Application of THE NEW YORK CITY DEPARTMENT OF EDUCATION, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hon. Michael A. Cardozo, Corporation Counsel and Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel
Advocates for Children of New York, Inc., attorney for respondent, Christopher J. Tan, Esq., of counsel
Petitioner, the New York City Department of Education, appeals from that portion of a decision of an impartial hearing officer which determined that petitioner failed to provide an appropriate educational program to respondent's daughter for the 2004-05 and 2005-06 school years and ordered petitioner to, inter alia, pay the cost of 410 hours of tutoring services for the student at the Huntington Learning Center as a form of compensatory education. The appeal must be sustained in part.
At the time of respondent's request for a due process hearing on November 3, 2005, her daughter was sixteen years old (IHO Ex. A; Tr. p. 292) and registered as a general education student at petitioner's Humanities High School (HHS) (Tr. pp. 37, 46), although she was not attending classes at any school (Tr. pp. 46, 232, 324). The student was classified during the 2003-04 school year by another school district as a student with an emotional disturbance (see Parent Ex. A). Respondent is the student's custodial parent, her primary language is Spanish; the student is fluent in English and Spanish (see Dist. Exs. 24, 33; Parent Ex. R at p. 1; Tr. pp. 66, 88).
Respondent's daughter attended regular education classes in petitioner's middle school (see Parent Ex. B; Dist. Ex. 27; Tr. pp. 370, 318). In the summer of 2002 (prior to entering seventh grade) the student was referred to petitioner's Committee on Special Education (CSE) for evaluation, but parental consent was not obtained, so the referral was withdrawn (see Dist. Ex. 14). During the 2002-03 school year, the student was passing all of her academic subjects with an average grade of 73 (see Dist. Ex. 27). Subsequent to an arrest, in July 2003 the Office of Children and Family Services (OCFS) placed respondent's daughter in a residential treatment center and soon after enrolled her in the Greenburgh-North Castle Unified School District at Greenburgh's Yonkers school (Greenburgh-Yonkers) (see Parent Exs. A, B, Dist. Ex. 2; see Tr. pp. 424-25, 428). Greenburgh-Yonkers is a nonpublic special education school that is on the Commissioner of Education's list of State-approved schools with which districts may contract for the provision of special education services (Tr. pp. 28, 418; see 8 NYCRR 200.1[d], 200.7). It is a special education school for students with disabilities (Tr. pp. 418, 426). Respondent's daughter was referred to Greenburgh-Yonkers' CSE, and in December 2003 a psychological evaluation was conducted (see Parent Ex. B; Tr. p. 430). On the Wechsler Scale of Intelligence for Children – III (WISC-III) the student yielded a Verbal IQ score of 83, a Performance IQ score of 89 and a Full Scale IQ score of 84, indicating cognitive abilities in the Low Average range (Parent Ex. B at pp. 1-2). Behaviorally, the evaluator noted that the student was alert and attentive, but her anxiety affected her test performance (id. at p. 1), and he opined she may act out anger through anti-social behavior (id. at pp. 2-3). The student was reportedly diagnosed with depression for which medication was prescribed (see Parent Ex. R). She was placed in eighth grade at Greenburgh-Yonkers for the 2003-04 school year in a small special education class consisting of eight students and two teachers, with counseling services (Tr. pp. 293, 425-26, 432-33; see Parent Ex. A). The student's guidance counselor at Greenburgh-Yonkers reported that the student appeared to enjoy school and did well there (Tr. p. 444). The student completed her eighth grade year with the following final grades: Math: 69, English: 70, Science: 83, and History: 78 (Parent Ex. O). Her individualized education program (IEP) for her ninth grade year reflected that the CSE had classified her as a student with an emotional disturbance and recommended continuing her placement at Greenburgh-Yonkers for the 2004-05 school year in a 12:1+1 special education class with counseling services for 45 minutes three times per week (Parent Ex. A). Early in ninth grade, the student stated she became "stressed out" at the residential treatment center she was living in (Tr. p. 294), and as a result she was discharged from the treatment center and from Greenburgh-Yonkers on October 31, 2004 (see Parent Exs. E, F; Tr. pp. 294-97).
