Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hon. Alisa A. Lukasiewicz, Corporation Counsel, attorney for petitioner, Denise M. Malican, Esq., of counsel
Law Office of Andrew K. Cuddy, attorney for respondent, Jason H. Sterne, Esq., of counsel
Petitioner, the Board of Education of the City School District of the City of Buffalo, appeals from the portion of a decision of an impartial hearing officer which ordered petitioner to provide one hour of compensatory education. The appeal must be sustained in part.
At the time of the impartial hearing, respondent's son was 16 years old and receiving home instruction (Parent Ex. M at p. 1; Tr. p. 40). The student's eligibility for special education programs and services as a student with multiple disabilities is not in dispute on this appeal (see 8 NYCRR 200.1[zz]).
The student began receiving special education services as a very young child (Dist. Ex. 7 at p. 1).1 He was diagnosed with autism between the ages of one and two years old and respondent indicated that the student also has been diagnosed with Asperger's syndrome (Dist. Exs. 7 at p. 1; 16 at p. 2). Prior to entering petitioner's school district, the student's educational programs included a 6:1+1 day treatment program and an 8:1+1 class with a one-to-one aide (Tr. pp. 260-62, 297; Dist. Ex. 7 at p. 1). By report, the student has a history of "extremely volatile behavior and very high management and supervision needs" (Dist. Ex. 7 at p. 1). Administration of the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) to the student at the age of 13 yielded a full scale IQ score of 86 (id.).
Respondent and her family moved to petitioner's school district in October 2004 (Tr. p. 260). In November 2004, respondent provided petitioner's Committee on Special Education (CSE) with consent to evaluate and provide special education services to the student (Parent Ex. A). Although not specified in the record, at some point prior to February 2005 petitioner recommended home instruction services for the student. Respondent reported that the student's home instruction began in February 2005, but that through June 2005, petitioner provided at the most three home instruction sessions to the student and provided no related services (Tr. p. 274).
By letter dated January 21, 2005, the CSE contacted Autistic Services and requested it review the student's records for consideration of placement at their school (Dist. Ex. 3 at p. 1). On or about April 12, 2005, a social history of the student was completed for the purpose of "emergency placement" (Dist. Ex. 9 at pp. 1-2). The social worker reported that the student's mother appeared to agree that an "agency" setting for the student was necessary (id. at p. 2).2
On April 12 and 13, 2005, petitioner's speech-language pathologist, school psychologist and educational specialist attempted to evaluate the student (Parent Ex. B; Dist. Exs. 7 at pp. 1-3; 8 at pp. 1-4). The student demonstrated variable levels of agitation and, "unmanageable" behavior, and refused to participate in the majority of the assessments presented (Parent Ex. B at p. 2; Dist. Exs. 7 at p. 2; 8 at pp. 1-4). In addition to speech-language therapy, petitioner's staff recommended in their respective evaluative reports that the student be placed in a highly structured program for students with autism and receive the services of a one-to-one aide (Parent Ex. B at p. 3; Dist. Exs. 7 at p. 3; 8 at p. 4).
In early May 2005, the student was denied admission to multiple agencies (Dist. Ex. 3 at pp. 2, 4, 5). On May 24, 2005 petitioner's CSE met for the student's triennial review and to develop the student's individualized education program (IEP) for the student's 2004-05 school year (Parent Ex. F at p. 1). The resultant IEP indicated the participants at the meeting were petitioner's CSE coordinator and educational specialist and the school psychologist, who had determined the student was eligible for special education services as a student with autism (Tr. p. 418; Parent Ex. F at pp. 1, 12). The May 2005 IEP recommended referral to an agency to secure the student's placement in a 6:1+1 special class with a one-to-one aide and the related services of speech-language therapy, counseling and crisis intervention (Parent Ex. F at pp. 8, 9). Also on May 24, 2005, petitioner's school psychologist conducted the student's functional behavior assessment and developed his behavioral intervention plan (BIP) (Tr. p. 132; Parent Ex. G).
