02-013

         Petitioner appeals from the decision of an impartial hearing officer upholding the recommendation of respondent’s Committee on Special Education (CSE) to place petitioner’s son in a self-contained BOCES classroom for the 2001-02 school year. The appeal must be sustained in part.

        Petitioner claims that the hearing officer should have recused herself from hearing the case, because she was once associated with the law firm representing respondent school district. I must disagree. I find that the hearing officer followed proper procedure by promptly disclosing at the hearing her potentially conflicting interest (Application of a Child with a Disability, Appeal No. 98-51). She stated that she was once was a temporary employee of the firm in a field other than education law, and that she has had a personal acquaintance with one of the partners since law school. When she asked petitioner’s attorney whether he had any concerns about her impartiality, he stated that he did not (Transcript p. 13). A party must note an objection to the hearing officer’s appointment early in the proceeding (Application of a Child with a Disability, Appeal No. 98-33). Petitioner did not raise the issue of the hearing officer’s impartiality until after her decision was rendered.

        When the hearing began on October 19, 2001, petitioner’s son was 16 years old and a tenth grader at respondent’s high school. His classification had been changed from learning disabled to multiply disabled at the August 30, 2001 CSE meeting. Petitioner does not dispute that classification (Exhibits 15, 16). Pursuant to a pendency placement, he was in taking two ninth grade and two tenth grade general education classes, with resource room and counseling, and a behavioral intervention plan (BIP) in place (Exhibit 13). On the last day of the hearing, the parties negotiated an additional resource room period per day and assigned the student to a math class with an additional staff member present (Transcript pp. 923-24, 938).

        The student attended a preschool Head Start program, then attended kindergarten and first grade in another district (Exhibit C3). At the end of first grade, he was classified as emotionally disturbed (ED), and was retained in first grade in a self-contained Board of Cooperative Education Services (BOCES) class. His family moved to respondent district half-way through his second year of first grade. He completed that year in a 12:1+1 classroom, and he remained in a 12:1+1 self-contained class in respondent’s district through the second, third and fourth grades (Exhibits C4, C7).

        When respondent’s CSE met for the student’s triennial evaluation at the end of fourth grade in 1996, it changed his classification from ED to learning disabled (LD), based on a determination that his learning and attention deficits were hindering his progress more than his emotional needs (Exhibit C1). He was placed in general education classes with resource room services, a placement he maintained until the year at issue (Exhibit C7). The record reflects that in March 1998, petitioner’s son began taking Ritalin during school hours, because he had an attention deficit hyperactivity disorder (ADHD) (Exhibit 6).

        In a May 1998 independent psychological evaluation, the student attained a verbal IQ score of 91, a performance IQ score of 82, and a full scale IQ score of 86 on the Weschler Intelligence Scores for Children - III (WISC-III). He appeared to have difficulties with processing speed, visual sequencing, verbal expression and written language. The evaluator reported that the student had visual-perceptual-spatial difficulties (Exhibit C2). When tested a year later, the student achieved a verbal IQ score of 95, a performance IQ score of 111, and composite IQ score of 103 on the Kaufman Brief Intelligence Test (KBIT). On the Kaufman Test of Educational Achievement, he scored in the average range in decoding and reading comprehension scores, but scored below average in math and spelling (Exhibits C4, 56).

        In June 2000, at the end of the student’s eighth grade year, respondent conducted a functional behavioral assessment (FBA) and developed a BIP to address long-standing disruptive behaviors he exhibited in the classroom (Exhibits 7, 8, 26). The plan included the use of a three warning system. It also contained a system to impart organizational skills, and additional accommodations, such as a place to go for assistance or when feeling frustrated. The record reveals that the student was excluded from eighth grade graduation due to failing grades, but was promoted to ninth grade based on social and other considerations (Exhibits D5, D6).

        In August 2000, the CSE developed an individualized education program (IEP) for the student’s ninth grade year. It decided that he should remain in general education classes, with one resource room period a day, and counseling twice a week. On his IEP, the CSE noted that he did not make good use of class time, failed to complete assignments, and sometimes refused assistance in the resource room. It also noted that he had difficulty in his relationships with peers and adults, exhibited inappropriate behavior, and had difficulty judging the effect of his behavior. The student’s IEP goals and objectives addressed socialization, counseling, math, organizational skills and expressive writing (Exhibit G6).

        At the beginning of the 2000-01 school year, the student’s mother requested an assistive technology (AT) evaluation and that her son be provided a 1:1 aide (Exhibit D11). Respondent’s director of special education indicated in a letter that an AT evaluation would be scheduled, but that an aide would not be necessary, because the student would have enough support from his resource room teachers who were scheduled to provide consultant or "push in" services in his academic classes (Exhibit D8).

