Decision No. 12,969

(August 2, 1993)

Mid-Hudson Legal Services, Inc., attorney for petitioners, RosaLee Charpentier, Esq.,

of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent board of education,

Daniel Petigrow, Esq., of counsel

Raymond G. Kuntz, P.C., attorney for respondent board of cooperative educational services,

Wendy Klarfeld Brandenburg, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondents' alleged failure to comply with the Individuals with Disabilities Education Act (IDEA) and Education Law '3214. Petitioners seek a determination of their daughter's pendency placement and an order awarding her one year of compensatory education. The appeal must be sustained in part.

Petitioners are residents of the Ellenville Central School District. In August 1992, petitioners' sixteen year old daughter came from Colombia, South America to live with them. Upon the enrollment of their daughter in school, petitioners informed respondent school district that she had emotional and mental problems and that, while in Colombia, she had been receiving special education services. At the time of her enrollment, school officials had not received any educational, psychological or medical records.

As a temporary measure, the chairperson of the school district's committee on special education (CSE) requested that respondent board of cooperative educational services (BOCES) enroll the student in its Life Skills Development Program to obtain a diagnostic evaluation. After only a few days in the BOCES program, respondent BOCES suspended the student from its program after she became violent and physically abusive. There is no indication that petitioners received either notice of their rights or a hearing pursuant to Education Law '3214.

Thereafter, in September 1992, a psychoeducational evaluation was obtained. In October 1992, respondent school district provided the student with home instruction. However, after two weeks on home instruction, the student began again to exhibit aggressive behavior, and the tutor refused to continue providing her with services. Subsequently, respondent BOCES accepted her in an Individual Learning Program (ILP) at the Ellenville High School, but suspended her after 3 1/2 days.

In December 1992, after petitioners requested an impartial hearing to challenge the lack of educational services, respondent board of education agreed to provide the student with tutoring at a BOCES location in Port Ewen. Once again, after four sessions, the tutor refused to return due to the student's violent and physically abusive behavior. Each suspension or cessation of services occurred without a hearing or the notice required under Education Law '3214.

At the end of December 1992, the student was admitted to Rockland Children's Psychiatric Center where psychological assessments were conducted. The report indicated that the student was too low-functioning to be placed in a BOCES program. In March 1993, six weeks after her release from the psychiatric center, the chairperson of the CSE referred the student to the Westchester Institute for Human Development Department of Psychology for a behavioral evaluation. The report recommended a 1:1 bilingual instructor at the BOCES program. In May 1993, the student was provided educational services at the BOCES Port Ewen location. The record contains contradictory statements by the parties as to whether the services were provided by the board of education or by BOCES. In any event, on May 10, 1993, the student was suspended for violent and physically abusive behavior toward students and staff. On May 24, 1993, petitioners requested an impartial hearing and asked that their daughter be readmitted to school. On June 9, 1993, petitioners initiated this appeal.

By letter dated June 29, 1993, I directed petitioners, pursuant to 8 NYCRR '275.1, to join BOCES as a respondent in this appeal, and on June 30, 1993, petitioners did so. Further, the June 29 letter directed petitioners to submit information pursuant to 8 NYCRR '276.5 clarifying their May 24, 1993 request for an impartial hearing, indicating the issues they intended to raise before the hearing officer. Respondent board of education was directed to submit information indicating whether its CSE had ever classified this student and recommended a placement for her.

Respondent board of education submitted documentation indicating that, although this student had been evaluated periodically throughout the 1992-93 school year and placed temporarily at BOCES or received tutoring, to date, its CSE had not formally recommended classification or placement.

Petitioners submitted evidence indicating that the purpose of their May 24, 1993 request for an impartial hearing was to obtain a determination of their daughter's pendency placement. They assert that pendency is the instructional program previously provided two hours each day, three days each week at the BOCES Port Ewen location. They object to home tutoring as the pendency placement. Petitioners further object to the suspension of their daughter from the BOCES placement as being a change in placement which respondents effected without following the procedures mandated by IDEA.

As part of their appeal, petitioners request that I determine this student's pendency placement pursuant to Education Law '4404(4). However, as noted, on May 24, 1993, petitioners requested an impartial hearing to secure a determination by the hearing officer on the identical issue. The record indicates further that on June 15, 1993, respondent board of education received confirmation that Mr. James Monk was available to act as a hearing officer.

Although petitioners could have appealed to the Commissioner of Education, pursuant to Education '310, on the issue of pendency, because pendency is the subject of petitioners' request for an impartial hearing, petitioners are required to exhaust administrative remedies before seeking review at the State level (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212). Thereafter, if petitioners are dissatisfied, the decision of the impartial hearing officer is reviewable by the State Review Officer pursuant to Education Law '4404(2).

Petitioners also argue in this appeal that respondent board of education violated their daughter's rights under IDEA by failing to conduct timely evaluations and make a timely recommendation for her classification and placement. Petitioners are correct. Section 200.4(c) of the Regulations of the Commissioner of Education requires a CSE to make a recommendation within 30 days of its receipt of consent for evaluation, or within 40 days of referral, whichever is earlier. In this case, the student was referred for evaluation and placement when she was enrolled in respondent's school district in September 1992. By the end of the 1992-93 school year, the CSE had still not made any recommendation. I find, therefore, that respondent has violated 8 NYCRR '200.4(c) and must immediately convene its CSE to recommend a placement for this student.

Petitioners also contend that, in failing to provide notice and a due process hearing prior to their daughter's suspension from school and discontinuing tutorial services, respondents violated Education Law '3214(3). Petitioners are correct. Education Law '3214(3)(c) provides that,

There is no evidence in this record that petitioners were provided notice of the suspension nor were they given an opportunity for a hearing. I find, therefore, that respondents violated this student's right to due process pursuant to Education Law '3214. Consequently, all reference to the suspensions must be expunged from her records. In addition, respondents are directed to comply with the requirements of Education Law '3214.

In its answer, respondent BOCES argues that petitioners' daughter was never formally placed in a BOCES program, but was, instead, placed there on an interim basis to enable the district's CSE to obtain evaluations to make an appropriate placement recommendation. Therefore, BOCES maintains that, because the student was never formally placed there, its refusal to permit her to return to its program did not constitute a suspension. That argument is spurious at best. Having accepted petitioners' daughter into its programs, however temporarily, BOCES was required to comply with the due process requirements of Education Law '3214 prior to excluding her.

Finally, to the extent petitioners assert claims under '504 of the Rehabilitation Act in connection with this student's suspension from school, such claims should be made at an impartial hearing held in accordance with procedures adopted by the school district, as required by 29 USC '794 and 34 CFR Part 104.

As relief for respondent's failure to provide their daughter with educational services throughout the 1992-93 school year, petitioners seek one year of compensatory education. As previously noted, respondent school district's CSE failed to make a placement recommendation for this student throughout the 1992-93 school year. In addition, the record indicates that, due to the suspensions and cessations in tutorial services throughout the year, this student received virtually no educational services. Based on the gross procedural violations which occurred during the course of the 1992-93 school year, this student was denied her right to a free appropriate education to an extent that warrants an award of compensatory education (Mrs. C. v Wheaton, 916 F2d 69 [2nd Cir., 1990]; Burr v Ambach, 863 F2d 1071 [2nd Cir. 1988] vacatedsubnom. Sobol v Burr, 492 US 902 [1989]; Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 111).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that respondent's committee on special education be convened immediately to make a placement recommendation for this student.

IT IS FURTHER ORDERED that respondent CSE develop a plan to provide appropriate compensatory education services as part of its recommendation for this student.

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