02-056

         Petitioner, the Board of Education of the Hyde Park Central School District (district), appeals from the decision of an impartial hearing officer holding that the educational program its Committee on Special Education (CSE) recommended for respondent's son during the 2001-02 school year was inappropriate and that petitioner must reimburse respondent for the cost of his child's tuition at The Randolph School (Randolph). The appeal must be sustained.

        Respondent asserts that the appeal should be dismissed because the district did not timely serve the petition and because the notice of petition was attached to the petition. Appeals by boards of education must be served within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2[c]). Here, the hearing officer's decision was dated April 29, 2002, and the district received it on May 1, 2002 (Petition ¶1). After serving the petition, the district complied with 8 NYCRR 279.4[a], which requires a petitioner to file a copy of the petition and proof of service. The proof of service indicates that respondent was served with the petition on June 8, 2002. Accordingly, the petition was served within 40 days of receipt of the decision. In addition, the law does not prohibit attachment of the notice of petition to the petition. The petition was timely served and in conformance with regulatory requirements.

        At the time of the hearing, respondent's son was eight years old and in the third grade at Randolph. Randolph has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. Although the CSE's current recommendation is placement at a public school in the district, respondent has never placed his child in the district schools. Respondent's son has been identified by the CSE as a student with a learning disability.

        The student has a history of speech-language difficulties. In March 1998, he was identified as a preschool student with a disability, and speech-language therapy was recommended (Exhibit 27). He was classified speech impaired during kindergarten and first grade (Exhibits 7, 25, 26). In October 1999, when the student was in first grade, a psychoeducational evaluation revealed strengths in social judgment, awareness of essential environmental details, and problem solving. The student displayed severe language deficits and weaknesses in visual motor speed, coordination and concentration. The evaluator recommended an educational approach focusing on acquisition of skills through intuitive reasoning rather than rote memory or drill (Exhibit 16). At a meeting held on April 12, 2000, petitioner's CSE recommended resource room services and consultant teacher services. The individualized education program (IEP) for first grade indicated that the student had been privately placed at Randolph by his parents (Exhibit 28). For second grade, during the 2000-01 school year, the CSE recommended a classification of learning disabled. In addition to resource room services and direct consultant teacher services, which were provided to the student at Randolph, the recommended program included counseling and speech-language consultations to determine the student's need for support in those areas (Exhibit 5). Testing conducted in June 2001 revealed that the student's overall reading ability was below average and his literacy skills needed remediation (Exhibits 22, 18). In summer 2001, a neurologist opined that the student should be "classified as dyslexic" (Exhibit 21).

        In a report dated June 18, 2001, the student's consultant teacher opined that to maintain progress the student needed the program offered at Randolph, with in-class support and individual attention from a teacher using a multisensory, sequential approach (Exhibit 20). On June 29, 2001, the CSE convened to discuss the student's program for the 2001-02 school year. The meeting was adjourned after respondent requested an impartial hearing (Exhibit 4). On July 2, 2001, respondent wrote a letter stating that he was unilaterally placing his son at Randolph, and he requested an impartial hearing to obtain tuition reimbursement and additional resource room services for his son (Exhibit 8). The CSE reconvened on July 13, 2001. It continued to recommend that respondent's son be identified as a student with a learning disability. The recommended program included resource room three times per week for 60 minutes and direct consultant teacher services four times per week for 30 minutes. The CSE recommended placement at North Park Elementary School, a public school within the district (Exhibits 1, 2). On July 31, the parent expanded his complaint to include requests for compensatory education and for a ruling that the district deliberately failed to provide a free appropriate public education (FAPE) to dyslexic students (Exhibit 11). Respondent did not pursue those requests at the hearing (Transcript p. 115).