In June and July 2005, petitioner's CSE contacted three agencies in attempts to locate a placement for the student (Dist. Ex. 3 at pp. 16-18). Respondent reported that the student did not receive any special education services during summer 2005 (Tr. p. 280). By letter dated August 3, 2005, the CSE contacted eight agencies in attempts to find a placement for the student (Dist. Ex. 3 at pp. 11-14, 16-19). Later that month, the student was denied acceptance to four placements (id. at pp. 6-8, 10) but on or about August 22, 2005, was accepted for the 2005-06 school year to the Baker Hall Day School, a component of Baker Victory Services (Baker Victory) (id. at p. 20). On August 30, 2005, the CSE, consisting of the CSE Chairperson, psychologist and educational specialist, met and changed the student's classification from autism to multiply disabled and changed the recommended special class ratio from 6:1+1 to 12:1+3 (Tr. pp. 186, 190; compare Parent Ex. F at pp. 1, 8, with, Dist. Ex. 5 at pp. 2, 9).
At the beginning of the 2005-06 school year, the student attended Baker Victory in a 12:1+3 special class with a one-to-one aide (Tr. pp. 474, 487). On September 14, 2005 the student was admitted to the Erie County Medical Center (ECMC) due to "out of control" behavior exhibited at home (Dist. Ex. 4). While at ECMC, the student was provided with a variety of therapies and his discharge diagnoses on October 7, 2005 were an autistic disorder and mental retardation by history (id. at p. 4). At an unspecified time after his discharge from ECMC, the student returned to his program at Baker Victory (Tr. p. 475).
After a November 2005 incident on the bus (Tr. pp. 475, 477; Dist. Ex. 1), the student's bus service was suspended and the social worker from Baker Victory contacted the CSE to request that a one-to-one aide be added to the student's transportation plan (Tr. pp. 474, 494, 497; Dist. Ex. 2). On or about January 10, 2006, the student was suspended from his program at Baker Victory after an incident that involved an act of aggression toward a Baker Victory counselor (Tr. pp. 195, 482-86). The CSE met on January 13, 2006 to review the student's transportation plan and subsequently amended his IEP to provide a one-to-one bus aide for the student (Tr. p. 187; Dist. Ex. 5 at p. 1). The amended IEP stated that the student was referred for evaluation at other programs due to the student's escalating behavior problems at Baker Victory (Tr. pp. 188-89; Dist. Ex. 5 at p. 1). The CSE requested that respondent submit a letter requesting that petitioner conduct a reevaluation of the student (Tr. p. 192; see Dist. Ex. 5 at p. 1). The student did not return to his program at Baker Victory, and on January 23, 2006, petitioner's school counselor began providing the student with home instruction services (Tr. pp. 269-71, 435-37).
The CSE reconvened on January 27, 2006 for a nexus (suspension) review (Parent Ex. M). At that time, the CSE recommended that the student receive home instruction services six times per six-day cycle for two-hour sessions (id. at p. 8). The resultant January 2006 IEP set forth the same related services of speech-language therapy, counseling and crisis intervention that were contained in the student's prior IEPs (Parent Ex. M at p. 9; see Dist. Ex. 5 at p. 10; Parent Ex. F at p. 9). Respondent stated that the student's home instructor provided services five days per week for at least two hours per day and occasionally visited the student on the weekends (Tr. pp. 282-83). The home instructor also provided the student's counseling service (Tr. p. 436); however, there is no indication in the record that before April 2006 petitioner provided the student with speech-language therapy or ever provided the student with crisis intervention services (Tr. pp. 283-84).
In February 2006, the CSE requested that five agencies review the student's information to determine if an appropriate placement could be offered (Tr. p. 192; Dist. Ex. 3 at pp. 21-25). By letter dated February 8, 2006, Autistic Services informed petitioner's CSE that it was unable to accept the student into its program (Dist. Ex. 3 at p. 26). By letter dated March 3, 2006, respondent requested that the CSE reevaluate her son in order to locate an agency placement (Dist. Ex. 10).
