02-028

         Petitioner appeals from an impartial hearing officer’s determination that respondent’s Committee on Special Education (CSE) had recommended an appropriate placement for her daughter for the 2001-02 school year. The appeal must be sustained in part.

        Before reaching the merits of petitioner’s appeal, I must address two procedural issues. First, 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, and a decision will be rendered thereon (8 NYCRR 279.3). However, I am required 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]), notwithstanding respondent’s failure to answer (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]). Therefore, the facts alleged in the petition will be deemed to be true unless found inconsistent with the evidence in the record.

        Second, both parties have submitted memoranda of law and have attached exhibits that were not presented to the hearing officer because the information was not available at the time of the hearing. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer’s decision, if such evidence was unavailable at the time of the hearing or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 95-41). I will accept petitioner's additional exhibits because they were unavailable at the time of the hearing, but I decline to accept those submitted by respondent in light of its failure to submit an answer. For the same reason, I decline to accept respondent’s memorandum of law.

        At the time of the impartial hearing, petitioner’s daughter was ten years old and attending a 15:1 self-contained special education class at respondent’s Guardino elementary school. The student has been diagnosed as having Williams syndrome, a genetic disorder often accompanied by significant learning difficulties and below average coordination, strength, balance, and fine motor development. A private psychologist who had evaluated the student in the fall of 2001 reported that her cognitive scores were in the moderately retarded range, and that she was academically functioning between the pre-kindergarten and early kindergarten level (Exhibit P-22).

        Petitioner's daughter had transferred into respondent's district from the Copenhagen Central School District in the spring of the 1999-2000 school year. Respondent's CSE had identified the child as other health impaired and placed her in a 15:1 primary education class for the remainder of that school year. Her individualized education program (IEP) indicated that she was to be mainstreamed at the teacher's discretion, and her teacher testified that she was mainstreamed for art, music and gym (Transcript p. 175). She received speech/language therapy one hour per six-day cycle (Exhibits SD-12, 13).

        On May 17, 2000 the CSE met to develop the student's IEP for the 2000-01 school year. The CSE recommended that petitioner's daughter be placed in a 15:1 special class with two 30-minute sessions of speech-language therapy and two 30-minute sessions of occupational therapy during each six-day cycle. The IEP indicated that the student should be mainstreamed at the teacher's discretion (Exhibits SD-14, 15). The student was reportedly mainstreamed for music, art and gym during the 2000-01 school year (Transcript p. 175). She reportedly functioned at a pre-kindergarten to early kindergarten level in math, reading and writing. The other students in the class were functioning at between first and second grade level in these subjects (Transcript pp. 165-166). Her teacher indicated that the only progress that the student made that year was in the area of phonemic awareness (Transcript pp. 150, 167-168), and the teacher requested a CSE meeting to discuss the appropriateness of the student's placement.

        On February 14, 2001, the CSE discussed placing the child in a 12:1+1 program at Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Education Services (BOCES). Petitioner did not attend that meeting, and the CSE deferred making a placement recommendation until petitioner met with it on February 28, 2001 (Exhibit SD-10). During that meeting, petitioner disagreed with the proposed 12:1+1 BOCES placement because it was located outside of respondent's district, but she indicated that she would arrange to visit the program. The CSE recommended that petitioner's daughter remain in her 15:1 placement at the local elementary school (Exhibits P-7, 8, 9).

        On April 30, 2001, the student was evaluated by one of respondent's school psychologists evaluated as part of her triennial review. The psychologist noted that the student's adaptive behavior skills were stronger than her scores on verbal measures of intelligence, and that her achievement test scores were commensurate with her ability. He recommended that she be identified as mentally retarded rather than other health impaired, and that she be placed in a setting that emphasized small group instruction, consistent repetition, and hands-on acquisition of learning (Exhibit SD-7).

        The CSE reviewed the school psychologist's report on May 3, 2001. Petitioner did not attend the meeting, but petitioner's mother was present. The CSE discussed placing the student in a 12:1+1 BOCES program for the remainder of the 2000-01 school year. Petitioner's mother disagreed with the BOCES placement, and the CSE recommended that the student remain in respondent's 15:1 program (Exhibit SD-2).

        On June 13, 2001, the CSE discussed the 12:1+1 BOCES placement for the student for the 2001-02 school year. On the student's IEP, the CSE failed to make a specific placement recommendation, but noted that all of its members except the student's parent agreed that a 12:1+1 setting was required. It further noted that she would remain in the 15:1 program pending an expected due process hearing concerning the appropriateness of the proposed BOCES placement (Exhibit SD-1).

        On June 18, 2001, petitioner requested an impartial hearing (Exhibit P-20). Her student attended a 15:1 class, but was mainstreamed for music, art, and physical education, in respondent's elementary school during the 2001-02 school year. An aide assigned to the student's class spent approximately 20 percent of her time working with the student (Transcript pp. 295-297). Despite this assistance, the student's teacher reported that the student had very limited academic skills and had not made any progress since the beginning of the 2001-02 school year (Transcript pp. 287-290).

        The impartial hearing was conducted on November 5, 6, and 7, 2001. On the last day of the hearing, the hearing officer ordered the CSE to reconvene to make changes in the IEP prior to his final decision on the appropriateness of the program recommended by the CSE, because the June 2001 IEP did not appear to be the CSE's final recommendation (Transcript pp. 371-378). In addition, the CSE chairperson had testified that he never considered that IEP to be final (Transcript p. 103). The hearing officer did not, however, schedule an additional hearing date following the development of the new IEP.

