02-076

        Petitioner, the Board of Education of the Avon Central School District, appeals from that part of a hearing officer’s decision which found that the recommendations made by its Committee on Special Education (CSE) were void. Despite having determined that the recommended program had provided educational benefits to the student, the hearing officer found that the CSE’s recommendations were void because no regular education teacher attended the CSE meetings during which placement recommendations were made. Petitioner also appeals from the hearing officer’s finding that a day treatment program was the least restrictive environment for the student. Respondent cross-appeals from that portion of the hearing officer’s decision which found that the program recommended by petitioner’s CSE provided educational benefits to her daughter. The appeal must be dismissed. The cross-appeal must be dismissed as moot.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent has submitted an affidavit dated September 13, 2002 with her cross-appeal. The affidavit was prepared by respondent after the hearing officer issued his decision. Petitioner argues that respondent’s affidavit should not be considered in this appeal because it was not submitted at the hearing and it was never provided to the hearing officer. 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, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 00-007; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). The information contained in the affidavit relates to a June 14, 2002 conversation between respondent and the principal of Avon Primary School regarding his investigation of certain incidents in which respondent’s daughter was involved. The conversation occurred after the impartial hearing had concluded. Under the circumstances, I will exercise my discretion and accept the affidavit.

        Petitioner also objects to respondent’s reply to its answer to respondent’s cross-appeal. Petitioner claims that the reply does not respond to any procedural defenses, but instead, contains additional allegations. A reply is limited to any procedural defenses or to additional documentary evidence included with the answer (8 NYCRR 279.6). Consequently, I do not consider the allegations raised by respondent in her reply to petitioner’s answer, which do not respond to procedural defenses.

        The student was ten years old and in the third grade at Avon Primary School when the hearing began in May 2002. The student has consistently been diagnosed as having reactive attachment disorder and posttraumatic stress disorder. She is currently classified as emotionally disturbed and her classification is not in dispute. The student’s educational history is extensively described in the hearing officer’s decision and will not be repeated here in detail.

        The student spent much of the early years of her life in foster care placements in Massachusetts (Parent Exhibit 3). During this time, she received mental health services including various medications (Transcript p. 673, 692). In 1997, when she was five years old, the student and her two younger brothers began living with respondent and her then husband, who were considered to be preadoptive parents (Transcript p. 672). Respondent and her then husband adopted the children in 1999 (Parent Exhibit 7). In June 2000, respondent separated from her husband, and she and the children moved to petitioner’s school district. The student began the 2000-01 school year at Avon Primary School (Parent Exhibit 14A). In February 2001, temporary custody was awarded to the student’s father, and the student and her siblings returned to Massachusetts, where the student completed the 2000-01 school year in a "psychosocial" or small group therapeutic classroom in the Mendon Upton Regional School District (Parent Exhibit 12A). The psychosocial classroom was described as a staff intensive program designed for students whose behavioral or social/emotional needs interfered with their ability to access or make effective progress in the regular education program (District Exhibit 20).

        The student began the 2001-02 school year in the psychosocial classroom at Mendon Upton. In February 2002, respondent was awarded custody, and the student and her siblings returned to live with respondent in New York (Transcript pp. 695, 717). In anticipation of the student’s return to the school district, the CSE chairperson requested that the student be reviewed by Crestwood Children’s Center (Crestwood) for a possible day treatment program (District Exhibit 23; Parent Exhibit 15). A CSE meeting scheduled for February 26, 2002 was postponed at the mother’s request (District Exhibit 24; Parent Exhibit 18A). On February 27, 2002, the student began attending Avon Primary School, and was placed in a 15:1 special education classroom in an effort to provide a program similar to that which she had attended at Mendon Upton (Transcript p. 51). By letter dated March 1, 2002, Crestwood informed the CSE that it was rejecting the referral of the student for day treatment services, and that given the student’s severe and complex needs, as well as her current functioning, a residential program would be the least restrictive environment for her (District Exhibit 25).

        The CSE met on March 11, 2002 and recommended that the student be placed in a 15:1 special education classroom with a half-day teacher assistant to assist with mainstreaming (Parent Exhibit 18B). It further recommended that the student receive speech/language therapy, transition counseling and a day treatment referral. No regular education teacher was present at the meeting (Transcript p. 222). The CSE agreed to reconvene in one month to review the student’s program. Respondent did not agree with the current placement and did not wish to wait another month to assess whether the program was working. She was interested in a program that provided the same level of services that her daughter was receiving in the Mendon Upton program, which was unavailable in the district at her daughter’s grade level.