Respondent's daughter returned to petitioner's district in November 2004 and provided petitioner's enrollment counselor with the papers that Greenburgh-Yonkers had given her (Tr. pp. 369, 298, 300, 380; see Parent Ex. F), which included her school transcript, but not her IEP (Tr. pp. 319, 325-26, 371-72, 380). The enrollment counselor was aware that the student was coming from Greenburgh-Yonkers (Tr. pp. 302, 370-71, 380, 398), and believed at the time that Greenburgh-Yonkers included both regular and special education programs (Tr. p. 388). She checked petitioner's computer files on respondent's daughter (Tr. p. 370), and found no indication that the student had ever been referred to the CSE or had received special education services (Tr. pp. 385-86). She stated that she did not know at the time of respondent's daughter's return to the district that the student had been classified and had been receiving special education services at Greenburgh-Yonkers (Tr. p. 383, see also Tr. p. 407), so she treated respondent's daughter as a regular education student (Tr. p. 392). The enrollment counselor contacted the school counselor at Greenburgh-Yonkers to ascertain the student's current grade level for proper placement (Tr. pp. 370-71, 380, 382; Parent Ex. D-1); the counselor at Greenburgh-Yonkers verified by letter that the student had completed eighth grade and was currently in ninth grade, and forwarded the student's recent New York State standardized test scores in English and Math (Dist. Exs. 19, 20; Parent Ex. D).
During fall 2004, petitioner's enrollment counselor attempted to place respondent's daughter in regular education classes at three different high schools; the student went to intake interviews, but ultimately none of the schools accepted her (Dist. Exs. 15, 16, 18; Parent Exs. G, H, I, J, K; Tr. pp. 301-308, 320, 373, 403-07). In January, she was accepted into a transitional educational program referred to as "The Door" which provided academic instruction for students transitioning between placements; the program did not provide special education services (Dist. Ex. 11; Tr. pp. 137-139). Respondent's daughter attended The Door for about a month (Tr. pp. 137-139, 144, 308, 321). In February 2005, petitioner placed respondent's daughter in HHS as a general education student in a classroom of approximately 30 students with no special education or related services (Dist. Ex. 32; Tr. pp. 150, 270, 311, 328). There was no indication on the disposition letter to HHS that the student had been classified or was in need of special education services (Dist. Ex. 32; Tr. pp. 275-76, 531). Respondent's daughter felt overwhelmed and discouraged at HHS, and was excessively absent from HHS during spring 2005 (Tr. pp. 115, 272, 310-12, 323, 472; see Dist. Exs. 5, 23, 30). Attendance records reveal that out of a total of 94 class days from February 2005 through June 2005 the student was absent 52 days and late 14 days (Dist. Ex. 5).
The student remained registered at HHS at the start of the 2005-06 school year, as repeating ninth grade, but she rarely attended classes and soon stopped attending school altogether (Tr. pp. 46-47, 232, 271, 274, 292, 324, 354, 472; see Dist. Exs. 6, 7, 21, 28, 30).1 In October 2005, the student was offered a placement in regular education classes at a small alternative public high school, but the student rejected the placement because she felt the classes were too large (Tr. pp. 252-54, 257-59, 261-62, 312, 320-21; see Dist. Exs. 8, 9, 10). On November 3, 2005 respondent, through her attorney, requested an impartial hearing based on petitioner's alleged failure to provide her daughter with a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA) (see IHO Ex. 1). Respondent requested relief in the form of payment for a private psycho-educational evaluation and compensatory educational services (id.). Petitioner's staff, its CSE members, and its attorney stated that respondent's request for a hearing was the first indication they had that respondent's daughter had been classified as a student with a disability and had a prior IEP from Greenburgh-Yonkers (Tr. pp. 12, 474, 227; see also Dist. Ex. 21 at p. 1; Tr. pp. 227, 275-76, 383, 407, 458, 474).
