see Tr. pp. 28-29), however a plan was developed. Initial evaluative information in the form of teacher reports written three weeks after petitioner enrolled at Curtis (Joint Ex. T) indicated that petitioner was encountering academic difficulties (Joint Ex. T at pp. 1, 4, 5), and supported the provision of a bilingual paraprofessional as recommended by the 504 Plan (Joint Ex. T at pp. 4, 5). A bilingual education evaluation conducted on May 16, 2003 (Joint Ex. P) further established petitioner's ability to speak, comprehend and read English, noting that his decoding and word recognition skills in Spanish were at the first grade level but that he had no decoding skills in English (Joint Ex. P at p. 5). This report also indicated that petitioner had some ability to comprehend spoken English at the time the evaluation was conducted, as his performance on the assessment indicated that he could comprehend English at the fifth grade level (id.).
It is not clear from the record whether counseling services at Curtis were provided in Spanish or in English. The principal at Curtis suggested in testimony that petitioner was receiving counseling from a bilingual counselor (Tr. pp. 29-30). The Susan Wagner ERSS social worker who was familiar with petitioner due to her interaction with him when he enrolled at Curtis testified that petitioner spoke English sufficiently to be able to "communicate with the counselor" (Tr. p. 39).
Under the circumstance surrounding the second half of the 2002-03 school year, I find that any deficiencies in respondent's implementation of its child find responsibilities did not rise to the level of a denial of FAPE.3
Petitioner also contends that the impartial hearing officer erred in determining that he was provided with a FAPE for the 2003-04 school year. Although the record suggests that respondent's initial efforts to identify petitioner's needs and provide him with services may have been appropriate, the record reveals that follow-up on these initial services in 2003-04 was insufficient and resulted in denial of FAPE for petitioner. Petitioner remained at Curtis for the 2003-04 school year and continued in ESL classes taught in English, but did not have a bilingual paraprofessional to assist him (Joint Ex. O). The record does not reflect that any additional assessments were conducted by respondent to determine petitioner's present skill levels in English at the commencement of the 2003-04 school year, or that any additional evaluations were conducted to determine whether petitioner's ability to learn might be impeded by a disability.
Petitioner's case manager's initial request for assessment, submitted on March 17, 2003 (Joint Ex. Q), requested that petitioner be evaluated to determine his eligibility for special education services, and her request reportedly resulted in development of a 504 Plan for the remainder of the 2002-03 school year (Tr. pp. 28-29), but the record reflects that the 504 Plan was developed without conducting an evaluation (id.). The 504 Plan appeared to meet petitioner's immediate needs related to his inability to speak English in the ESL classes in which he was initially placed in March 2003, but the 504 Plan was not implemented at the beginning of the 2003-04 school year, nor did respondent evaluate petitioner at the beginning of 2003-04 to determine if the 504 Plan was needed or if petitioner required special education services. No action was taken by respondent to provide either section 504 accommodations or special education services in 2003-04 until a subsequent request made by petitioner's case manager by letter dated October 22, 2003 (Joint Ex. O). Upon receipt of this request by respondent, evaluations were conducted (Joint Exs. L, M). By letter dated December 4, 2003, petitioner's case manager again requested he receive the services of a bilingual paraprofessional (Joint Ex. K). The CSE convened on December 22, 2003 for its initial review of petitioner (Joint Exs. I, J), two months after respondent's receipt of a second request for evaluation from petitioner's case manager. At the December 22, 2003 meeting, the CSE recommended petitioner be classified as a student with LD (Joint Ex. J at p. 1), despite recommendations in a November 2003 psychoeducational evaluation report which indicated that petitioner's WISC-III scores were in the deficient range when the WISC-III was administered in Spanish (Joint Ex. L at p. 3) and that petitioner should be considered for classification as "Mildly Mentally Retarded" (Joint Ex. L at p. 4).
At the December 22, 2003 initial review, the CSE recommended that petitioner receive instruction in a full-time 15:1 special education classroom (Joint Ex. I at p. 1) and receive instruction (Joint Ex. I at p. 15) and related services in Spanish (Joint Ex. I at p. 17). However, when the December 22, 2003 IEP was developed, the CSE was aware that the bilingual program it had recommended for petitioner was not available (Tr. p. 33) and, on that same date, developed an interim service plan (Joint Ex. J) to provide petitioner with a bilingual paraprofessional (Tr. pp. 33) pending location of a more appropriate program (Joint Ex. J at p. 2). The December 22, 2003 IEP suggested that petitioner's primary need was to receive instruction in Spanish, and failed to acknowledge the severity of his academic delays in both English and Spanish (see Joint Exs. L, M). From September 2003 to February 2004, petitioner received instruction in English at Curtis and was unable to benefit from the instruction provided because he did not adequately understand instruction in English (Tr. pp. 77, 85). Petitioner transferred to Susan Wagner in February 2004 (Tr. p. 31). Limited information in the record regarding petitioner's transfer to the Basic Two program at Susan Wagner in February 2004 suggests that the curriculum at Susan Wagner was more suited to petitioner's then current cognitive ability (Tr. pp. 27, 30-31); however, he continued to receive instruction in English at Susan Wagner (Tr. p. 46), and was not provided with a bilingual paraprofessional in the Basic Two program for the remainder of the 2003-04 school year (Tr. p. 37). While there is some suggestion in the record that petitioner's skills in the English language were, at that time, sufficient to allow him to benefit from services in English (Tr. pp. 37, 43), the record is not clear regarding petitioner's proficiency in English during the 2003-04 school year, as respondent did not demonstrate that it re-evaluated petitioner's ability to speak or understand English at any time in 2003-04. Upon review of the December 22, 2003 IEP, I find that the IEP developed for petitioner on December 22, 2003 was not reasonably calculated to enable petitioner to receive educational benefits, and I find that respondent did not implement the IEP appropriately, thus respondent failed to offer petitioner a FAPE for the 2003-04 school year.