        On April 7, 2002, respondent requested an impartial hearing asserting that the recommended program did not meet her daughter’s needs (District Exhibit 46). The CSE met again on April 8, 2002 (Parent Exhibit 18C). A representative from Hillside Children’s Center, an agency that provides services to children with emotional and behavioral problems and their families, attended the meeting. Again, no regular education teacher was present at the meeting (District Exhibit 30, Parent Exhibit 18C; Transcript p. 21). The CSE determined that customized therapy, including family and individual therapy, and consulting psychiatric services would be provided by Hillside. Later that month however, Hillside informed the CSE that while other recommended services could be provided, Hillside could not provide psychiatric services for the student (District Exhibit 35, Parent Exhibit 20). Hillside indicated that it was available to provide individual therapy, family contact and consultation if both parents were in agreement. It suggested that the child might be better served in a comprehensive program, incorporating academic and behavioral support with a strong mental health treatment component.

        The CSE met again on April 29, 2002 (District Exhibits 42, 43). It recommended that the student be placed in a 15:1 special class five times per week for 150 minutes and that she participate in regular education with the assistance of an individual aide five times per week for 240 minutes. The CSE further recommended that the student receive speech/language therapy and various counseling services. No regular education teacher attended the meeting.

        An independent evaluation of the student was conducted in early May 2002 by a private psychologist who had previously evaluated the student in March 2001 (Parent Exhibit 1). Administration of the Weschler Intelligence Scale for Children - III (WISC-III), yielded a verbal IQ score of 83, a performance IQ score of 87 and a full scale IQ score of 84. The private psychologist noted that the student’s scores have remained consistent since 1999, indicative of cognitive functioning in the low average range. His diagnostic impressions included reactive attachment disorder, posttraumatic stress disorder, adjustment disorder with mixed disturbance of emotions and conduct, sibling relational problem, parent child relational problem, and sexual abuse of a child (victim). Problems related to past sexual abuse, neglect, and current parental enmity were identified as psychosocial and environmental problems. The private psychologist rated the student’s global assessment of functioning (GAF) at 45, indicating serious impairment in functioning.

        The hearing began on May 17, 2002. The hearing continued on various dates in May and June, and concluded on June 11, 2002. The hearing officer rendered his decision on July 25, 2002. He found that although the school district recommended a program that provided the student educational benefits, the CSE’s recommendations were void because the CSE was not properly composed. The hearing officer also found that a day treatment program was the least restrictive environment for the student, and he ordered the CSE to refer the student to appropriate day treatment facilities. In a letter dated July 31, 2002, the hearing officer amended his decision to clarify that his order that the CSE refer the student to day treatment programs was intended to apply to the 2002-03 school year (Exhibit A to petitioner’s reply and answer to cross-appeal). He also clarified that part of his decision regarding the development of an updated functional behavioral assessment and plan.

        Petitioner contends that the hearing officer erred in admitting certain evidence and in allowing certain testimony. The Board of Education further argues that the hearing officer erred in deciding that the absence of a regular education teacher at the CSE meeting precluded it from establishing that it had provided a free appropriate public education. Petitioner also contends that the hearing officer erred in determining that a day treatment program was the least restrictive environment for the student, and that he exceeded his jurisdiction in ordering it to make day treatment referrals for the 2002-03 school year. Respondent cross-appeals from that part of the hearing officer’s decision which found that the recommended program provided the student educational benefits.

        I will address the appeal first. Petitioner argues that the hearing officer erred in admitting certain evidence into the record and in allowing certain testimony. It contends that the January 31, 2002 findings of fact and conclusions of law of Matrimonial Attorney Referee Dattilo (Exhibit 24) should not have been admitted into the record because it is hearsay and irrelevant to the issues presented at the hearing. An impartial hearing officer must afford all parties the opportunity to present evidence and testimony (8 NYCRR 200.5[i][3][vi]). However, it is within a hearing officer's discretion to limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Handicapping Condition, Appeal No. 92-18). The criteria for admission of evidence into the record are relevance and reliability (Application of a Child with a Disability, Appeal No. 95-20). Referee Dattilo’s findings of fact and conclusions of law contains relevant information about the child. While all of the information in the findings of fact and conclusions of law may not be relevant in this matter, I note that when making his ruling on whether to admit the document, the hearing officer indicated that he had the ability to assess and identify the information relevant to the student’s needs (Transcript p. 136). I find that the hearing officer did not err in admitting the document into evidence.

        Petitioner further contends that the hearing officer erred in admitting into evidence the testimony and report of the private psychologist because such information was never shared with the CSE and did not exist when the CSE made its recommendations. The fact that an exhibit postdates the CSE’s decision does not per se make the exhibit inadmissible (Application of a Child with a Disability, Appeal No. 97-30). As noted above, the criteria for admission of evidence into the record are relevance and reliability (Application of a Child with a Disability, Appeal No. 95-20). The private psychologist’s testimony and report provided relevant information about the student’s functioning. While I am troubled by the fact that useful information about the student was not shared with the CSE, it is nevertheless the CSE’s responsibility to have adequate information about a student’s current special education needs in order to prepare an appropriate individualized education program (IEP) (Application of the Bd. of Educ., Appeal No. 01-014). Under the circumstances, I find that the hearing officer did not err in admitting into evidence the testimony and report of the private psychologist. Similarly, I find that the hearing officer did not err in considering and giving credibility to the testimony of the student’s pediatrician and the psychiatrist from Crestwood.