The hearing began on November 21, 2005 and was held over the course of nine nonconsecutive days, concluding on March 27, 2006. On the first day of the hearing, the impartial hearing officer granted respondent's request for an independent educational evaluation (IEE) for the student at the district's expense (Tr. p. 22). On November 22, 2005, the impartial hearing officer issued her first pendency order, determining that the student's pendency placement for the duration of the proceedings was in a 12:1+1 special education class with individual counseling once per week, as specified in the Greenburgh-Yonkers IEP (see IHO Decision, at p. 4; Tr. p. 27). After a telephone conference seeking clarification of the order as to whether the student must be placed at Greenburgh-Yonkers, on December 19, 2005 the impartial hearing officer issued her second pendency order clarifying the first order and directing that petitioner place the student in "an appropriate 12:1+1 class, in a community school, with related services of counseling, by January 3, 2006" (IHO Decision at p. 5). Petitioner immediately thereafter, by letter dated December 21, 2005, offered the student a placement in a 12:1+1 special education class at HHS for the duration of the hearing (Dist. Ex. 26; Tr. pp. 231, 237). At about the same time, by letter dated January 3, 2006, Greenburgh-Yonkers notified respondent that her daughter had been accepted for an immediate placement in Greenburgh-Yonker's day program (Parent Ex. N; see also Tr. pp. 422-23). The student did not attend the 12:1+1 class petitioner offered at HHS (Tr. pp. 330, 339; see Tr. p. 245). On January 20, 2006, respondent's attorney notified petitioner by letter that respondent was rejecting petitioner's 12:1+1 placement at HHS as inappropriate and requesting that the student immediately be placed at Greenburgh-Yonkers instead (Parent Ex. P); petitioner declined to place the student at Greenburgh-Yonkers (Parent Ex. Q).
During this same time period, the psychoeducational evaluation was completed by a private neuropsychologist from a list of the district's approved providers on or about December 23, 2005 (Parent Ex. R; Tr. pp. 22, 193, 214, 233). The neuropsychologist noted that the student had "suffered severe trauma from age 7 to 12 the aftermath of which she is still dealing with at present" (Parent Ex. R at p. 1). Administration of the Stanford-Binet Intelligence Scales, Fifth Edition (SB-V) - Full Scale Battery, respondent's daughter yielded a Verbal IQ score of 77 (6th percentile; Borderline Delayed range), Nonverbal IQ score of 73 (4th percentile; Borderline Delayed range), and a Full Scale IQ score of 74 (4th percentile; Borderline Delayed range) (Parent Ex. R at p. 2). Her scores on the fluid reasoning, vocabulary and working memory subtests were in the Low Average range, and her scores on the quantitative reasoning and visual spatial subtests were in the Borderline Delayed range (Parent Ex. R at pp. 2-4). Working memory, or the ability to acquire and store diverse information in short-term memory and present it in a new format, was identified as a relative strength for the student, indicating to the evaluator that the student likely learns by rote and would benefit from pictorial aids (Parent Ex. R at pp. 3, 4). Visual-spatial processing, or the ability to see patterns, relationships and spatial orientations, was identified as the student's weakest area, which the evaluator noted was consistent with the student's lack of attention to detail (id.). On the Woodcock-Johnson Tests of Achievement-III (W-J III), the student's scores when compared to others at her age level were between the low end of the Average range and the Deficient range (Parent Ex. R at p. 4). She showed relative strength in her ability to read single words (Low Average range) and relative weakness on the passage comprehension subtest (Borderline range) (id.). Math knowledge and calculation scores were in the Deficient range (Parent Ex. R at p. 5). Due to the student's weakness in visual-spatial processing, the student had difficulties performing mathematical operations accurately, but her ability improved when she had to apply operations in a relevant context (Parent Ex. R at pp. 5). On both the SB-V and the W-J III, the neuropsychologist noted that the student's impulsivity and lack of attention to detail negatively affected her scores (Parent Ex. R at p. 5). On the Thematic Apperception Test (TAT), the student's stories were reported as "exceptionally short" and "did not reach any logical conclusions" (Parent Ex. R at p. 5). Stories reportedly conveyed feelings of sadness and confusion and significant uncertainty about the future (id.). On the Conner's Parents Rating Scale - Revised - Long Form, Spanish Edition, the ratings yielded scores in the "at risk" level on the oppositional and inattentive scales, and approaching the at risk level on the social problems scale (id.). The neuropsychologist noted that the student had been diagnosed with depression and had continued sadness from past trauma; she had been prescribed medication, but had discontinued taking it because of side effects (Parent Ex. R at pp. 1-2, 5-6). She opined that the student likely also met the criteria for a diagnosis of attention deficit hyperactivity disorder (ADHD), but, more importantly had other significant concerns, including anxiety, impulsivity, and low self-esteem, all of which were negatively affecting her performance (Parent Ex. R at pp. 2, 5-6).