Petitioner also contends that the impartial hearing officer erred in determining that he was provided with a FAPE for the 2004-05 school year. Petitioner remained in the Basic Two program at Susan Wagner for the 2004-05 school year; he received the services of an alternate placement paraprofessional, but continued to receive instruction in English (Tr. pp. 38, 46). When the CSE convened on November 22, 2004, it again recommended that the student be classified as a student with LD and that he receive special education services (Joint Ex. E at p. 1), but this time included the services of a paraprofessional on petitioner's IEP (Joint Ex. E at p. 7; compare Joint Ex. I). The CSE's November 22, 2004 recommendations were again made without the benefit of an updated assessment of petitioner's progress in learning to speak English. Additionally, although the assistant principal of special education instructional support services at Susan Wagner indicated in testimony that petitioner's progress was assessed using report cards and progress reports (Tr. p. 50), there is no evaluative information in the record upon which to determine if the November 22, 2004 IEP accurately described petitioner's present level of performance at the time the IEP was developed. Therefore, I find that petitioner was denied a FAPE in the 2004-05 school year because his November 22, 2004 IEP was developed without the benefit of adequate evaluative information regarding petitioner's special education needs and his then current ability to speak and understand English, and because respondent placed petitioner in classes taught in English throughout the 2004-05 school year without making a determination regarding whether the classes taught in English were of benefit, or whether the services of a paraprofessional were sufficient to overcome the disadvantage to petitioner of receiving instruction in a language in which he was not proficient.
Petitioner asserts that he is entitled to compensatory education for one year beyond his 21st birthday as a remedy for respondent's failure to provide a FAPE during part of the 2002-03 and all of the 2003-04 and 2004-05 school years. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of the Bd. of Educ., Appeal No. 02-047). There is nothing in the record to show that petitioner is no longer eligible to receive instruction. At the time of the impartial hearing, petitioner was 18 years old, attending an approved special education school, and had not yet received a high school diploma. 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. 05-096; Application of a Child with a Disability, Appeal No. 04-054; 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).
Based upon my review of the record, I find that petitioner was denied a FAPE for the 2003-04 and 2004-05 school years.3 Given that the evaluative information in the record, more specifically, the CSE's psychoeducational assessment on November 19, 2003 recommending that petitioner be provided with "[a]ll instruction and services [in] bilingual Spanish" (Joint Ex. L at p. 4) indicates that petitioner should have been provided with bilingual instruction to receive a FAPE up until such time respondent reevaluated petitioner to determine if petitioner still needed to be provided with bilingual instruction to receive educational benefits, or at the very least, to determine that a bilingual paraprofessional could be provided to petitioner because his efficiency in English had improved such that he no longer required bilingual instruction to be provided a FAPE. The CSE was aware that petitioner needed bilingual instruction based on its November 19, 2003 psychoeducational assessment. Petitioner was placed at Curtis, which does not have a bilingual program (Tr. p. 33) and then placed at Susan Wagner, which also does not have a bilingual program (Tr. pp. 38, 46). The CSE offered an alternative, utilizing a bilingual paraprofessional (see Joint Exs. J, E at p. 7); however, this was done without an evaluation to determine whether the student was sufficiently proficient in English to receive instruction in English and utilize a bilingual paraprofessional to receive educational benefit.
I agree with respondent that petitioner "is entitled to and has the opportunity to receive additional services presently and for the next three years " (Dist. Memo. of Law, p. 4). Thus, I will direct respondent to provide petitioner with additional services to allow him to make up work that he missed (see Bd. of Educ. v. Muñoz, 16 A.D.3d 1142 [4th Dep't 2005]; Application of a Child with a Disability, Appeal No. 05-055; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-030; Application of a Child with a Disability, Appeal No. 00-006). However, the impartial hearing record does not clearly indicate what additional services are needed to remedy the deprivation of services caused by the denial of a FAPE to petitioner during the 2003-04 and 2004-05 school years. Accordingly, I cannot determine from the record what additional services may be warranted in this case. Therefore, I will direct the CSE to conduct a comprehensive re-evaluation of petitioner's current educational needs, including a bilingual educational evaluation to determine petitioner's proficiency in English and in Spanish, and to reconvene to consider what additional services are necessary to make up for the denial of FAPE. Once it is determined what provision of additional services is appropriate, those services should be provided (Application of the Bd. of Educ., Appeal No. 04-016).
In light of this determination, it is not necessary that I address the remaining issues raised by the parties.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent it denied petitioner's request for the appointment of a surrogate parent and to the extent that it found that petitioner was offered a FAPE for the 2003-04 and 2004-05 schools years; and
IT IS FURTHER ORDERED that respondent shall take appropriate steps to appoint a surrogate parent for petitioner, pursuant to 8 NYCRR 200.5(n); and
IT IS FURTHER ORDERED that within 45 days from the date of this decision, unless the parties otherwise agree, the CSE shall conduct a comprehensive re-evaluation of petitioner's educational needs, including a bilingual educational evaluation, and shall convene to formulate an appropriate IEP consistent with petitioner's evaluations and with the terms of this decision; and
IT IS FURTHER ORDERED that within 45 from the date of this decision, unless the parties otherwise agree, the CSE shall convene and determine what additional services are necessary to make up for the denial of a FAPE resulting from the failure to provide appropriate services to petitioner and ensure that the services are provided.
1 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647 ). Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the provisions of the IDEA 2004 do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
3 This determination would remain if during the administrative hearing the burden had been placed on the petitioner, the party challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005).