01-044

         Petitioner appeals from an impartial hearing officer's decision which found that the recommendation by respondent's Committee on Special Education (CSE) to place her son in a Modified Instructional Services - IV (MIS-IV) program was appropriate. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent has not answered the petition. State regulation provides that the notice with petition shall advise the respondent that if an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the State Review Officer. A decision of the State Review Officer was annulled by the New York Supreme Court because the decision was based on an independent review of the record, rather than the allegations in an unanswered petition (Arlington Cent. School Dist. v. State Review Officer of the New York State Educ. Dep't, 185 Misc. 2d 560 [2000]). However, that decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 C.F.R. § 300.510[b][2][i]), and to make an independent decision (20 U.S.C. § 1415[g]). The facts in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioner has attached an affidavit to her petition. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 93-20). Although the information set forth in the affidavit could have been presented at the hearing, I find that the affidavit will make the record complete, and I will exercise my discretion and accept it (Application of a Child with a Handicapping Condition, Appeal No. 91-25).

        Petitioner's son was five years old when the hearing was conducted in February 2001. He is classified as autistic and there is no dispute regarding his classification (Transcript pp. 8 and 10). He has severe asthma, and as a result has frequent absences from school (Exhibit 5). He also has a food allergy (Exhibit 5).

        The child began receiving early intervention services in his home in April 1998 when he was two years old (Transcript p. 207). During the summer of 1998, he attended a summer school program for severely autistic children (Transcript p. 207). He remained in that program through August 1999. In September 1999, the child attended the Howard Haber Early Learning Center (Haber) for preschool (Transcript p. 186). He was placed in a 12-month program which used Applied Behavioral Analysis (ABA) techniques. He remained at Haber through August 2000 (Transcript p. 190). At Haber, the child developed beyond his classmates academically, but he required considerable support behaviorally (Transcript pp. 188-89).

        Respondent's CSE met in April 2000 to determine an appropriate kindergarten program for the child for the 2000-01 school year (Exhibits 8 and B). The CSE recommended a 12-month Specialized Instructional Environment - III (SIE-III) program, with the related services of speech/language and occupational therapy (Exhibit B). In addition, the CSE recommended health services from a nurse for nebulizer treatments and administration of medication in the event of respiratory distress. Petitioner disagreed with the recommended program. She noted that her son's socialization skills were emerging and that his academic functioning was above the level of functioning of an SIE-III class.

        On June 8, 2000 the CSE reconvened and recommended that the child be placed in an MIS-IV integrated program (Exhibit A). It further recommended that the related services of speech/language and occupational therapy, as well as health services from a nurse continue. The child's individualized education program (IEP) notes that his behavior seriously interfered with instruction. To address his behavior, the CSE recommended a crisis management paraprofessional. It was petitioner's understanding that the crisis management paraprofessional would be trained in ABA (Transcript p. 224). Though petitioner was apprehensive about the larger class ratio, she was willing to try the program because she believed that her son was benefiting from socialization and had the necessary academic skills.

        The child was placed in an integrated MIS-IV class at P.S. 72 in September 2000 for the 2000-01 school year. After two weeks of attending the program, petitioner began to notice that her son was regressing (Transcript p. 217). He reverted to crawling and infantile eating. She also noticed a loss of language as her son stopped speaking in sentences, using one-word utterances. Petitioner contacted the school on several occasions to express her concern about her son's program (Transcript pp. 217-219). By letter dated October 26, 2000 to respondent's CSE, she requested that the CSE reconvene (Exhibit 1). She indicated that her son's placement was inappropriate, and questioned why his crisis management professional was not ABA trained as she had been led to believe at the June 2000 meeting. She noted that her son was experiencing severe regression, exhibiting self-injurious, self-stimulating and aggressive behavior, and having toileting accidents.

        In response to petitioner's letter, the CSE scheduled a meeting for December 20, 2000 (Exhibit 3). An updated social history and educational evaluation, two classroom observations, a teacher report and interview, and a speech/language and occupational therapy report were completed prior to the meeting (Exhibits 5, 6, 9, 10, 11, 12, 15 and 16). In addition, on December 6, 2000 a functional behavioral assessment was conducted and was used to develop a behavior intervention plan on December 20, 2000 (Exhibit 18).

        A district representative, a general education teacher, a social worker, a school psychologist, the child's speech provider, the health coordinator, the CSE parent member, and petitioner attended the December 20, 2000 CSE meeting. The child's regular education teacher did not participate in the meeting. At the hearing, he testified that he was not invited to attend the CSE meeting, nor was he asked to submit any information regarding the child's functioning for purpose of the child's review (Transcript p. 50). The child's special education teacher participated by telephone for a short portion of the meeting (Transcript pp. 154 and 173-74).

        At the meeting, the parent expressed concern that her son was regressing (Transcript p. 225). She further discussed her belief that her son required special behavior intervention such as ABA to benefit from the integrated placement. The CSE advised petitioner that it was not possible to provide a paraprofessional trained in ABA in the child's MIS-IV program (Transcript p. 132). It offered to place the child in an SIE-III program that did use ABA, but most of the participants at the meeting agreed that it was not an appropriate placement for the child (Transcript p. 122). The CSE did not review the child’s goals and objectives, nor did it discuss a behavioral intervention plan (Transcript pp. 229, 233). Additionally, though the IEP included a goal linking school and home, petitioner was not provided any information on how that goal would be accomplished (Transcript p. 231).