The neuropsychologist recommended that the student be placed in a small school in a large room with few students to compensate for her difficulties with concentration and feelings of confinement, and to assure she receives sufficient attention so that she can make up for the instruction she has lost and to assist her in approaching grade level instruction (Parent Ex. R at p. 6; Tr. p. 199). The neuropsychologist also recommended the student receive help in school concentrating on organizational strategies and the use of manipulatives and pictorial aids (Parent Ex. R at p. 6). Since the student's evaluation revealed that she learns by rote and has relatively adequate strength in her working memory, the neuropsychologist recommended repeated drills in all subject areas (id.). Teaching of self-monitoring skills was also recommended, as well as extra time for tests (id.). The neuropsychologist concluded by recommending a full psychiatric examination to further explore the effects of the student's depression, ADHD and anxiety (id.). Counseling was recommended more frequently than twice per month (id.).
On February 24, 2006, the student was evaluated by the Huntington Learning Center, where a battery of tests were administered to the student (Parent Exs. S, T; Tr. pp. 160-65). Huntington Learning Center is a private educational institution that evaluates students and provides them with supplemental tutoring to strengthen their basic skills (Tr. pp. 157-60). On the Slosson Visual Motor Performance Test, the student scored a 36 (passing score is 84) (Parent Ex. S at p. 1). The evaluator noted that the student's weakness in visual tracking hindered her ability to do math calculations (Parent Ex. S at p. 1; Tr. pp. 161, 164). Although the student was repeating ninth grade, on the Slosson Oral Reading Test, the student's sight-word recognition mastery level score was at a third grade level (Parent Ex. S at p. 1; Tr. p. 162). On the Burns & Roe Informal Reading Inventory, although the student showed few problems with reading fluency, she demonstrated a weakness in reading comprehension, revealing a 40 percent rate of comprehension for fourth grade materials, 30 percent for fifth grade materials, and only 20 percent comprehension for sixth grade materials (id.). On the California Achievement Test the student's silent reading comprehension skills scores were at a seventh grade level (Parent Ex. T at p. 2; Tr. p. 163). The student's writing sample was described as "very poor quality for a sixteen-year-old student," with problems of language mechanics as well as structure and content (Parent Ex. S at p. 2; Tr. p. 163). On a math placement exam, the student was assessed on advanced addition (grade 2 level skills) through decimal division (grade 7 level skills) and was unable to show conceptual or computational mastery in any area (Parent Ex. S at p. 2; Tr. p. 164). The student was described by the evaluator as polite and cooperative, and aware of her academic shortcomings (Parent Ex. S at p. 1).
As the hearing proceeded, petitioner continued to attempt to obtain parental consent to conduct the remaining evaluations of the student (including a required social history) for its ongoing CSE review (Tr. pp. 232, 234, 237, 238, 355, 358-59; Dist. Exs. 29, 30, 31). Respondent did not respond to the letters, later stating she believed her attorney was handling such matters (Tr. p. 340). The district's social worker finally completed a social history of the student on March 9, 2006 (Dist. Ex. 33). The social worker noted that respondent described her daughter as having a history of not wanting to go to school (Dist. Ex. 33 at p. 1). The student described herself to the social worker as depressed and sad, and related that traumatic experiences from her past were negatively affecting her academic performance (Dist. Ex. 33 at p. 2). The student reported she did not like to go to school, felt "lost", did not want to go to public school, and would prefer to either return to Greenburgh-Yonkers or study for her GED (id.). The evaluator noted that a medical exam had been requested as part of the student's evaluation, and that the parent had made an appointment for the student with a physician (Dist. Ex. 33 at p. 3).