On March 3, 2006, another of petitioner's school psychologists conducted a psychological evaluation of the student (Dist. Ex. 7 at pp. 5-8). Administration of the Stanford-Binet Intelligence Scale-Fifth Edition (SB5), Abbreviated Battery yielded an abbreviated battery IQ score of 70 (borderline), which the examiner reported could have been a minimal estimate of the student's ability due to his difficulty focusing and attempts to terminate the testing situation (id. at p. 6). The student's performance on the Bender Visual Motor Gestalt Test (Bender-Gestalt-II) resulted in drawings judged by the school psychologist to be generally below the level expected based on the student's age (id. at pp. 6-7). The student's perceptual skills were reported to be age appropriate, but his fine motor skills fell below age expectation and the school psychologist indicated that the student's writing skills were immature (id. at pp. 7, 8). His adaptive behavior as measured by the Vineland Adaptive Behavior Scales (Vineland) was in the "severe end of the low range," and reflected functional deficits in communication, daily living skills and socialization (id. at p. 7). The school psychologist concluded that although the student was capable of some higher level skills, his IQ score reflected his current level of performance, which was negatively affected by oppositional behavior and characteristics of autism (id. at p. 8). The school psychologist opined that the student had difficulty with emotional regulation and coping skills, and that he was appropriately classified as a multiply disabled student (id.). She recommended that the student's significant behavioral and emotional needs required a highly specialized setting and suggested a program that specialized in students with autism or dual diagnosis (id.). Occupational therapy (OT) for the student was also recommended (id.).
Also in March 2006, petitioner's educational specialist conducted an educational evaluation of the student (Dist. Ex. 8 at pp. 5-7). Administration of the Woodcock-Johnson III -Tests of Achievement yielded cluster standard scores that ranged from 70 (passage comprehension) to 91 (letter-word identification); however, the educational specialist reported that the student exhibited poor effort on the evaluation and she opined the results were an inaccurate assessment of the student's potential academic achievement (id. at pp. 5, 6). Socially, the educational specialist reported that the student demonstrated oppositional behaviors and intense management needs that required the presence of a one-to-one aide (id. at p. 7). She recommended placement with an intensive, highly specialized behavioral component and the related services of speech-language therapy, counseling and crisis intervention (id.).
By letter dated March 28, 2006, respondent, through her attorney, requested an impartial hearing, asserting that the student had been denied a free appropriate public education (FAPE) by petitioner for the 2004-05 and 2005-06 school years (Parent Ex. N). The request alleged numerous procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA) conducted by petitioner, including allegations that petitioner failed to identify an educational placement for the student and failed to provide the student with adequate special educational programming and related services (id.). Respondent requested, in addition to other relief, an award of "corrective" or additional services in the form of compensatory education to remedy the alleged denial of FAPE during the 2004-05 and 2005-06 school years (id. at pp. 4-5). Specifically, respondent sought: "appropriate day-for-day corrective special education services to the student for this entire period of time, to be provided by highly trained professionals in the student's area of needs, and to be provided in a period of extended eligibility for programming. This extended eligibility would be at petitioner's expense and would include all related services that the student should have received during the 2004-2005 and 2005-2006 school years." (id.).
In response to respondent's request for an impartial hearing, petitioner informed respondent by letter dated April 5, 2006 that it would initiate the student's related services of speech-language therapy and counseling, and that it continued to search for an appropriate program, and that upon completion of the reevaluations it would convene a CSE meeting (Parent Ex. O).
The impartial hearing began on May 3, 2006 and was held over the course of four nonconsecutive days, concluding on May 16, 2006. In her decision dated June 3, 2006, the impartial hearing officer found that petitioner failed to offer the student a FAPE for the 2004-05 and 2005-06 school years (IHO Decision, pp. 39-40). The decision set forth twelve orders (id. at pp. 41-43). The impartial hearing officer ordered inter alia that the student be placed in "an agency Day Treatment Program" and that petitioner continue to provide the student with home instruction services until he is accepted by a day treatment program (id. at p. 41, ¶ ¶ 2, 3). Regarding respondent's request for "corrective" or additional services, the impartial hearing officer ordered that the student: (1) be awarded compensatory speech-language therapy four times a week for thirty minute individual sessions for one year (id. at p. 42, ¶ 6); (2) be awarded compensatory counseling twice a week for thirty minute sessions for one year (id. at p. 42, ¶ 7); and (3) "be awarded 1 hr. of compensatory education in addition to the 2 hrs. of home instruction. Additionally, when in a Day Treatment Center, he is to be awarded 1 hr. of compensatory education." (id. at p. 43, ¶ 11). She also ordered the services to commence within 15 days of the parties' receipt of her decision (id. at p. 43, ¶ 12).
