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Decision No. 12,587

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from the determination of an impartial hearing officer regarding the provision of educational services by the Board of Education of the Farmingdale Union Free School District.

Decision No. 12,587

(September 19, 1991)

Frank X. Kilgannon, Esq., attorney for petitioner

Gregory J. Guercio, Esq., attorney for respondent, Gary L. Steffanetta, Esq., of counsel

SOBOL, Commissioner--Petitioner appeals from the decision of an impartial hearing officer finding that her son was not entitled to compensatory education. The appeal must be sustained.

Petitioner's son is classified multiply handicapped, learning disabled and visually impaired. Classification is not at issue in this appeal. The student was initially provided with special education services following a recommendation by respondent's committee on special education (CSE) in September, 1985. Throughout elementary, middle and high school the student was placed in a special class with a 12:1 student to staff ratio, and also received the services of a teacher for the visually impaired. Upon entering high school in September 1983, the student was placed in special education courses that paralleled a regular education academic program leading to a local diploma. Throughout his four years in high school, the student received academic credit toward his diploma for courses completed in his special education classes. The record indicates that petitioner made repeated requests and inquiries about the provision of vocational education for her son in grades 9, 10 and 11 which the CSE consistently denied. Although the CSE indicated that vocational education was inappropriate for petitioner's son at that time, notably, the CSE never conducted a vocational assessment. During the 1986-87 school year, when he was in grade 12, the student completed all the academic requirements for a local diploma but did not pass the Regents Competency Test (RCT) in reading. Because he had not yet passed his RCT, he did not graduate in June, 1987. For the 1987-88 school year, the CSE recommended a half-day program at the high school for courses in reading, computer and speech and a half-day program at BOCES in an Intensive Support Food Services program. The BOCES handbook, in describing the Food Program, states that "while the program is viewed as a two-year program, it is oriented toward a student's transition into regular occupational education or employment after one year or less if the student can make the transition into a less restrictive environment."

In January, 1988, the student passed the RCT in reading, thus meeting all of the academic requirements for graduation. Nonetheless, he continued in the food program for the rest of the school year as his individualized education program (IEP) specified. Although the student was scheduled to graduate in June, 1988, on June 2 petitioner requested an impartial hearing regarding the student's program placement for the 1988-89 school year on the basis that he had only completed one year of the two year vocational program. An impartial hearing was scheduled for August 7, 1988, that was postponed at the request of the petitioner's attorney. Meanwhile, on June 22, 1988, the student received his diploma.

At the beginning of the 1988-89 school year, the impartial hearing was still pending. Because the student had already received his high school diploma, respondent did not place the student in an educational program for the upcoming year. Further, respondent had determined that no placement for the 1988-89 school year was necessary because the student had achieved his IEP goals by the time of his graduation, including the goals set for the food program. On October 28, 1988, petitioner appealed to me to have her son returned to a program similar to his 1987-88 placement. On November 22, 1988, I issued an interim order directing respondent to place him immediately in school, pending a determination on the appeal, and further ordered that the impartial hearing be commenced immediately. The interim order cited "4404(4) of the Education Law which provides, in pertinent part, "During the pendency of any proceeding conducted pursuant to this section...the child shall remain in the then current educational placement of such child...until all such proceedings have been completed." Consequently, the student was placed in a half-day BOCES program in Food Occupations and a half-day high school program, similar to his 1987-88 placement, and remained there through the end of the 1988-89 school year. On May 22, 1989, I issued a final decision sustaining petitioner's appeal and ordered respondent to continue the student in school pending all proceedings (Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 493). In the interim the impartial hearing was convened and in March, 1990, the hearing officer rendered his decision holding that respondent was under no further obligation to educate the student.

Petitioner appeals on several grounds from the hearing officer's denial of her request for compensatory education. She alleges various procedural deficiencies regarding prior meetings of respondent's CSE and also challenges the appropriateness of her son's earlier placements. Although the appropriateness of her son's prior placements is moot, presumably petitioner raises those issues to support her current request for compensatory education. The gravamen of petitioner's complaint, however, is respondent's alleged failure to address her son's need for vocational education. She contends that, based on that failure, her son is entitled to an award of compensatory education. I find petitioner's arguments meritorious in that respect and, therefore, need not address petitioner's other claims.

Compensatory education has been awarded by the courts in instances where services have been wrongfully denied under the provisions of the Individuals with Disabilities Education Act (IDEA) (Burr v. Ambach, 863 F2d 1071 [2nd Cir. 1988] vacated sub nom.Sobol v. Burr 492 US 902 [1989], on remand, 888 F2d 258 [2nd Cir. 1989], cert. denied, US , 110 SCt 1298 [1990]). An award of compensatory education is warranted where a gross procedural violation has occurred which results in the denial of a free appropriate education (Mrs. C. v. Wheaton, 916 F2d 69 [2nd Cir. 1990]; Burr v. Ambach, supra; Lester H. v. Gilhool, 916 F2d 865 [3rd Cir. 1990], cert. denied, US [1991]). A finding that a placement recommendation is inappropriate, however, does not ordinarily constitute a sufficient basis for awarding compensatory education. The due process provisions of IDEA were enacted by Congress specifically to address and remedy those complaints (20 USC "1415, Education Law "4404). After reviewing the extensive record in this case, however, I find that procedural violations occurred which denied this student his right to a free appropriate education and, therefore, are sufficient to warrant an award of compensatory education.