As the hearing drew to a close, on March 17, 2006 the impartial hearing officer sua sponte issued a third pendency order reversing herself and finding that the appropriate pendency placement for the student was in a small, nonpublic school, and ordered that the 12:1+1 class at Greenburgh-Yonkers be the student's pendency placement (see IHO Decision at p. 5).2 Petitioner appealed that order to a State Review Officer (id.).
The impartial hearing concluded on March 27, 2006, and on April 17, 2006 the impartial hearing officer rendered a final decision on the merits of respondent's underlying claims. The impartial hearing officer determined that petitioner had failed to timely evaluate and place respondent's daughter, and ordered the district to issue a "Nickerson letter"3 to respondent, which would allow respondent to place her daughter in a state-approved school at the district's expense (IHO Decision at pp. 17, 19). In addition, the impartial hearing officer ordered petitioner's CSE to immediately convene and develop an IEP placing the student in small classes in a small non-public school such as Greenburgh-Yonkers, with counseling services (IHO Decision at pp. 18-19). Lastly, the hearing officer found that the student had been denied an appropriate placement and services from the time the student returned to the district in November 2004 until December 21, 2005, when petitioner offered the student a placement in a 12:1+1 class at HHS with counseling services (IHO Decision at p. 18).4 For the denial of a FAPE, and in consideration of the current delays in respondent's daughter's academic skills levels, the impartial hearing officer ordered the district to provide eight hours per week of remedial tutoring services to respondent's daughter for period of one year (up to a total of 410 hours) to be provided at Huntington Learning Center, as requested by the parent, including transportation, evaluation, and registration costs (IHO Decision at p. 19). Payment was contingent upon submission of proof of the student's attendance (id.).5
Subsequent to the impartial hearing officer's decision, petitioner withdrew its appeal of the third pendency order (see Pet. ¶ 49). On April 28, 2006, the CSE met to develop an IEP to be implemented beginning May 15, 2006 and continuing through April 28, 2007 (see Pet. Ex. 1).6 In the IEP, the CSE, deferring to the Central Based Support Team (CBST), recommended that the student be placed in 12:1+1 special education classes at Greenburgh-Yonkers with related services consisting of 45 minutes per week of both group and individual counseling (see Pet. Ex. 1 at pp. 1, 7, 9; see also Pet. ¶¶ 36, 37; Ans. ¶¶ 36, 131). For present levels of performance, the IEP indicated that the IEE had shown that the student's cognitive abilities were in the borderline range, working memory was in the low average range, and her visual-spatial processing was also weak (Pet. Ex. 1 at p. 3). Her reading decoding skills were reported as average, but her reading comprehension was borderline (id.). The following grade equivalent subtest scores from the WJ-III were also included on the IEP: letter word identification, GE 7.5; passage comprehension, GE 4.0; math calculation, GE 2.9; math applied problems, GE 4.8 (id.). The CSE recommended program modifications, which included preferential seating, assistance with organizational skills, use of manipulatives, use of pictorial aids, and a larger personal space (id.). Testing accommodations included extended time and breaks (Pet. Ex. 1 at p. 9). The IEP also noted the student's history of attendance problems, and feelings of being overwhelmed at school, as well as feelings of anxiety, depression, anger, and attentional problems, in support of its recommendation of small classes with counseling services (Pet. Ex. 1 at p. 4). The IEP included goals and objectives for the student in behavior, language arts, and math (Pet. Ex. 1 at p. 6). The record is unclear, but appears to indicate that the student was subsequently enrolled at Greenburgh-Yonkers under the newly developed IEP (see Pet. ¶¶ 37, 56, 86; Ans. ¶¶ 56, 131, 143).
Petitioner appeals only from that portion of the impartial hearing officer's decision which ordered the district to provide an additional 410 hours of compensatory education for the student at the Huntington Learning Center. Both parties agree that the underlying question of the student's placement is now moot (Pet. ¶ 56; Ans. ¶ 56).