Petitioner appeals from that portion of the impartial hearing officer's decision that ordered petitioner to provide one hour of compensatory education in addition to the two hours of home instruction or the student's attendance in a day treatment program. Petitioner argues that the impartial hearing officer erred in ordering an hour of compensatory education because respondent did not demonstrate any evidence of the student's "regression"; the award was for an indefinite period of time; and the evidence demonstrated that the student could not tolerate an added hour of instruction. Respondent requests that the appeal be dismissed in its entirety, asserting that a parent does not need to demonstrate regression in order to show entitlement to additional services and that the impartial hearing officer properly awarded additional services.3
As a preliminary matter, I find that petitioner has only sought review of the impartial hearing officer's order awarding the student one hour of compensatory education in addition to home instruction or the student's attendance in a day treatment program. The Regulations of the Commissioner of Education provide that the "petition for review shall clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken, and shall briefly indicate what relief should be granted by the State Review Officer to the petitioner" (see 8 NYCRR 279.4[a]). As noted above, the impartial hearing officer issued three orders directing petitioner to provide the student with additional services of speech-language therapy (IHO Decision, p. 42 at ¶ 6), counseling (id. at p. 42, ¶ 7), and one hour of compensatory education (id. at p. 43, ¶ 11). The petition expressly states that petitioner is appealing from paragraph 11 of the impartial hearing officer's decision (Pet. ¶ 8). Although the "wherefore" clause of the petition indicates that petitioner seeks reversal of the impartial hearing officer's decision "insofar as it ordered 'compensatory' education for this student," I decline to construe the petition so broadly to encompass review of the awards of compensatory speech-language therapy and counseling. Petitioner does not provide any specific allegations about the speech-language therapy and counseling awards, and therefore, I find that petitioner did not comply with the requirements of 8 NYCRR 279.4(a) to the extent that it may be challenging these awards. Accordingly, I decline to review the impartial hearing officer's directives relating to speech-language therapy and counseling, and such awards shall continue in effect and shall not be impacted by this decision.
I also note that petitioner does not appeal the impartial hearing officer's finding that petitioner failed to offer the student a free appropriate public education (FAPE) for the 2004-05 and 2005-06 school years. Thus, I need not address this finding on appeal and turn to petitioner's contentions regarding the award of one hour of compensatory education.
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).
On appeal, petitioner argues that there is no evidence that the student "regressed." I note that there is no requirement that children with disabilities experience "regression" before they can be awarded compensatory education or additional services. Rather, as explained in the foregoing paragraph, the standard for awarding compensatory education or additional services depends on whether there is a finding of a "gross violation" of IDEA or a denial of FAPE, respectively. Here, the student is 16 years old at the time of this appeal 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. 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). For this reason, I concur with the impartial hearing officer awarding the student one hour of additional academic services (see also Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for the State Review Officer to order a school district to provide "make-up services" to a student upon the district's failure to provide those educational services to the student during home instruction]). Contrary to petitioner's assertion that there is no end date, I find that a reading of the decision in its entirety demonstrates that the impartial hearing officer determined a one year time limit to her award (see IHO Decision, p. 38). I also find that the impartial hearing officer determined that a New York State certified special education teacher should provide this instruction (see id.). For the purpose of adding specificity, I will modify the impartial hearing officer's order to set forth the duration of the award and that the additional hour of instruction shall be provided by a New York State certified special education teacher (see N.Y. Educ. Law § 4404).
