The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of Jamesville-DeWitt Central School District
Andrew K. Cuddy, Esq., attorney for petitioner
Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathon B. Fellows, Esq., of counsel
Petitioner appeals from a decision of an impartial hearing officer denying her request relating to the proposed classification of her son. Respondent cross-appeals from that same decision and seeks to have the hearing officerís determination annulled. The appeal must be sustained in part.
At the onset, I note that the original petition commencing the appeal in this matter was verified by petitionerís attorney rather than by petitioner. This error was corrected by the service of a properly verified petition. I find that there was no prejudice as a result of this error and will accept the petition.
Petitionerís son was 11 years old and repeating the fifth grade at respondentís DeWitt Middle School at the time of the impartial hearing. The child was first referred to respondentís Committee on Special Education (CSE) when he was in the second grade at the Moses-DeWitt Elementary School. The CSE found the child ineligible for special education services. The following year the parent requested that the case be re-opened but the CSE denied, although they did note that impulsivity and attention might be factors that were related to poor academic performance.
The child advanced grades until he was a student in the fifth grade at Jamesville-DeWitt Middle School where he faltered particularly at the end of the school year. He was retained in the fifth grade at the request of his parent and with the concurrence of his teacher. Without requesting that the child be referred to the schoolís CSE, the parent commenced an impartial hearing. By decision dated August 31, 2002, the impartial hearing officer dismissed the parentís claims due to the failure to request an evaluation by the schoolís CSE, but directed the CSE to treat the decision as a formal request.
The CSE compiled a fairly comprehensive number of evaluations including an extensive neuropsychological evaluation performed by an independent evaluator of the parentís choosing. The CSE was scheduled to meet on November 8, 2002, but that meeting was cancelled and a subsequent date of November 19, 2002 was set. The CSE met on that date but did not make a recommendation. The CSE again met on December 9, 2002 and found the student eligible for special education services, classified the child as other health impaired (OHI), and established a program that included student consultant teacher services twice weekly for 60 minutes per session. The parent disagreed with both the classification and services offered and sought review by an impartial hearing officer. However, prior to the commencement of the impartial hearing, on February 26, 2003, the parent signed a statement stating that she was in agreement with the CSEís recommendation and placement. It is important to note that the parent never withdrew her request for an impartial hearing and fully participated in the hearing.
An impartial hearing was held on March 31, 2003 and April 1, 2003. On May 16, 2003 the impartial hearing officer issued a written determination. In that decision the impartial hearing officer determined that petitionerís letter of agreement to the school district acted as an estoppel to her right to be heard on the issues raised in her request for the hearing, but found that the district chose not to raise the estoppel issue and treated the letter solely as an agreement as to pendency placement. The hearing officer also found that the CSE was improperly constituted. Specifically, the hearing officer found that the CSE lacked an additional parent member as required by the Regulations of the Commissioner of Education, 8 NYCRR 200.3(a)(1). The hearing officer additionally annulled the individualized education program (IEP) prepared by the CSE on December 9, 2002 on both procedural and substantive grounds and further remanded the matter to the districtís CSE to further evaluate the child and include a full psychiatric evaluation.
The impartial hearing officer specifically found that the additional parent member, as required by section 4402(b)(1)(a)(viii) of the Education Law, was not present at the CSE meeting held on December 9, 2002 It is undisputed that the additional parent member was not present at that meeting. Petitioner asserts that this is a basis for the impartial hearing officerís finding that the CSE was not properly constituted. Respondent maintains that the additional parent member requirement was waived as a result of a telephone communication between the district and the childís grandmother. (Transcript p. 107) Nonetheless, I can find nothing in the record that suggests that the grandmother had any actual authority to do so. Further, the grandmother was not asked if she had authority to do so at the hearing. The testimony of the childís mother is similarly lacking. The Individuals with Disabilities Education Act (IDEA) sets forth minimum procedural safeguards each school district must provide to eligible students with disabilities (20 U.S.C. ß 1415). The New York State Legislature, in Article 89 of the Education Law, provides for special education in a manner consistent with the IDEA and confers additional procedural protections. One of those procedural protections is the requirement of an additional parent member of the CSE (Education Law ß 4402 [b][a][viii]; see also, 8 NYCRR 200.3 [a][viii]). The statute and accompanying regulation require that the additional parent member be present at the CSE meeting. This section was amended in 1999 to provide a single scenario by which the additional parent member may be excluded: "such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting" (Education Law ß 4402 [b][a][viii]; 8 NYCRR 200.3 [a][viii]).
The additional parent member is not a required member of the IEP team under the IDEA (20 U.S.C. ß 1414 [d][B]). The New York State Legislature could have amended Article 89 to eliminate the requirement of the parent member when it amended the relevant statutory provision in 1999. Instead, the Legislature in 1999 reaffirmed its mandate to have the additional parent member participate in the CSE process, by delineating the limited circumstance when the additional parent member need not participate. As is the case in other states, New York "lawmakers have built upon the federal floor created by the [IDEA] and have decided to provide the [disabled] children, within the state, with a level of educational services that surpasses the national minimum" (In Re Conklin, 946 F.2d 306, 318 [4th Cir. 1991][recognizing the distinction between federal and state education standards]; see also, Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982-83 [4th Cir. 1990][holding North Carolina statute created a broader definition of related services than that required by [the IDEA]).
The record fails to show that petitioner made an affirmative decision to participate in the CSE meeting without a parent member present. Petitioner's decision to participate in the CSE meeting with the knowledge that the additional parent member would not be in attendance does not constitute an affirmative request to exclude the additional parent member within the meaning of the regulation (Application of a Child with a Disability, Appeal No. 01-096). Accordingly, the CSE was improperly composed and respondent violated petitioner's procedural rights under Article 89 of the Education Law.
An IEP must meet "the requirements of state law if the state requires a level of substantive benefit greater than that required under federal law" (Burke County Bd. of Educ., 895 F.2d at 982-83). Although the lack of the additional parent member may not have violated the IDEA, the failure to include the additional parent member in the instant case is a clear violation of New York State law. It is well settled under previous decisions of the State Review Officer that an IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of proving that its recommended program was appropriate (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-013).
Accordingly, I find that the CSE meeting held on December 9, 2002 was improperly constituted. I further find that the IEP developed by that CSE meeting is void and must be annulled.
I have considered all remaining arguments offered in this matter and find them to be without merit with respect to the outcome of my determination.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officerís decision is hereby annulled; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 60 days from the date of this decision, the CSE shall re-evaluate petitionerís son to the extent necessary, given that the last CSE met nearly one year ago, and prepare a new IEP for the current year for the student in accordance with this decision.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
December 19, 2003
ROBERT G. BENTLEY