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 - 1487)7 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 includes 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]; 34 C.F.R. § 300.347). To meet this goal, the "child find" provisions of the IDEA place an affirmative duty on state and local educational agencies to have “policies and procedures to ensure that” “[a]ll children with disabilities. . . who are in need of special education and related services, are identified, located, and evaluated and [that] a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services” (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.125[a]; see Handberry v. Thompson, 436 F.3d 52, 64-65 [2d Cir. 2006][educational agency has affirmative obligation to screen eligible inmates for disabilities which would require special education services]). The purpose behind the child find provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected (Handberry, 436 F.3d at 65). In order to accomplish this, school districts are required to have an effective screening mechanism (id.; Application of a Child with a Disability, Appeal No. 04-054), and procedures in place that will enable them to find such children (Application of a Child with a Disability, Appeal No. 05-131; Application of a Child with a Disability, Appeal No. 03-008; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41).
In addition, the United States Department of Education's interpretive commentary to the federal regulations implementing the IDEA specifically addresses the district's obligation in situations concerning in-state transfer students who have been classified for special education services by another agency or district:
If a child with a disability moves from one public agency to another in the same State, the state and its public agencies have an ongoing responsibility to ensure that FAPE is made available to that child [see generally 34 C.F.R. § 300.600; 34 C.F.R. § 300.342]. This means that if a child moves to another public agency the new agency is responsible for ensuring that the child has available special education and related services in conformity with an IEP…The new public agency may meet this responsibility by either adopting the IEP the former public agency developed for the child or by developing a new IEP for the child (The new public agency is strongly encouraged to continue implementing the IEP developed by the former public agency, if appropriate…)…If the parents and the new public agency are unable to agree on an interim IEP and placement, the new pubic agency must implement the old IEP to the extent possible until a new IEP is developed and implemented."
(Appendix A, Notice of Interpretation, 34 C.F.R. Part 300, Question 17 ; see also Letter to Campbell, 213 IDELR 403 [OSEP 1989]; Letter to Reynolds, 213 IDELR 238 [OSERS 1989]; Letter to Reiser, 211 IDELR 403 [OSEP 1986]; see, e.g., Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 02-095; Application of a Child with a Disability, Appeal No. 02-008).8
In the instant case, petitioner's enrollment counselor testified, and the representative in charge of the student's records at Greenburgh-Yonkers verified, that at the time of petitioner's daughter's return to the district, the district did not have an organized central system set up for transferring educational records of students returning from OCFS placements (Tr. pp. 381-84, 396-97; see also Tr. p. 442). The enrollment counselor testified that sometime shortly afterwards, the district initiated a new system whereby now when a student re-enters the district from an OCFS placement, a complete packet of the student's educational records is sent (usually via fax) by OCFS to the enrollment center prior to the student's arrival which contains everything from the student's IEP, to birth certificates and grades (Tr. pp. 381-84).
The practice petitioner had in place to admit transfer students at the time respondent's daughter returned to the district failed to identify respondent's daughter as a student receiving special education services. Petitioner's assistant principal of special education testified that he was not aware that there was any district policy on obtaining special education records on a student transferring from a prior school placement where the placement was made by another state agency (Tr. pp. 468-69). The enrollment counselor stated that she was the person who worked with readmitting court-involved students into the district and that she had 14-15 years of extensive experience in that area (Tr. pp. 368, 377, 386, 395, 393; see also Tr. p. 408) and "knew what to ask for" (Tr. p. 383). She also stated that she was the person in the Region who was designated to request a student's records from the OCFS (Tr. p. 381). She stated that she was familiar with Greenburgh-Yonkers and described it as "a placement for students, who as I said, were have---well, having trouble in terms of dealing with either things at home, or got into trouble" and gave examples of students being placed there by the Administration for Children's Services (ACS), by a court order, or by a PINS petition (Tr. p. 387). She testified that she knew that Greenburgh-Yonkers provided special education services to some students (Tr. p. 388). In reference to why petitioner's daughter was placed there, the counselor stated she knew that if she had been placed at Greenburgh-Yonkers that "there had to be some type of problem there that she had been sent away" (Tr. p. 398). The counselor also stated that it was her job to request from the sending school any missing or additional educational records needed to in order to place the student (Tr. p. 389). She did contact Greenburgh-Yonkers to request confirmation of the student's grade level (Tr. pp. 370-71, 380), but did not inquire about or request any special education records (Tr. pp. 371, 383). She testified that the district's practice at the time was to check the district's computer files for information on students returning from OCFS placements as part of the screening process, and if a "Y" appeared, it indicated the student might have received special education services in the past (Tr. p. 385). She testified that she checked the district's computer files on respondent's daughter (Tr. p. 370) and nothing indicated that the student had been previously referred to the district in 2002 or that she had been classified and had received special education services at any time (Tr. pp. 385-86).