To ensure that each child with a handicapping condition receives an appropriate education, State and Federal law requires that the needs of such children be assessed periodically and at least annually (8 NYCRR 200.4[4]; 34 CFR 300.534). Assessment of the need for occupational and vocational education should occur beginning in grade nine (8 NYCRR 100.2[h]). State guidelines regarding procedures for the education of children with handicapping conditions include vocational assessments as part of an appropriate individual educational evaluation and stress the need for early vocational planning where appropriate (Guidebook for Committees on Special Education in New York State; A Parent's Guide to Special Education; See, also, 8 NYCRR 200.4[b][2][vi]). Nevertheless, there is no evidence in the record that respondent's CSE ever initiated or reviewed a vocational assessment on this student. Given this student's age and ability, such an assessment should have been conducted as part of the student's overall evaluation (see 8 NYCRR 200.4[b]). Indeed, the record indicates that in response to petitioner's repeated inquiries about the provision of vocational education while her son was in high school, she was continually assured that he would receive such services once he fulfilled his academic requirements. The student's guidance counselor testified that the CSE discussed the student's need for vocational education and determined to provide it sometime in the future. Respondent's superintendent of schools stated that most students begin vocational education in their junior year of high school but could not explain why the opportunity was not extended to petitioner's son. Notably, the student's triennial evaluation, which was completed in 1985 after two years in high school, contained no vocational assessment despite his mother's continual requests for vocational education. At least one psychological evaluation recommended vocational counseling. However, it was not until this student completed four years of high school, and was attending a fifth year in order to complete the RCT requirement, that respondent's CSE offered him a vocational program. By failing to assess this student's vocational needs and provide adequate planning for vocational education, I find that respondent denied this student a free appropriate education.

Respondent argues that, by failing to pursue her administrative remedies, petitioner waived any objection regarding the provision of vocational education. The record indicates, however, that petitioner's decision not to pursue her administrative remedies was based on her reliance on the repeated representations by the CSE that vocational education would be provided after the student satisfied his academic requirements. It was not until August, 1987, that she was informed by respondent that, because her son had completed his academic requirements for graduation, he had not been scheduled for any classes during the 1987-88 school year. Respondent indicated that because the student would receive his diploma upon passing the reading RCT, it had no further obligation to provide him with an education. Although, generally, a claim for compensatory education as relief for violations which occurred in prior school years will not be entertained where the petitioner failed to exhaust administrative remedies in a timely manner, I find that, in view of petitioner's reliance on the representations made to her by respondent's CSE in this instance, petitioner has not waived her right to challenge the district's continual failure to assess and provide her son with vocational education or to seek as a remedy compensatory education.

I also note that during the relevant time period respondent apparently failed to provide notice to the parent of her right to request that her son be referred for adult services as required by Chapter 462 of the Laws of 1984. Because this student was attending a full time special education program, he became eligible when he was fifteen for referral to the adult service system pursuant to the provisions of State law then in effect. Nonetheless, petitioner was never given notice of her son's eligibility to begin the aging out process nor was a referral for adult services ever made. Respondent's procedural omissions, therefore, not only deprived this student of an appropriate education during his high school years but also represent an abrogation of its obligation to assist in his transition to appropriate adult services. Although Chapter 462 of the Laws of 1984 has since been repealed, respondent failed to comply with its provisions at the time and, in any event, federal law now requires that a student's individualized educational program include necessary transitional services (20 USC 1401[a][20][D]).

As a result of respondent's failure to assess this student's vocational needs and provide timely services, I find that he was denied a free appropriate education. Because I also find that the district's repeated assurances to petitioner regarding the future provision of vocational training for her son served to discourage the parent from pursuing her right to a hearing, which she would have otherwise been required to do, I find that petitioner's son is entitled to an award of compensatory education (See, Burr v. Ambach, supra; Mrs. C. v. Wheaton, supra; Lester H. v. Gilhool, supra).

By virtue of my November 28, 1988 interim order and my final decision in Appeal of a Child with a Handicapping Condition, supra, respondent has continued to provide this student with vocational education for an additional two and one-half years beyond graduation. Petitioner now seeks relief in the alternative; she has requested an award of compensatory education either by continuing her son in the BOCES program he currently attends or through the provision of services by the State Education Department Office of Vocational and Educational Services for Individuals with Disabilities (VESID). As previously noted, respondent is required to refer this student for adult services. Petitioner's son has now participated in a high school vocational program for a total of three and one-half years. As the superintendent testified, generally, vocational education is provided to students beginning in their junior year of high school. I find that by providing two and one-half years of vocational education beyond graduation, respondent has fulfilled its obligation to provide compensatory education to this student. Moreover, it appears from the record that this student is eligible to receive adult vocational services through VESID as petitioner requests. Consequently, given this student's age, there is no need for him to continue to receive such services in a high school setting. In order to arrange for those services, respondent must immediately initiate a referral to VESID to enable petitioner's son to access adult services for which he is eligible.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Farmingdale Union Free School District immediately refer petitioner's son to the State Education Department Office for Vocational and Educational Services for Individuals with Disabilities for an evaluation to receive adult services.

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