        During the 2000-01 school year, the student reportedly lacked motivation. His resource room teacher testified that most of her time was spent prompting him to pick his head up off the desk, open his notebook and nudge him to do his work (Transcript p. 642). She stated that he often refused to do assignments (Transcript pp. 109, 156-57). This was despite having a duplicate set of textbooks at home and with several modifications to his workload (Transcript p. 153). The student rarely came to class on time (Transcript pp. 351, 455). He reportedly skipped after-school detention and after-school academic help (Exhibit 60; Transcript p. 178).

        The CSE held several meetings during the 2000-01 school year to discuss the child’s progress and behavior (Transcript p. 798). In November 2000, his BIP was amended to provide a five-step approach to limit setting (Exhibit 9). However, despite the amended BIP, the student was involved in a large number of disciplinary referrals that year. The assistant high school principal testified that the student’s behaviors impeded his learning and the learning of others, and sometimes posed a physical danger to himself or others (Exhibit C7; Transcript pp. 480-84). A discipline log revealed that petitioner’s son had reportedly punched and harassed other students, smoked, used foul language and was disruptive in class (Exhibit 17). His case manager testified that the student had allegedly slammed other students into lockers, stood on top of a desk, drew an obscene picture, sabotaged a computer, threw food in the cafeteria, and pretended to drop a weight on a student’s head (Exhibit 60; Transcript pp. 152, 161). He also reportedly stole things from others (Transcript p. 186). His mother denied the extent and severity of his behavior problems, characterized an obscene drawing as typical adolescent behavior (Exhibit 65; Transcript pp. 173, 860).

        In February 2001, the CSE decided to remove the student from his Computerized Assisted Drawing (CAD) class for behavioral and academic reasons (Exhibits D-14, 6). On March 2, 2001, the student’s teachers referred him to the CSE for program review due to his poor grades and dangerous and inappropriate behavior (Exhibit 23). At a March 26, 2001 meeting, the parties denied his mother’s request to return him to the CAD class, and the team first mentioned the possibility that he attend a program outside of the high school (Exhibits 13, 14, 60 p. 125; Transcript pp. 181-82, 238-39). By settlement agreement dated May 17, 2001, he was reinstated to the CAD class on May 21, 2001 with a 1:1 aide (Exhibits 17, 28).

        The CAD teacher, and his aide testified that, even with the assistance of the aide, the teacher was required to spend 50-70 percent of his time addressing the student’s inappropriate behaviors (Exhibits 15, 19; Transcript pp. 348, 458). Other teachers testified that disproportionate attention paid to petitioner’s son hindered their instruction of the other students (Exhibit G3; Transcript pp. 125-127). The student passed the CAD course with a grade of 65, and passed English with a 78 and global studies with a 70. He failed math, and earth science, however, because he did not do his homework or science labs (Exhibit 60 p. 72; Transcript pp. 108-09, 138). He also failed physical education, because he refused to participate and change into his gym clothes (Exhibits 31, 32, 60, 64; Transcript pp. 108, 135).

        The CSE convened for the student’s annual review on May 30, 2001. The CSE team, the mother, and her educational advocate discussed the student’s behavior and performance (Exhibit 11; Transcript pp. 850-51). His mother suggested that the student’s poor performance and behavior was due to a visual processing deficit, rather than a lack of motivation (Exhibits 38, 65, E3). The CSE agreed to research the issue of a visual processing evaluation and reconsider it (Exhibit 65). Respondent ultimately reimbursed petitioner for a vision evaluation that was performed in October 2001 (Exhibit G4; Transcript p. 602). The parties agreed that psycho-educational, speech language (S-L), occupational therapy (OT), and developmental pediatric evaluations would be performed (Exhibits 40, 65). Petitioner requested and the district agreed to provide the student with a summer program at BOCES (Exhibit 41; Transcript pp. 183-84). The CSE discussed the possibility of placing the student in a self-contained BOCES class, where his behavior could be more easily addressed, but the decision was tabled when the parent appeared to be in disagreement (Transcript pp. 466, 470, 870-71).

        On or about June 6, 2001, the student’s mother toured the proposed BOCES program with the BOCES behavioral consultant (Transcript p. 862). When the CSE reconvened on June 20, 2001, the parties agreed to the BOCES summer program, but the decision regarding his 2001-02 program was tabled pending the results of evaluations (Exhibits 12, 41). The student attended the summer program for a few days, but withdrew because he allegedly became car sick on the school bus (Transcript pp. 817, 504-05).

        On June 27, 2001, the school psychologist conducted a psychological evaluation. On the WISC-III, the student scored a verbal IQ of 92, a performance IQ of 84 and a full scale IQ of 87, placing his level of functioning in the low average range. His scores on the Woodcock-Johnson Psychoeducational Battery-Revised (WJ-R) were largely commensurate with his cognitive ability. On the Conner’s Teacher Rating Scales he received scores in the clinically significant range for conduct problems, hyperactivity, inattentive-passive, and on the Connor’s Parent Rating Scale, he was significant for learning problems, and psychosomatic issues. The psychologist noted the student was obsessed with professional wrestling. He concluded that the student had not been successful in general education classes, even with the support of resource room, counseling and a BIP. He opined that the student should be placed in a setting that would focus on his behavioral/emotional difficulties (Exhibit C7).