The director of pupil personnel services at Greenburgh-Yonkers testified that, contrary to the enrollment counselor's impression, all of the students at Greenburgh-Yonkers are classified special education students with IEPs and all of the students receive counseling services (Tr. p. 426). He testified that there are a few students at the group home where petitioner's daughter resided who are not classified as special education students, but that those students are not placed at Greenburgh-Yonkers and are instead placed in other neighboring high schools (Tr. p. 429). The school counselor at Greenburgh-Yonkers testified that had petitioner requested the student's special education records, he would have sent them (Tr. pp. 449-50, 454).
Petitioner failed to identify respondent's daughter as a student eligible for special education services from the time the student returned from her OCFS placement to the district in November 2004 up until the time of the hearing request, when petitioner first learned of the student's prior classification and in December 2005 offered to implement her old IEP in an interim placement in a 12:1+1 classroom with counseling services consistent with her last IEP. In doing so, petitioner failed in its affirmative child find obligation for respondent's daughter. Petitioner's attempt to defer responsibility for its failure to locate and identify respondent's daughter as a student with a disability is not persuasive, as petitioner's duty under child find is an affirmative one (see Handberry, 452 F.3d at 65; Cudjoe v. Indp. Sch. Dist. No. 12, 297 F.3d 1058, 1066 [10th Cir. 2002]; Wolfe v. Taconic Hills, 167 F.Supp. 2d 530, 535 [N.D.N.Y. 2001]; Application of the Bd. of Educ., Appeal No. 05-027; Application of a Child with a Disability, Appeal No. 04-054).
For the foregoing reasons, I find petitioner failed in its child find responsibilities resulting in a failure to offer a FAPE to respondent's daughter for the period of November 2004 through December 2005.
To remedy the denial of FAPE, respondent requests an award of "compensatory services" in the form of 410 hours of tutoring services for the student at Huntington Learning Center to be provided at the district's expense.
Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-041; 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).
At the time of this appeal, the student is seventeen years old and the deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of a Child with a Disability, Appeal No. 05-013; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094). There was testimony in the record from the Director of the Huntington Learning Center, who stated that respondent's daughter had visited the school and had been evaluated and given a variety of standardized tests (Tr. pp. 160-67; see Parent Exs. S, T). The director testified that, based on her professional experience, the student's academic delays from her grade level as reflected in Huntington's evaluation, the IEE and other sources, could be remedied by the provision of an additional 410 hours of individual tutoring (Tr. pp. 165-66, 168). She explained how the 410 hours was calculated based upon respondent's daughter's individual strengths and weaknesses, and the projected number of hours required to bring her skills up to grade level (Tr. pp. 166, 181, 184-85). Areas of focus would include reading comprehension, vocabulary, writing, math, attention to detail, and organizational and study skills (Tr. p. 166). The student's social worker and the neuropsychologist who completed the IEE on the student testified that they agreed that the extra tutoring recommended would be needed to help the student make up for the instruction she had lost and to assist her in approaching grade level instruction (Tr. pp. 119, 200). The neuropsychologist estimated that the student would need no less than 500 hours of tutoring in reading and additional hours of instruction in math (Tr. pp. 202-03). I find that there is no reason in the record why the district cannot itself provide the necessary additional special education instruction and additional counseling services to the student to compensate for the denial of services in the past. Therefore, I will instruct the CSE to reconvene to determine the proper additional amount of special education and counseling services needed by this student to compensate her for the prior deprivation. In so doing, the CSE is instructed to consider the recommendations for additional services made by the independent neuropsychologist in her report and testimony.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent that it ordered petitioner to pay for the costs of 410 hours of tutoring services for the student at the Huntington Learning Center, plus the registration and transportation costs associated therewith; and
IT IS FURTHER ORDERED that within 14 days of the date of this decision, the CSE will reconvene to determine the appropriate amount of additional special education and counseling services needed by respondent's daughter to compensate her for the loss of services from November 2004 through December 2005. In so doing, the CSE is directed to take into consideration the recommendations for additional services made by the neuropsychologist who conducted the student's IEE.