        The impartial hearing was held over the course of seven days from August 2001 through March 2002. On the first day of the hearing, an issue arose regarding the applicability of the federal and state provisions relating to a student's right to remain in his then current placement pending review proceedings (See 20 U.S.C. § 1415[j]; Education Law § 4404[4]). Pending resolution of that issue by settlement or by the hearing officer, the parties stipulated that the district would reimburse respondent for the cost of up to five hours per week of related services to be provided at Randolph (Transcript pp. 6-8). The hearing officer issued his pendency order on December 10, 2001, concluding that he needed additional evidence to determine whether the stay-put provisions of federal and state law applied; therefore, he ordered that the stipulation remain in effect throughout the hearing (First Interim Order).

        On the second day of the hearing, the hearing officer determined that the IEP developed on July 13, 2001 was inappropriate because the CSE did not include one of the student's teachers from Randolph (Transcript pp. 109-11). The hearing continued, but the CSE reconvened on October 4, 2001 to develop a new IEP for the 2001-02 school year. A teacher from Randolph participated in that meeting. The CSE recommended placement at North Park Elementary School, and the recommended program included direct consultant teacher services in a group, five times per week for one hour. Upon the parent's request, resource room services were not recommended. The CSE recommended that a speech-language evaluation and an occupational therapy evaluation be performed. It declined the parent's request for an assistive technology evaluation (Exhibit 24).

        The hearing officer issued a second interim order on January 7, 2002 in response to requests from the parties. The district asked the hearing officer to certify the first interim order for review. The parent sought determinations that dyslexia is a specific learning disability and his son is dyslexic, that the Orton-Gillingham method has been scientifically proven to be effective in addressing dyslexia, that the resource room teacher used an effective methodology, that the methodology could not be changed absent proof that the new methodology was as effective as the current one, and that the service provider could not be changed absent proof that the new service provider was at least as competent as the current one. The hearing officer denied the requests of both parties (Second Interim Order).

        The hearing officer issued his final decision on April 29, 2002 and based his determination on the October 4, 2001 IEP. He held that the district did not recommend an appropriate program, finding that the student needed a general education placement with a low student to teacher ratio, pull-out services to address his language based disability, and push-in services designed to integrate the general education curriculum with the student's needs. He further found that the recommended program did not reflect the program that would have been provided if the student had attended school in the district. He opined that the CSE recommended a program based on the assumption that the student would be attending private school. The hearing officer held that Randolph provided an appropriate placement because the student received the push-in and pull-out services he needed and because the diminished class size was compatible with the student's special education needs. Finally, the hearing officer concluded that equities favored the parent, and he awarded tuition reimbursement.

        Petitioner asserts that the impartial hearing process was an inappropriate forum to adjudicate respondent's disagreement with the IEP, that the IEP developed on July 13, 2001 was created by an appropriately composed CSE, that the district's program was appropriate, and that the private placement was inappropriate, in part because the private school did not provide any special education services. Respondent alleges that the district deliberately manipulated the due process procedure. He seeks tuition reimbursement and sanctions against the district.

        The district contends that the hearing officer exceeded his jurisdiction because the state complaint procedure (8 NYCRR 200.5[k]), rather than an impartial hearing, is the exclusive process for challenging the alleged denial of services to a student with a disability privately enrolled in a nonpublic school. Relying upon 34 C.F.R. § 300.457, petitioner asserts that respondent has no right to invoke the impartial hearing provisions of either the Individuals with Disabilities Education Act (IDEA) or Article 89 of the New York State Education Law. Petitioner's argument iswithout merit. 34 C.F.R. § 300.457 identifies procedures available to resolve "complaints" and reads as follows:

(a) Due process inapplicable

​The procedures in §§ 300.504-300.515 [including due process hearings] do not apply to complaints that an LEA [board of education] has failed to meet the requirements of §§ 300.452-300.462 [relating to children enrolled by their parents in private schools], including the provision of services indicated on the child’s services plan.

(b) Due process applicable

​The procedures in §§ 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of § 300.451 [child find requirements], including the requirements of §§ 300.530-300.543 [evaluation requirements].