        When the CSE convened to complete the annual review on August 30, 2001, it reviewed the psychological evaluation. The student’s classification was changed from learning disabled to multiply disabled, based on his learning disability, ADHD and his social-emotional problems. Many more counseling and behavioral goals were added to his IEP, and an FBA was to be included (Exhibits 15, 16). The school psychologist noted that the student’s conduct was his major impediment and created a risk to himself and other students (Exhibits 64, 65). The BOCES consultant, who met with the student on several occasions, testified that the student was noncompliant, denied his involvement in incidents, was disrespectful toward adults, disruptive in class, and not motivated to do academic work (Transcript pp. 415-19). The school psychologist and the resource room teacher noted that the BIPs had been ineffective because the student did not adopt its strategies.

        There was consensus among the staff that they had not found any strategies that modified the student’s behavior (Exhibits 64, 65; Transcript pp. 119-120). They agreed the high school setting was not structured enough for the student (Transcript pp. 230-31, 615-16). The CSE determined to place the student in a 12:1+1 BOCES class, with a writing lab and counseling, in order to better address his behavioral and management needs (Transcript p. 297). The student’s mother was opposed to a BOCES placement and requested either a self-contained class in the district or additional push-in services and a 1:1 aide for non-structured activities (Exhibits 64, 65).

        On September 1, 2001, petitioner requested an impartial hearing because she disagreed with the proposed program at BOCES, and requested a pendency placement in the regular classroom, with resource room and counseling, a consultant teacher for academics and lab and a personal aide for unstructured areas of the school and a BIP (Exhibit 2). The hearing concluded on November 9, 2001, and the hearing officer rendered her opinion on January 17, 2002. She ruled that petitioner had waived the right to have a parent member present at the August 30, 2001 CSE meeting when she attended the meeting with an advocate and neither she nor her advocate objected to the absence of a parent member, and her attorney did not raise the issue at the hearing. She further found that the parent waived her five-day notice of the August 30, 2001 meeting by agreeing to the meeting in a August 23, 2001 phone conversation.

        The hearing officer ruled that the BOCES program recommended by the CSE for the student’s 2001-02 school year was appropriate for the student, and that the CSE had considered supplemental aids and other services before recommending the more restrictive placement. She found that the CSE conducted a thorough annual review, despite the fact that several recommended evaluations had not been conducted, because it had enough information to make its determination. However, she directed the CSE to reconvene for the purpose of considering the additional evaluations.

        Petitioner claims that the IEP was procedurally flawed because there was no prior written notice of the August 30, 2001 meeting, no timely prior written notice of the proposed change of placement, and there was no parent member of the CSE present at the meeting. In addition, petitioner argues that the IEP was inappropriate, because the CSE did not conduct a thorough annual review, did not provide an education in the least restrictive environment (LRE), the goals and objectives were not measurable and there was no transition plan. The petition requests that the IEP be annulled, that the district be ordered to conduct a thorough evaluation of the student and an appropriate IEP that provides for placement in an in-district program.

        I will first address the issue of the CSE composition and the absence of a parent member of the CSE team. It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27; Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.

        The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 01-079).

        There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review. In the notice of the annual review for 2001-02, originally scheduled for May 14, 2001, the school district had listed a parent member as a participant (Exhibit 35). However, when the date of the meeting was changed to May 30, 2001 to accommodate petitioner’s schedule, no parent member attended the rescheduled meeting (Exhibits 36, 65). Petitioner was accompanied by her parent advocate, who signed in the space provided for a parent representative when he was told where to sign (Exhibit 11; Transcript p. 844).

        When the June meeting was rescheduled, from June 4, 2001 to June 20, 2001, the parent member who was originally scheduled to attend was again absent from the meeting, and the mother was accompanied by a parent advocate. (Exhibits 12, 37, 39). In the notice of the August 30th meeting, no parent member was even listed, and none attended (Exhibits 16, 44, 65; Transcript p. 803).

        Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

        I note that whether the recommended BOCES placement was appropriate or constituted the LRE is a moot point at this juncture, since the school year in question has concluded. The State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which will have no impact on the parties (Application of a Child with a Disability, Appeal No. 99-25, Application of a Child Suspected of Having a Disability, Appeal No. 95-52).

        However, I will direct the CSE to promptly convene to consider the results of the evaluations it approved at the 2001-02 annual review, including the OT and speech-language evaluations, the vision processing evaluation, and the developmental pediatric examination, to make certain that all aspects of the student’s health and cognitive functioning have been properly considered in determining his placement, if it has not already done so.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled upholding the appropriateness of student’s IEP for the 2001-02 school year.

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent’s CSE shall review the student’s program in accordance with the tenor of this decision.