98-082

      Petitioners appeal from an impartial hearing officer's decision which held that respondent's committee on preschool special education (CPSE) had correctly recommended that their child be enrolled in a full-day preschool school program for the 1998-99 school year, but which ordered the CPSE to reconvene and reconsider its recommendation because the CPSE lacked its required parent member when it recommended the full-day placement. They seek a determination that the child should have been placed on a half-day basis in the Warwick Preschool in Monroe, New York, notwithstanding the testimony by the Director of the Warwick Preschool that the school's program would not have been appropriate for the child. The appeal must be sustained in part.

        Petitioner's son will be four years old next week. He has been diagnosed as having cerebral palsy and Wolff-Parkinson-White Syndrome, a disorder of the heart. The child received special education in his home, as well as speech/language therapy, occupational therapy, and physical therapy pursuant to the Orange County Health Department's early intervention program, which provides services of that nature to children up to the age of three years (see New York State Public Health Law Sections 2540-2559-b).

        In anticipation of the child coming within the jurisdiction of respondent's CPSE for the 1998-99 school year, he was evaluated by the Warwick Preschool in March, 1998. The reports of that evaluation are not in the record which is before me. However, the individualized education program (IEP) which the CPSE prepared on May 15, 1998 indicates that the Warwick Preschool evaluation team recommended that the child be placed in a half-day preschool special education program, with speech/language therapy, physical therapy, and occupational therapy (Exhibit 1). The IEP further indicates that the CPSE considered the possibility of a full-day program, which was unacceptable to petitioners. The comment section of the IEP indicated that: "the Committee on Preschool Special Education agreed not to make a placement decision at this time, and to reconvene a meeting at a later date. The parents will investigate the possibility of updated evaluations closer to the beginning of the school year, because they believe the Warwick Preschool is a more appropriate setting."

        In a letter dated June 11, 1998 (Exhibit B) respondent's Director of Pupil Personnel Services informed petitioners that respondent had approved the CPSE's recommendation of May 15, 1998 that their son attend the Warwick Preschool beginning on September 2, 1998. The Pupil Personnel Services Director testified at the hearing that his letter to petitioners was a result of a clerical error, which he had explained to petitioners.

        The child was further evaluated at the George Robinson Center for Child Development (Robinson) during the months of July and August, 1998. Robinson's educational evaluator reported that the child was distractible and inattentive during her initial session with him, but that in a second session he had achieved age equivalent scores of 21 months for gross motor skills, 14 months for fine motor skills, 15 months for cognition, 10 months for language, 24 months for social skills, and 16 months for self-help skills, using the Early Learning Accomplishment Profile. The child was 33 months old when tested. The evaluator noted that the child exhibited significant developmental delays, and she recommended that he be enrolled in a special education program.

        The Robinson speech/language pathologist who evaluated the child noted that earlier testing indicated that he might have a mild hearing loss. She further noted that it was difficult to engage the child in formal assessment tasks. She reported that the child's oral motor/feeding skills appeared to be below age level expectations. The speech/language pathologist also reported that the child had achieved a developmental age score of 11.25 months for language comprehension, and 9.00 months for language expression. She concluded that the child exhibited severe deficits in his receptive and expressive language development and speech sound development.

        A Robinson physical therapist reported that the child used a stable but immature gait, and that he could perform most gross motor skills to the 18 months level. She recommended that the child continue to receive physical therapy. The child also received an occupational therapy evaluation at Robinson using the Peabody Developmental Fine Motor Scale. The evaluator reported that the child's fine motor skills were generally within the 15 to 17 months range, with some scattered skills in the 24 to 29 months range. She recommended that he continue to receive occupational therapy.

        Respondent's CPSE met again on August 13, 1998. The IEP which was prepared on that date (Exhibit 2) indicated that the CPSE consisted of respondent's Pupil Personnel Services Director, a teacher, and a school psychologist. Both petitioners attended the meeting, as did the Director of Warwick Preschool, a school psychologist from the Warwick Preschool, and a Robinson educational evaluator. The results of the child's evaluation by the Robinson team were reviewed. The CPSE reportedly intended to recommend that the child be placed in a full-day preschool special education program. However, petitioners objected to a full-day placement. They asked the CPSE to recommend that the child be placed on a half-day basis in the Warwick Preschool, notwithstanding the fact that the Director of the Warwick Preschool advised the CPSE that her school's program was not appropriate to meet the child's needs. Ultimately, the CPSE recommended that the child continue to receive the itinerant special education instruction in his home, plus speech/language therapy, physical therapy, and occupational therapy, which he had received while in the Orange County early intervention program. The child reportedly continued to receive those services during the 1998-99 school year.