        On December 29, 2000, petitioner requested an impartial hearing seeking modifications to her son's program, including an increase in her son's speech/language services as required by 8 NYCRR 200.13, ABA implemented consistently by a trained behavioral paraprofessional, and an appropriate behavior intervention plan. She also challenged the composition of the December 2000 CSE meeting claiming that her son's regular education teacher was not in attendance.

        The hearing was held on February 2 and 28, 2001. The hearing officer rendered his decision on April 2, 2001. He found nothing in applicable law or regulations that required that the child’s general education teacher participate in the review. He further found that when the child had more than one teacher, there was no requirement that all of his teachers participate in the review. He determined that it was sufficient that the special education teacher participated. The hearing officer also found that there was evidence that the child had benefited from the program recommended by respondent's CSE. Accordingly, he found that the CSE had provided the child an appropriate education in the least restrictive environment.

        Petitioner appeals from the hearing officer's decision on several grounds. Initially, she claims that the CSE was not validly composed because it did not include her son's regular education teacher. The Individuals with Disabilities Education Act (IDEA) was amended in 1997 to provide that the CSE must include at least one regular education teacher of the child if the child is or may be participating in a regular education environment (see also 34 C.F.R § 300.344[a][2] and 8 NYCRR 200.3[a][1][ii]). Federal regulations further require that the regular education teacher must, to the extent appropriate, participate in the development, review, and revision of the child's IEP. This includes assisting in determining appropriate behavioral strategies and supplemental aides, services and program modifications or supports for the student. (34 C.F.R. § 300.346[d]). In its official interpretation of the regulations, the U.S. Department of Education has indicated that the regular education teacher who serves as a member of the child’s IEP team should be a teacher who is or may be responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child (34 C.F.R. Part 300 Appendix A Question 26).

        There is no factual dispute that the child's regular education teacher did not attend the CSE meeting, nor was he invited, nor was he asked to submit any information regarding the child's functioning for purpose of the review. The Board of Education maintains that because the child was in an integrated class with both a regular education teacher and a special education teacher, it satisfied the regulatory requirement by having the child's special education teacher participate as well as a general education teacher that it used for many of its reviews.

        The child's special education teacher is also a mandatory member of the CSE team, and is required to be present at the CSE meeting at which the child's IEP is prepared. The child's special education teacher testified that she participated in the meeting by telephone, but not for the entire meeting (Transcript p. 174). There is no information in the record indicating the extent to which she participated in discussions about the child's special education needs. Based upon the information before me, I am unable to find that the presence of the child's special education teacher, who participated in the meeting on a limited basis, and a general education teacher, who serves as the general education teacher member at many of the CSE reviews, is sufficient to establish that the CSE was validly constituted.

        Petitioner also appeals from the hearing officer's determination that respondent offered her son an appropriate educational program. Respondent has the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). In meeting its burden of proof, respondent must show that the CSE which prepared the IEP was validly constituted (Application of Child with a Disability, Appeal No. 95-8; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 90-16).

        I find that the Board of Education has not met its burden of proof of demonstrating the appropriateness of its program because the CSE was not properly composed, and that it must reconvene with each of the required members. However, this finding does not address petitioner's request for specific modifications to her son's IEP. She is seeking that language services be provided in accordance with 8 NYCRR 200.13(a)(4). She also is seeking transitional support services as required by 8 NYCRR 200.13(a)(6) and parent counseling and training as required by 8 NYCRR 200.13(d). The services listed above are mandated by state regulation and must be provided to the child and his parent. Additionally, petitioner is seeking more consistent communication from her son's teachers to assist her with follow-up interventions at home and she is requesting support during the extensive absences due to his medical conditions. Further, there appears to be some confusion with respect to whether the child should be provided extended year services and whether his behavior intervention plan is appropriate. It is unclear from the record whether and to what extent these issues were raised at the December 2000 CSE meeting. However, as the child's special education teacher's participation at the meeting was limited and his regular education teacher did not participate, the CSE should address these issues when it reconvenes.

        Petitioner is also requesting that her son be provided with ABA instruction implemented by a trained behavioral paraprofessional. However, the precise teaching method to be used in instructing the child is a matter to be left to his teacher (Matter of a Handicapped Child, 23 Ed Dept Rep 269; Matter of a Handicapped Child, 23 Ed Dept Rep 308). I note that there is some evidence suggesting that because ABA instruction was not available in an MIS-IV program, the CSE offered an SIE-III program where ABA instruction was provided. However, the consensus at the meeting was that the child would not have been appropriately placed in an SIE-III program. I caution the CSE to look at the individual needs of the child as well as the grouping requirements when making a program recommendation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent promptly convene a properly constituted CSE meeting to recommend an appropriate educational placement for the child consistent with his needs and the tenor of this decision.