03-078

        Petitioner appeals from an impartial hearing officer’s decision finding that the child was not denied a free appropriate public education (FAPE) and that there was insufficient evidence to award either additional tutoring services at Huntington Learning Center (Huntington) or compensatory education. The appeal must be sustained in part.

        At the outset, I must address several procedural issues. The impartial hearing officer’s decision is dated July 17, 2003. Petitioner served a Notice of Intention to Seek Review on respondent Board of Education of the City School District of the City of New York on August 21, 2003 and filed the same with the New York State Education Department. Petitioner thereafter served and filed a petition on September 2, 2003. Although respondent filed the decision, transcript and exhibits with the New York State Education Department, respondent did not answer in accordance with 8 NYCRR 279.5. Rather, by letter dated September 5, 2003, respondent requested an extension of time. Respondent has not answered the petition even though its time to answer has expired. Nonetheless, I am required to examine the entire record (34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.3), notwithstanding respondent's failure to answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        Additionally, petitioner attached to the petition, Exhibit "AA", which is a copy of this student’s most recent individualized education program (IEP) formulated shortly after the hearing was completed, and Exhibit "BB", which is an interim service plan implemented during the proceedings. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-032). As the IEP and the interim service plan were not available at the time of the hearing and are necessary to complete the record, I will consider these documents in this appeal.

        Petitioner's grandson was 17 years old at the time of the hearing and was enrolled at Paul Robeson High School ("Robeson"), a public school of the Department of Education of the City School District of the City of New York. The student entered Robeson as a ninth grade student in the 2000-2001 school year. By the 2002-2003 school year, the student had earned a total of zero credits towards a high school diploma and was scheduled to repeat ninth grade for the third year in a row. According to respondent, the student had a long history of non-attendance and truancy (Transcript pp. 26, 44, 53, 55, 80, 104-112). According to petitioner, however, the student’s attendance problems were due to the fact that his IEP, if he in fact had one, was not tailored to his needs and that he was effectively withdrawing from a situation in which he was destined to fail (Transcript pp. 170-172, 184-189, 210-213). At issue is petitioner’s claim for tutoring and three years of compensatory education to make up for an alleged denial of FAPE for at least the 2000-2001, 2001-2002, and 2002-2003 school years.

        The IEPs in evidence at the time of hearing were those formulated in November 1998 and November 2001 (Transcript p. 203; Exhibit 1; Exhibit M). These IEPs were both the result of triennial evaluations. While there is conflicting testimony as to which of the student’s relatives (the grandmother or the aunt) was the "parent" for educational purposes, it is clear that a parent participated in the formulation of the 1998 IEP but that no parent participated in the November 2001 committee on special education (CSE) meeting or the formulation of the IEP developed at that meeting (Exhibit 1; Exhibit M; Transcript pp. 192-194).

        Testing conducted as part of the triennial evaluation in October 2001, when the student should have been in 10^th grade, revealed that the student had reading skills at approximately the 3^rd-4^th grade level and math skills at approximately the 4^th-5^th grade level (Exhibit 2). The educational evaluator concluded that the student had "weaknesses in all areas" and that the "basics in all subject areas need to be re-taught." The educational evaluator also noted the student had very poor attendance, and appeared to "cut" most of his classes (Id.). The school psychologist reported that the student was "friendly" and "appeared to put forth his best effort" (Exhibit 4). The psychologist opined that "[the student] is experiencing feelings of insecurity and a tendency to rely on others. When frustrated, [he] may respond aggressively in an attempt to control his environment. When confronted with difficult situations, [he] seems to feel most comfortable removing himself from the situation. [The student] seems to feel that he is limited by his environment." (Id.) A vocational assessment at the time noted only that the student had goals of becoming a veterinarian (Exhibit 5).

        The November 2001 CSE classified the student as learning disabled, and recommended that the student remain in general education with special education teacher support services (SETSS), which consisted of resource room once per day (Exhibit 1). The student was also to receive speech services two times per week for 30 minutes and counseling services one time per week for 30 minutes. While noting that the student had poor attendance and "withdrawal tendencies", the IEP indicated that his behavior did not "seriously interfere" with his instruction, and therefore did indicate goals or interventions for this problem other than the counseling he was receiving. As for transition planning, the IEP indicates only that the student "will distinguish between needs and wants when making career choices" but again does not indicate any services (Id.).

        An IEP for the 2002-2003 school year, when the student should have been in 11^th grade, was never formulated (Transcript p. 21). Respondent maintained that no attempt was made to schedule a CSE meeting in the fall of 2002 because the student had failed to attend school (Transcript pp. 21, 53, 55). Indeed, the student was absent for much of the 2001-2002 and 2002-2003 school years (Exhibits 12, 13). Petitioner, however, contends that the student was in essence receiving no educational benefit from the program and was nevertheless prevented from enrolling at Robeson when he tried to return in the fall of 2002 and the spring of 2003 (Transcript pp. 170-172, 184-189).