        By letter dated August 24, 1998, petitioners requested that an impartial hearing be held to review the CPSE's refusal to recommend a half-day placement for the child in the Warwick Preschool. Respondent appointed an impartial hearing officer, who scheduled a hearing to take place on October 9, 1998. The hearing was thereafter rescheduled at petitioners' request to be held on October 26, 1998. At the hearing on that date, petitioners requested that the hearing officer find that the IEP prepared for the child at the August 13, 1998 CPSE meeting was a nullity because the CPSE did not include a parent member, as required by Section 4410 (3) (a) of the Education Law. They asserted that the CPSE had recommended that their son be placed at the Warwick Preschool on a half-day basis at its May 15, 1998 meeting, and that the child's subsequent evaluation by Robinson was intended to support that placement. Petitioners asked the hearing officers to order respondent to place their child in the Warwick Preschool on a half-day basis for the 1998-99 school year.

        Respondent introduced evidence to show that this child's level of functioning was significantly different from that of the other youngsters in the one Warwick Preschool class in which there was an opening, and that his needs and abilities were closer to those of the children in a full-day preschool class of the Preschool Learning Experience, an approved preschool which is located in Middletown, New York. The Director of the Warwick Preschool testified that at the August CPSE meeting she had explained that her school's program was not appropriate for the child, and she opined that the child would be more appropriately placed in the Preschool Learning Experience. A school psychologist for the Warwick Preschool who had attended the May 15, 1998 CPSE meeting testified that the CPSE had not made a final recommendation for the child's placement at that meeting. The Robinson educational evaluator testified that she believed that the child would benefit from a full-day educational program, and that he would have been inappropriately placed in the half-day program at the Warwick Preschool.

        In his decision dated November 19, 1998, the impartial hearing officer found that the parent member's attendance at the August CPSE meeting was mandatory, although he described it as a peripheral issue. He noted that the May 15, 1998 IEP for the child listed the Warwick Preschool as his placement, but he found that it was erroneous and clearly at variance with the part of the IEP which is quoted above indicating that no decision about placement had been made. Therefore, he declined to order respondent to implement the May 15, 1998 IEP. The hearing officer found that placement at the Warwick Preschool was not an option because it did not have an appropriate program for the child. He further found that the CPSE's recommendation in August, 1998 would have been appropriate if the CPSE had been validly constituted. He directed the school district to reconvene its CPSE to "revisit" the August IEP, and indicated that it could consider a placement at the Warwick Preschool if an appropriate vacancy existed, and determine whether a full- day program was still the recommendation of the CPSE.

        The initial question is whether petitioners are aggrieved by the hearing officer's decision, since he, in effect, agreed with them that the CPSE's August 13, 1998 recommendation was a nullity. I note that petitioners have also raised an alleged procedural due process issue about the conduct of the hearing. Three individuals who were prepared to testify on behalf of petitioners arrived at the beginning of the hearing, and were told they would have to wait until after respondent had presented its case. They apparently did not stay until respondent had rested, and therefore they did not testify at the hearing. I find that there was no denial of due process because respondent had the burden of proof about its CPSE's recommendation, and it was entitled to present its case first.

        With respect to the substantive issue of the child's educational placement, it is well established that an IEP for a school-age child which was prepared by an invalidly composed committee on special education (CSE) is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child Suspected of Having a Disability, Appeal No. 95-27). I find the same reasoning should be applied to an IEP which was prepared by an invalidly composed CPSE. In the absence of a valid IEP, I find that it was error for the hearing officer to determine the child's need for a full-time placement (Application of a Child with a Disability, Appeal No. 94-13). He should have simply remanded the matter to the CPSE Although the hearing officer's remarks about a full-time placement are arguably dictum, I will sustain petitioners' appeal to the extent of annulling the hearing officer's finding with respect to a full-day placement. The parties should note that I have done so without making a determination about the merits of a full-day placement for the child. The CPSE should, if it has not already done so, reconsider its August 18, 1998 recommendation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it purported to determine that the child required a full-day placement during the 1998-99 school year.