        On November 27, 2001, the CSE recommended a twelve-month 12:1+1 BOCES placement for petitioner's daughter for the 2001-02 school year. She was to receive two sessions of speech-language therapy, occupational therapy, and physical therapy, but it is unclear whether these sessions were to be provided on a six-day cycle or otherwise. Additionally, she was to be mainstreamed for music, art, and adaptive physical education. An assistive technology evaluation was to be completed as soon as petitioner provided consent (Exhibit SD-A). It must be noted that petitioner did not attend the November 27 CSE meeting. The minutes of the November 27, 2001 CSE meeting indicate that a notice of the meeting had been sent to petitioner on November 13, 2001, and that the CSE chairperson had attempted to contact petitioner and her mother by telephone prior to the meeting (Exhibit SD-A).

        In a decision dated February 12, 2002 the impartial hearing officer accepted the November 27, 2001 IEP, and concluded that the 12:1+1 BOCES program was an appropriate placement for petitioner's daughter. He further ordered that a music therapy evaluation be conducted, and that the CSE meet as soon as possible for the student's annual review.

        Petitioner contends that the impartial hearing officer erred in concluding that the 12:1+1 BOCES program was in the least restrictive environment for her daughter. She also argues that she did not receive proper notice of the reevaluation of her daughter and that the November 27, 2001 IEP was invalid because she was not present at the CSE meeting.

        Before I address petitioner's arguments, I note that the November 27, 2001 IEP was developed and submitted to the hearing officer after the evidentiary portion of the hearing was closed. Moreover, the IEP is marked "draft". The hearing officer's decision does not include an exhibit list so that it is not possible to tell precisely what documents he considered in reaching his decision. Respondent's failure to answer the petition precluded it from seeking leave to submit additional documentary evidence. In light of the fact that the hearing officer relied on the November 27, 2001 IEP in making his determination and that petitioner raises several issues regarding that IEP, I will consider it. For future reference, however, I note the importance of having all evidence introduced during the hearing, unless otherwise stipulated by the parties, and of incorporating a complete exhibit list in the decision of the hearing officer.

        A board of education bears 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]). To meet its burden, a board of education must show that it complied with both the federal and state procedural safeguards and that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Federal and state regulations permit a school district to conduct a CSE meeting without the parent in attendance if the district is unable to convince the parent to attend. In such instances, the school district must maintain a detailed record of its attempts to arrange a mutually agreed upon time and place (34 C.F.R § 300.345[d]; 8 NYCRR 200.5[d][3]). As noted above, the minutes of the November 27, 2001 CSE meeting indicate that efforts were made to notify petitioner of the meeting. Such minutes do not, however, constitute the detailed record of attempts to arrange a mutually agreed on time and place required by the regulations. Moreover, no record was developed concerning efforts to obtain parental participation in the meeting due to the failure of the hearing officer to reconvene the hearing following the development of the November 27, 2001 IEP, and no additional documentation of such efforts was submitted by the board in this appeal due to its failure to file an answer. Under the circumstances presented, I find that the record is insufficient to establish that respondent made sufficient efforts to include petitioner in the November 27, 2001 CSE meeting, and I conclude that the meeting was, therefore, improperly conducted.

        Respondent also failed to provide proper notice of the student's reevaluation as is required by section 200.5(a) of the Regulations of the Commissioner of Education (Transcript pp. 94-99). Specifically, respondent did not provide a written description of the proposed evaluation and the use to be made of the information, or indicate the parent's right to submit evaluative information or to request that a test or assessment be included in the evaluation (8 NYCRR 200.5[a][5][i]).

        Additionally, respondent failed to establish the appropriateness of the class recommended for petitioner's daughter because it failed to adequately describe the proposed class. State regulation requires that children in special education classes be appropriately grouped using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [g][2]). The similarity of abilities and needs may be demonstrated through the use of a profile of a child's proposed class together with the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 94-7; Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 93-13). Although it appears that the BOCES special education teacher was present at the November 27, 2001 CSE meeting (SD-A), she did not testify at the hearing. It also appears that the only documents in the record that describe the 12:1+1 placement are an outline of the program for the 2000-01 school year and a class profile that lists some of the students' IQ scores, reading scores, and math scores. There is no description of the students' behavioral and management needs (Exhibits P-19, SD-20). In addition, it must be noted that respondent's CSE chairperson testified that he had limited familiarity with the BOCES program because he observed it only once approximately two years prior. Although one of the student's special education teachers testified that she was familiar with the program, during cross-examination she admitted that she had not visited the program since the 1999-2000 school year (Transcript pp. 262-263). In sum, the record contains insufficient information about the recommended placement.

        Because respondent failed to establish the appropriateness of the program it recommended for petitioner's daughter and because the November 27, 2001 CSE meeting was improperly conducted in the absence of the parent, the hearing officer's decision must be annulled insofar as he found the recommended placement to be appropriate. In light of this conclusion, I find it unnecessary to address the other issues raised by petitioner.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the hearing officer's decision be annulled to the extent that he found the November 27, 2001 IEP recommended for petitioner's daughter to be appropriate and to the extent that he determined the placement recommended for the child to be appropriate.