        Petitioner also claims that the hearing officer, having determined that the student received educational benefits from the recommended program, erred in finding that the absence of a regular education teacher at the CSE meetings rendered its recommendations void. 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 its recommended program is reasonably calculated to confer educational benefits (Bd. 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).

        I must first determine which IEP or IEPs must be considered. At the beginning of the hearing, petitioner’s attorney indicated that the IEPs developed throughout the 2001-02 school year and the IEP developed on April 29, 2002 formed the basis of the program and placement that were before the hearing officer for consideration (Transcript p. 11). Respondent’s attorney also made reference to three IEPs that had been developed since the student returned to the school district (Transcript p. 13). In his decision, the hearing officer did not specify which IEP he was considering. A CSE may revise a child’s IEP from time to time. An amended IEP supersedes the initial IEP (Application of a Child with a Disability, Appeal No. 96-78). Therefore, the IEP developed at the April 8, 2002 CSE meeting superceded the March 11, 2002 IEP, and the IEP developed at the April 29, 2002 IEP superceded the April 8, 2002 IEP. Consequently, I will consider the April 29, 2002 IEP. I note that respondent’s April 7, 2002 hearing request preceded the development of the April 29, 2002 IEP. However, the April 29, 2002 IEP was developed before the hearing began, and the parties identified it as being before the hearing officer for consideration.

        Petitioner concedes that its CSE did not have a regular education teacher at the April 29, 2002 CSE meeting when a placement recommendation was made (Transcript p. 122). An IEP which was prepared by a CSE that lacked each of its required members is a nullity (Application of a Child with a Disability, Appeal No. 99-54; Application of the Bd. of Educ., Appeal No. 99-38; Application of a Child with a Disability, Appeal No. 99-19). Under the circumstances, I must find that petitioner cannot demonstrate that the program its CSE recommended for the student was appropriate. Having found that petitioner cannot demonstrate the appropriateness of the program recommended by its CSE, it is not necessary that I address those issues raised in respondent’s cross-appeal challenging the hearing officer’s other findings regarding the appropriateness of the IEP.

        Petitioner contends that upon finding that the CSE was not properly composed, the hearing officer should have remanded the matter to the CSE. I disagree that remanding the matter is the only remedy available to the hearing officer. Where the record supports a hearing officer's determination concerning a child's need for a service or other element of an educational program which a CSE has not recommended, the hearing officer may order a board of education to provide such service or program element, in lieu of merely remanding the matter to the CSE (Application of a Child with a Handicapping Condition, Appeal No. 90-17). The question remains whether the record supports the need for day treatment services for the student.

        Respondent claims that a day treatment program is appropriate for her daughter. Petitioner contends that the hearing officer erred in concluding that a day treatment program was appropriate for the student having found that the district’s program provided educational benefits. The record shows that the student has severe needs. She has been diagnosed as having several psychiatric disorders and has received mental health services for most of her young life. Crestwood rejected the student for day treatment services and suggested that a residential program would be the least restrictive environment for her, given her severe and complex needs, as well as her current functioning. Hillside recommended a comprehensive program, incorporating academic and behavioral support with a strong mental health treatment component. The private professionals who testified on respondent’s behalf recommended a day treatment program for the student. I find that there was sufficient evidence in the record to support the hearing officer’s determination that the student required day treatment program.

        Finally, petitioner contends that the hearing officer exceeded his jurisdiction in concluding that a day treatment program was the least restrictive environment for the student for the 2002-03 school year. As noted above, the relevant IEP is the April 29, 2002 IEP. While the April 29, 2002 IEP does not clearly identify a specific school year, the face page provides for an initiation of services date of April 8, 2002 and a projected date of review of April 8, 2003. Additionally, the goals and objectives on the IEP provide for an anticipated completion date of June 30, 2003. Clearly, the IEP was intended to carry over into the 2002-03 school year. Thus, there is no basis for me to find that the hearing officer erred or exceeded his authority in ordering the CSE to refer the student to appropriate day treatment facilities.

        Respondent cross-appeals from that part of the hearing officer’s decision which found that the recommended program provided the student educational benefits. Having determined that the CSE was improperly composed, it was unnecessary for the hearing officer to consider whether the program provided educational benefits. As noted above, an IEP which was prepared by a CSE that lacked each of its required members is a nullity (Application of a Child with a Disability, Appeal No. 99-54; Application of the Bd. of Educ., Appeal No. 99-38; Application of a Child with a Disability, Appeal No. 99-19).

        I have considered both petitioner’s and respondent’s other claims and find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.