I am also not persuaded by petitioner's assertion that the student could not tolerate an additional hour of additional academic services. The record indicates that the home instructor spent at least two hours per day with the student and occasionally visited the student on the weekends (Tr. pp. 282, 457). The home instructor opined that he was successful working with the student (Tr. p. 444). Although the home instructor testified that the student would instruct him to leave at the end of the session and would become fatigued (Tr. p. 468), he also explained that the student, like others with autism, is set by his routine (Tr. pp. 471-72). As to the student's ability to tolerate an extra hour of instruction in addition to a full school day, the home instructor opined that it would not be easy for the student to adapt to a full school day at an agency but did not mention fatigue as a reason (Tr. pp. 469-70). He stated that a full school day would be a big change for the student, and that students with autism "don't cope with change very easily" (id.). However, he did state that the student would require a very specialized full day school program in order to meet his needs and agreed that a small self-contained class with other students would be beneficial (Tr. pp. 457, 472). After a full and careful reading of the record, I do not construe the testimony of the student's home instructor to imply that the student could not tolerate additional services in conjunction with the student's home instruction program or an extended school day after placement in a day treatment program as petitioner alleges. However, when amending the impartial hearing officer's award, I will instruct that it can be modified upon agreement of the parties, and encourage the parties to work together in a collaborative fashion to adjust the delivery of the student's services, if adjustment is appropriate, based upon his needs.
Finally, I note that petitioner's school psychologist identified the student's fine motor skills as an area of need (Tr. pp. 211-12; Dist. Ex. 7 at p. 8). The school psychologist testified that subsequent to her report the CSE recommended an OT evaluation of the student (Tr. p. 212). The school psychologist testified that the recommendation of an OT evaluation of the student was also to assess his sensory integration skills (Tr. p. 213). At the time of the impartial hearing, no OT evaluation of the student had been conducted (Tr. p. 212), and because the record supports the need for an OT evaluation, I will modify the IHO's decision and direct that petitioner conduct an OT evaluation of the student (see N.Y. Educ. Law § 4404).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby modified, as detailed below, to the extent that it ordered the following: "That [the student] be awarded 1 hr. of compensatory education in addition to the 2 hrs. of home instruction. Additionally, when in a Day Treatment Center, he is to be awarded 1 hr. of compensatory education." (IHO Decision, p. 43, ¶ 11); and
IT IS FURTHER ORDERED that the impartial hearing officer's decision at page 43, paragraph 11 is hereby modified to read as follows: "Unless the parties otherwise agree, the student shall be awarded one hour of additional academic services per school day in addition to the two hours of home instruction and such one hour of additional academic services shall continue when the student is in a day treatment program. Such services shall be provided by a New York State certified special education teacher and shall commence within 15 days of receipt of this decision and continue for one year from the date of commencement"; and
IT IS FURTHER ORDERED that within 30 days of the date of this decision, the CSE shall conduct an occupational therapy evaluation of the student and shall reconvene to determine the student's need for occupational therapy services.
1 I note that the record contains multiple duplicative exhibits. For purposes of this decision, only District exhibits were cited in instances where both a District and Parent exhibit were identical. I remind the impartial hearing officer that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][xii][c]).
2 The term "agency" placement was described in the record as reference to an out-of-district placement in a New York State approved private school (Tr. p. 141).
3 In its answer, respondent also raised an affirmative defense asserting that the appeal was commenced in an untimely manner and must be dismissed. A petition for review to the State Review Officer (SRO) must be served within the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). An SRO may excuse a failure to timely serve a petition for review within the time specified for good cause shown (id.). The reasons for such failure shall be set forth in the petition (id.). Petitioner does not specify good cause for the late service in its petition; however, petitioner's counsel submitted on appeal an affidavit with its petition, stating that she believed the petition for review had to be served on or about July 12, 2006 and that the school officer with knowledge of the matter was not available to verify the petition for review until July 13, 2006. I am not persuaded that petitioner demonstrated good cause to excuse a late filing; however, in this instance I note that the parties miscalculated the time period for commencing an appeal and that petitioner timely served the petition for review. The impartial hearing officer's decision is dated June 3, 2006. Respondent asserts in her memorandum of law that the decision was mailed to the parties (Parent Memo of Law, p. 6). When a board of education initiates an appeal, the petition for review shall be served upon the parent within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (8 NYCRR 279.2[c]). Here, the petition for review would have to be served by July 13, 2006 in order to be timely. Petitioner's affidavit of service indicates that the notice of petition and petition were personally served on respondent on July 13, 2006. Because the petition for review was served in a timely manner, I address the merits of this appeal.