(c) State complaints

Complaints that an SEA or LEA has failed to meet the requirements of §§ 300.451-300.462 may be filed under the procedures in §§ 300.660-300.662 [state complaint procedures].

When FAPE is not at issue, the IDEA due process procedure is available to parents of private school students with regard to child find and evaluation. Under the IDEA, when a child is privately placed and FAPE is not at issue, parents who wish to challenge "service" decisions must file an administrative complaint with the State Education Department (34 C.F.R. § 300.457).

        Respondent's complaint did allege a denial of FAPE. A board of education must offer to provide FAPE to each student with a disability residing in the school district who requires special education services (20 U.S.C. § 1412[a][1][A]; Education Law § 4402[2][a]). A board of education's alleged failure to offer FAPE may be challenged in a proceeding brought pursuant to the due process provisions of the IDEA and Article 89 (20 U.S.C. § 1415[f][1]; Education Law § 4404[1]). Petitioner asserts that respondent voluntarily enrolled his child in Randolph and therefore should not have been allowed to employ the impartial hearing procedure. I disagree. The evidence shows that respondent unilaterally placed his child at Randolph, that he asserted the district failed to offer his son an appropriate program, and that he sought public funding for his son's attendance at Randolph (Exhibit 8). Due process procedures are applicable under both federal and state law when, as in this case, parents allege that a school district has denied their child FAPE (34 C.F.R. § 300.403[b], [c]; 8 NYCRR 200.5[i][1]). The fact that the student has always attended private school does not preclude respondent from asserting his due process rights (Application of a Child with a Disability, Appeal No. 01-079).

        Petitioner asserts that the hearing officer did not consider the relevant IEP in arriving at his determination. For purposes of an award of tuition reimbursement, the relevant IEP is the one the parent had at the time he enrolled his child in the private school (Application of the Bd. of Educ., Appeal No. 00-053). The CSE began to develop the student's IEP on June 29, 2001. That meeting was adjourned when respondent requested an impartial hearing (Exhibit 3). Respondent requested an impartial hearing in writing on July 2 (Exhibit 8). The IEP was completed on July 13, 2001 (Exhibits 1, 2). Although respondent requested an impartial hearing on July 2, 2001 I find that he was challenging the appropriateness of the IEP that was initiated on June 29, 2001 and completed on July 13, 2001. The July 13, 2001 IEP is the relevant IEP in determining the appropriateness of the program recommended by the CSE.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). Petitioner asserts that the hearing officer erred when he found that the IEP was inappropriate because the CSE was not properly composed. The hearing officer found that the CSE should have included a teacher and related service provider from Randolph. Federal regulation and state statute mandate that CSEs include certain members. In New York State, a CSE must include the parents of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1]). CSEs are required to offer a FAPE to all students with disabilities residing in the district (34 C.F.R. §§ 300.121[a], 300.220[a]). When a CSE makes a recommendation that is intended to provide a FAPE to a student who, notwithstanding such recommendation, is unilaterally placed by his or her parents in a private school (34 C.F.R. § 300.403), it is not required to include a representative from the private school (34 C.F.R. § 300.344[a]; Education Law § 4402[1][b][1][a]).¹

        When recommending a program, a CSE must include at least one "regular education teacher of the child," if the child is or may be participating in the regular education environment (34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). However, a board of education cannot reasonably be expected to designate a teacher to serve on the CSE who will necessarily be a student’s regular education teacher before the CSE has met to determine the student’s needs. Nevertheless, it can be expected to have sufficient information about the student to ascertain his or her general needs and designate a regular education teacher who can discuss those needs (Application of a Child with a Disability, Appeal No. 00-060). The mandatory regular education teacher on the committee 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 No. 26).