1 For the 2005-06 school year, as of hearing date March 13, 2006 the attendance teacher testified that the student had been at HHS 22 days and absent 85 days (Tr. p. 475).
2 At the time of the hearing, Greenburgh-Yonkers had a total enrollment of approximately 152 students (Tr. p. 418), all of which were classified as special education students (Tr. p. 426); HHS' total student population in 2004 was 2,151 students, out of which approximately 158 were classified as special education students (see Parent Ex. M at p. 2).
3 A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; see Application of a Child with a Disability, Appeal No. 05-045; Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
4 The impartial hearing officer also found that the student was denied an appropriate placement for an additional one-month period from the date of the third pendency order on March 17, 2006 ordering that the student be placed at Greenburgh-Yonkers, until the date of the final decision on April 17, 2006 (IHO Decision at pp. 18-19). During this month, the record reveals that the district was still offering the student a placement in a 12:1+1 class at HHS consistent with her last IEP, was working on developing a new IEP, and had appealed the third pendency order directing placement at Greenburgh-Yonkers. Under the circumstances, I find the district was offering a FAPE to the student during this one-month period consistent with the applicable provisions for transfer students under the IDEA (see Appendix A, Notice of Interpretation, 34 C.F.R. Part 300, Question 17 ; see generally, 34 C.F.R. § 300.600; 34 C.F.R. § 300.342; see also Letter to Campbell, 213 IDELR 403 [OSEP 1989]; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 02-008).
5 The impartial hearing officer also ordered the district to conduct an immediate psychiatric evaluation of the student as recommended in the IEE; however, apparently unbeknownst to the impartial hearing officer, the district had already completed a psychiatric evaluation on the student on March 29, 2006, while the impartial hearing officer was still drafting her decision (see Pet. ¶ 50; Ans. ¶ 50).
6 Petitioner submits two exhibits with its petition and asks that they be admitted into the record as additional evidence (see Pet. Exs. I, II). The first exhibit is a copy of the student's IEP developed on April 28, 2006 (Pet. Ex. I); the second exhibit is a letter from petitioner's attorney to respondent's attorney, dated March 30, 2006, offering to place the student under the new IEP in a 12:1+1 special education class at Leadership in Public Service High School (M425) (Pet. Ex. II). I note that subsequent to these exhibits, the parties mutually agreed to place the student at Greenburgh-Yonkers (see Pet. ¶ ¶ 37, 56, 86; Ans. ¶¶ 56, 131, 143; Pet. Ex. 1). Respondent does not object to the submission of the two exhibits. Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-107; Application of a Child with a Disability, Appeal No. 04-074). In the instant case, neither exhibit was available at the time of the hearing, and there is no objection to the proffered evidence. The resultant April 2006 IEP is relevant in rendering a decision as to whether or not and when petitioner complied with its child find obligations to evaluate and classify the student, and is therefore relevant in determining a compensatory education award, hence I will accept the April 28, 2006 IEP into the record; however, since the letter-offer to place the student at M425 was rejected and the student has now been placed at Greenburgh-Yonkers, the letter is not necessary for me to render a decision and I decline to accept it into evidence.
7 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since most of the relevant underlying events at issue in this appeal occurred prior to the July 1, 2005 effective date, citations contained in this decision are to the statute as it existed prior to the 2004 amendments, unless otherwise specified (Application of a Child with a Disability, Appeal No. 06-018).
8 The new amendments to the IDEA, effective July 1, 2005, have adopted and codified this approach to student transfers within the same State (see 20 U.S.C. § 1414[d][C][i][I]). Of particular note here, the new amendments also added a provision requiring both the sending school and the receiving school to take "reasonable steps" to assure the student's records, including his or her IEP, are promptly transmitted to the new school (20 U.S.C. § 1414[d][C][ii]).