        In September 2002, in or around the second week of school, the student went to Robeson in an attempt to register for classes. The student was neither given a program card nor was he referred to the CSE at that time. Rather, the student was sent to the guidance counselor’s office and told to come back with his aunt (Transcript p. 177). An inter-high school transfer form dated September 13, 2002 reveals that the school attempted to transfer the student to the Linden Learning Center (Linden), which is a General Education Diploma (GED) program (Exhibit 20; Transcript p. 73). The parent considered Linden, but objected to the transfer because it was too far from the student’s home. The student was thereafter referred to the Street Academy, but was rejected by that facility because he did not have any credits (Transcript 171).

        In October 2002 the parent and student came back to Robeson to report that they were not able to find a program for him (Exhibit 19; Transcript p. 109). The student was referred to the guidance counselor, but it is unclear what, if anything, transpired at this meeting (Id., Transcript p. 120). A referral to the CSE was not made at that time and the student remained without an educational program. According to the school’s attendance teacher at Robeson, the school attempted home visits in November 2002 and February 2003, leaving letters at the student’s home (Exhibit 19, Transcript p. 110). A conversation between the parent and the attendance teacher took place on February 12, 2003, at which time the parent asked if the student could return to Robeson. The teacher testified that she stated that if the student "really changed" the parent should set up an appointment with the school (Transcript p. 110).

        On April 3, 2003, the parent went to Robeson and met with the school’s assistant principal, who again gave the parent information on alternative programs. On April 4, 2003, the student’s case worker from the Center for Alternative Sentencing and Employment Services (CASES) contacted the assistant principal and informed her that in order for the student to be in good standing with his court ordered program, he must attend school (Transcript pp. 127-131). On April 7, 2003, the parent and the student went to Robeson with a letter from the CASES worker requesting that the school "please give [the student] a schedule that supports his need for special education with speech and counseling services." (Exhibit A) The assistant principal referred them to the school’s transitional linkage coordinator, who then referred the student to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) (Exhibit 16). As VESID did not have a GED program, additional referrals were considered, including Linden (for the second time) and the Frederick Douglass Learning Center (Id., Transcript pp. 89-92, 100). The latter facility, however, would only consider the student for the 2003-2004 school year (Id.).

        On or about April 30, 2003, the parent requested an impartial hearing. During the pendency of hearing proceedings, an interim service plan was formulated, requiring that the student receive home instruction until an IEP could be formulated (Exhibit BB). In or around June 2003 a CSE meeting took place, and an IEP was implemented (Exhibit AA). Significantly, no additional testing was conducted, and the CSE apparently relied on the same testing that was conducted in October 2001 in order to formulate the November 2001 IEP. The student’s classification remained the same, however, the CSE recommended that he be placed in a collaborative team teaching class with fourteen students for five periods per day and a self-contained special class for global studies and English (Exhibit AA). The CSE further recommended that the student receive counseling twice a week and speech twice a week (Id.).

        Notwithstanding the fact that no IEP was developed for the 2002-2003 school year, the supervisor of special education at Robeson maintained that the November 2001 IEP was in compliance with the law and continued to "drive his program" through the 2002-2003 school year (Transcript p. 21). The assistant principal testified that the student was continually enrolled at Robeson and that outreach was conducted and that he could have attended (Transcript pp. 80, 81). She also testified, however, that the student was never issued a program card for the 2002-2003 school year and that no student is permitted to attend classes at Robeson without a program card (Id.).

        As an initial matter, I must rule upon whether there was a denial of FAPE in this case for the 2001-2002 and 2002-2003 school years. The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. §§ 1400-1487; 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with an IEP which is tailored to the unique needs of the child (20 U.S.C. § 1401[8]; Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). An appropriate 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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Petitioner maintains that the November 2001 IEP was procedurally flawed because the parent was not informed of the CSE meeting in accordance with applicable regulations (34 C.F.R. §300.345[d]; 8 NYCRR §200.5[c]). There is conflicting evidence as to this point. Respondent offered testimony that the school informed the parent of this meeting via notice dated November 5, 2001, and via follow-up call on November 13, 2001, however no notice was entered into evidence (Transcript p. 29, 47). Petitioner maintained that written notice of the CSE meeting was not received and that the follow-up call, if it was placed, was made on the same day as the meeting (Transcript pp. 199, 211). Inasmuch as only the aunt testified, it is not clear whether perhaps someone else with whom the student resided may have received a notice.

        Regardless, the IEP was grossly inadequate for this student’s educational needs and it is upon this basis that I conclude that the student was denied a FAPE for the 2001-2002 school year. As noted above, testing conducted in October 2001 revealed that this student was functioning at approximately the 4^th grade level at a time when the student was supposed to be enrolled in 10^thgrade. Most disturbing is that the student was functioning at a similar grade level the last time he was tested in 1998. Essentially, this student had not advanced at all during the interim of the two triennial evaluations. Despite this, the November 2001 IEP placed the student in essentially the same program where he had been placed, to wit general education with resource room. In light of the student’s worsening educational delays, reported feelings of inadequacy, and withdrawal tendencies, this IEP was not "reasonably calculated" to confer "educational benefits" to this student (Rowley, 458 U.S. 176, 206-07).