        The CSE that met on July 13, 2001 included a regular education teacher from the district and a special education teacher from the district (Transcript p. 37). The regular education teacher worked in the high school. While testimony indicates that she had been trained to work with younger students, she was teaching high school students at the time of the hearing (Transcript p. 132), and the record contained no evidence that she was certified to work with younger students or that she would be teaching in one of the regular education subject areas that was proposed for the student during the coming year. Respondent's son was in third grade; therefore, the record is insufficient to establish that the regular education teacher on the CSE would or could have been responsible for teaching him. The CSE was not properly composed because it did not include a regular education teacher who could have been responsible for implementing a portion of the IEP (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 02-080). The failure to have the proper regular education teacher present is a procedural violation that compromised the development of an appropriate IEP for the 2001-02 school year and deprived the student of educational benefits (see Arlington Cent. Sch. Dist. V. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). Here, the contributions from the proper regular education teacher were essential, as petitioner was recommending a regular education placement and consideration of curriculum modifications or other specialized instruction or support services are integrally related to an appropriate program for a child with a learning disability.

        Even if the CSE had been properly constituted, I would nevertheless be constrained to find the 2001-02 IEP was deficient. The program developed at the July 13, 2001 meeting included resource room three times per week for 60 minute sessions and direct consultant teacher services four times per week for 30 minute sessions. The parent challenges the appropriateness of the program. The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 02-092). To meet its burden of showing that it provided FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA’s procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        An appropriate IEP indicates a student's present levels of performance and individual needs with respect to academic achievement and learning characteristics, physical development, social development, and management needs (8 NYCRR 200.4[d][2][i] and 200.1[ww]. The information must be sufficiently detailed to enable the CSE to prepare appropriate goals and objectives (8 NYCRR 200.4[d][2][iii]). With regard to respondent's son's present levels of performance, the IEP includes IQ scores from a March 2000 administration of the Wechsler Preschool and Primary Scale of Intelligence (WPPSI-R) but does not include a description of academic needs or abilities. The IEP does not reflect the student's difficulties with reading, spelling, writing or math, nor does the IEP indicate how the student's disability affects his performance in regular education (Exhibit 1; 8 NYCRR 200.4[d][2][i][a]). The student's needs are not described in detail sufficient to determine whether the goals and objectives are appropriate (Exhibit 1). I find that the CSE failed to develop a substantively appropriate IEP for respondent's son and therefore failed to offer a program reasonably calculated to provide educational benefits.

        The student's parent bears the burden of proof with regard to the appropriateness of the services he selected for his child during the 2001-02 school year (Application of a Child with a Disability, Appeal No. 02-93; Application of a Child with a Disability, Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offered an educational program that met the student's special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 02-080). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No.02-092). While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; M.S., 231 F.3d at 105).

        The evidence shows that respondent's son needs a placement emphasizing an intensive, multisensory, sequential approach to learning (Exhibits 18, 20). The evidence further shows that the student did progress when such instruction was provided (Exhibits 18, 20, U, JJ). Randolph does not, however, provide intensive, multisensory, sequential language arts instruction. Rather, the language arts curriculum at Randolph mixes a whole language approach with a phonics approach (Transcript p. 634). Such an approach does not appropriately address the need of a student who requires an intensive, sequential approach to language arts. Randolph does not provide any special education services or related services (Transcript pp. 573, 623, 630). Rather, independent contractors, ultimately paid for by petitioner, provided consultant teacher services and speech-language services to respondent's son (Transcript pp. 581, 582), and it was the speech-language therapist who provided the student with a multisensory, sequential approach to reading (Transcript p. 593). The administrator from Randolph testified that the student would not have made sufficient progress at Randolph without additional services (Transcript p. 630). Given the student's needs and the program offered at Randolph, I conclude that respondent has failed to establish the appropriateness of the nonpublic school program in which he placed his son (see Application of a Child with a Disability, Appeal No. 99-28). Having found that the private placement was inappropriate, I do not need to address the issue of equitable considerations.

        Respondent requests that I impose sanctions on the district for deliberate manipulation of the due process procedure. I do not have the authority to impose sanctions; therefore, I deny respondent's request.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.