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Decision No. 13,602

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Oceanside Union Free School District regarding the provision of educational services.

Decision No. 13,602

(April 24, 1996)

Anthony D. Denaro, P.C., attorney for petitioner, Anthony D. Denaro, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, Florence T. Frazer, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to provide her son with specialized reading instruction at home during evening hours. The appeal must be sustained in part.

Petitioner and her son reside within respondent's school district. Respondent's committee on special education (CSE) classified petitioner's son as learning disabled in April 1983 after he repeated the first grade. The student was provided special education services until June 1993, when he was issued a high school individualized education program (IEP) diploma.

Through the 1992-93 school year, because of the severity of his deficits, petitioner's son received an intensive special education program of reading remediation that took place in a resource room or self-contained academic class supplemented with additional services by a certified reading teacher as well as speech/language services to enhance language comprehension. After years of this specialized reading instruction focusing on both a phonetic and a sight word approach, and intensive language development services, the student's highest achievement in reading remains at the level of the third grade.

In October 1993, petitioner requested a meeting regarding her son's continuing need for special education services. On November 3, 1993, respondent's child study team met and recommended that petitioner's son participate in a Level III vocational assessment consisting of a 10-day, on-site situational assessment, specific to the vocational tasks required in the advanced automotive mechanic program offered by the Nassau Board of Cooperative Educational services (BOCES). Because this program generally requires entrants to have a sixth grade reading level, the team also recommended one period per day of remedial reading instruction by a certified special education teacher at Oceanside High School. Petitioner agreed that her son was interested in the Nassau BOCES program but disagreed with the team's recommendation for reading services and requested instead that her son be tutored in reading at home. The parties maintained contact through correspondence and conversations but could not resolve their disagreement. Petitioner commenced this appeal on October 3, 1994.

Petitioner contends that respondent refuses to provide her son with specialized reading instruction at a time and place necessary for him to benefit from his vocational employment program. She contends that any delay in filing this appeal is due to continued negotiations with respondent.

Respondent contends that the appeal should be dismissed as untimely because it was commenced nine months after the November 3, 1993 meeting of the child study team. Respondent also contends that the specialized reading services requested by petitioner are inappropriate because tutoring at home is a highly restrictive placement and it does not appear to be goal-oriented or career-oriented or in furtherance of any particular vocational goal. Respondent contends that it has made considerable effort to effectuate an appropriate program for petitioner's son, including building an appropriate reading program around the hours of the student's vocational component, or any potential work schedule.

As a threshold matter, respondent is correct that an appeal must be commenced within 30 days after the decision or act complained of (8 NYCRR '275.16). Nonetheless, I find petitioner's appeal timely to the extent it alleges a continuing failure to provide appropriate specialized instruction for her disabled son (Appeal of a Student with a Disability, 33 Ed Dept Rep 101; Appeal of Aarseth, 32 id. 506; Application of a Child with a Handicapping Condition, 30 id. 293; Appeal of Town of Smithtown, 28 id. 337; Appeal of Baxter and Pickett, 21 id. 610).

Education Law '3202 provides that any person under 21 years of age who has not obtained a high school diploma is entitled to attend the public schools of the district in which he resides. In addition, '4402 entitles children with disabilities to a free appropriate public education (FAPE), including special education and related services in the least restrictive setting, tailored to their needs and delivered consistent with an IEP. Any dispute regarding the disabled student's evaluation, classification, program, or the provision of a FAPE, is subject to specific due process rights including detailed notice, hearing, and appeal (Individuals with Disabilities Education Act, IDEA, 20 USC '1415; Education Law '4404, NYCRR '200.5).

It is undisputed that petitioner's son is a student classified by respondent's CSE as learning disabled who reads at the third grade level and has never obtained a high school diploma. Consequently, until he is 21 years of age, he is entitled to all the rights provided under the IDEA (20 USC '1400 et seq., 34 CFR Part 300), Education Law Article 89 and 8 NYCRR Part 200. The fact that respondent issued him an early IEP diploma in no way terminates his entitlement to attend school and to receive a FAPE until the end of the school year in which he turns 21. Moreover, the regulation governing issuance of the IEP diploma to a student less than 21 years of age requires that it be accompanied by a written statement of assurance of the student's continued eligibility to attend school (8 NYCRR '100.9[e]). Because petitioner's son remains learning disabled and has never been declassified by the CSE, his eligibility to attend school ensures his entitlement to special education services under the IDEA and Education Law '4401. Where, as here, the parent of an eligible student requests services after an IEP diploma has been issued, the CSE should be convened and a new IEP developed to address the student's needs. If a dispute arises regarding appropriateness of the services, the proper procedures, including mediation and an impartial hearing should be followed, pursuant to Education Law '4404 and 8 NYCRR '200.5.

The record before me indicates that respondent has failed to provide petitioner and her son with the process they are due under these provisions of federal and state special education law. Specifically, when respondent received petitioner's request for specialized reading instruction and refused to provide the services she requested for her son, it failed to provide her with the proper notice, opportunity to participate with the CSE in developing an IEP with the appropriate instructional and vocational components for her son, and the opportunity for mediation and/or an impartial hearing to contest the CSE's recommendation.

Because of these shortcomings, as well as jurisdictional constraints imposed by Education Law '4404, I am unable to determine the appropriateness of the services contested by the parties. The issue of appropriateness of services is to be determined in the first instance by the CSE, with parental input, through development of the IEP. A disagreement over appropriateness is then decided by an impartial hearing officer, whose determination is subject to review by the state review officer. When petitioner requested specialized reading instruction in October 1993, the record indicates that respondent did not take appropriate action to convene its CSE, develop an IEP for the student, or give petitioner notice of her right to an impartial hearing. Thus, petitioner and her son were deprived of their rights to services and appeal procedures, including an impartial hearing, that would have developed a record upon which to base an appropriateness determination on appeal.

On the record before me, I find that as a result of respondent's failure to provide petitioner and her son with due process and educational services pursuant to an IEP throughout the 1993-94, 1994-95 and 1995-96 school years, the student was denied his right to a free appropriate public education to an extent that warrants an award of compensatory education (Appeal of a Student with a Disability, 33 Ed Dept Rep 46). Although the record indicates August 2, 1975 as the birthdate of petitioner's son and his entitlement to special education would ordinarily terminate in August 1996, upon attaining the age of 21, pursuant to Education Law '4402.5, services should be provided to him beyond that point to the extent necessary to compensate him for this gap in his program.


IT IS ORDERED that respondent's committee on special education be convened immediately to make a placement recommendation and develop an IEP 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.