        Having concluded that the 2001-02 IEP was not appropriate for this student and in consideration of respondent’s claim that this IEP was "still driving his program" during the 2002-2003 school year, I also conclude that this student was denied a FAPE for that year. In doing so, however, I must also comment on the extent to which respondent’s actions during that year appear to have been in direct contravention of applicable laws and regulations, which require an IEP to be formulated annually and the CSE to be convened if there is to be any recommended change in placement (20 U.S.C. §§1414[d][2][A], 1414[d][4][A][i]; 8 NYCRR §§200.4[f]). Indeed, a review of this record reveals that on numerous occasions respondent attempted to refer the student to alternative educational programs outside of the CSE process and that he was never issued a program card which would have allowed him to enroll in classes during the interim. Even assuming that a GED program might have been an appropriate consideration for this student, that does not obviate a school from complying with procedural requirements mandated by IDEA.

        Having concluded that there was a denial of FAPE for the 2001-2002 and 2002-2003 school years, I now must formulate an appropriate remedy in light of the circumstances of this case. The student was 17 at the time of the hearing and is now 18 years old. The most recent IEP states that the student is expected to complete high school with a Regents diploma in the year 2006, notwithstanding that at the time the IEP was formulated, in or around June 2003, the student was functioning at around the elementary level and had earned no high school credits towards graduation.

        Petitioner requests that respondent be required to pay for tutoring services at Huntington Learning Center for 400 hours at a cost of $75 per session, plus the cost of registration and assessment fees. Petitioner also requests that respondent be required to provide compensatory education for the years the student was denied a FAPE.

        Regarding compensatory education, the IDEA requires school districts to make a FAPE available to each student with a disability who has not received a high school diploma through the age of 21 (20 U.S.C. § 1412 [a][1][A]; Education Law §§ 4402[2][a] and 4401[1]). Although students are generally not entitled to a public education beyond that age, compensatory education may be awarded beyond age 21 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. (Burr v. Ambach, 863 F.2d 1071 [2^nd Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 29 [2^nd Cir. 1990]). 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] (denying compensatory education where there was no evidence of regression due to the denial of FAPE for a student)).

        State Review Officers have awarded compensatory education where there is evidence of a gross violation and it is evident that the deprivation of instruction is not able to be remedied by the student’s 21^st birthday (Application of a Child with a Disability, Appeal No. 02-019 (compensatory education awarded to a 17 year old where deprivation was unlikely to be remedied); Application of a Child with a Disability, Appeal No. 02-042 (compensatory education denied where student was 14 at time of hearing and deprivation could be remedied); Application of a Child with a Disability, Appeal No. 02-004 (compensatory education denied where student was 16 at the time of the hearing and deprivation could be remedied)).

        In this case, I find that there was a gross violation of IDEA and that the student either did not progress or regressed during a time period when he should have been afforded a program that provided an opportunity for educational benefits. Indeed, this student was provided a grossly inadequate IEP for the 2001-2002 school year and was effectively excluded from school during the 2002-2003 school year. While it is true that the student was cutting classes, he testified that he did so because the work was too hard and that when he tried to communicate this, the teachers would not listen (Transcript p. 173). I further find that it is unlikely that the deprivation of instruction will be remedied before this student turns 21, especially in light of the student’s current educational abilities and his IEP stated long term goal of obtaining a Regents diploma. I find that an award of two years of compensatory education is appropriate in this case.

        Finally, the student is at this time 18 years old. Although not the subject of this appeal, the transition planning and vocational assessment contained in his most recent IEP are severely lacking. Among the purposes of IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. §300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment and independent living (See Application of a Child with a Disability, Appeal No. 02-111, 300 C.F.R. Part 300 Appendix A Part III; 34 C.F.R. Part 300, Appendix A, Part III Question Nos. 11-13). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]).

        I conclude that the record clearly substantiates a gross violation of petitioner's grandson's right to an appropriate education resulting in his exclusion from any meaningful educational services for a substantial period of time. I further conclude that the appropriate remedy under the circumstances presented is for the student to receive two year of compensatory education. I cannot conclude, based on the evidence presented herein and lack of comprehensive evaluative data, that the tutoring sought by petitioner is appropriate.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that the matter be remanded to the CSE to conduct a comprehensive re-evaluation, including a vocational assessment, of this student's educational needs and within 45 days of this order the CSE shall convene to formulate a new IEP consistent with the terms of this decision; and

IT IS FURTHER ORDERED that petitioner's grandson be awarded two years of compensatory education.