03-015

        Petitioner, the Board of Education of the Half Hollow Hills Central School District (district), appeals from the decision of an impartial hearing officer which determined that petitioner failed to provide a free appropriate public education (FAPE) to respondents' daughter for the 2002-03 school year. The appeal is sustained in part.

        At the time of the hearing, respondents' daughter was five years old and attended a 12-month,¹ regular education preschool class for four-year-old children at the Park Shore Country Day School (Park Shore) located in Dix Hills, New York. Park Shore is a nonpublic school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities.

        Respondents' daughter has a medical diagnosis of Down syndrome and exhibits delays in all areas of functioning (Exhibits D, E; Transcript pp. 708-09). She received early intervention services from the Association for Children with Down Syndrome, Inc., prior to beginning preschool (Transcript pp. 468-69). The child transitioned from early intervention when she was three years old and was classified by petitioner's Committee on Preschool Special Education (CPSE) as a preschool student with a disability (Exhibits F, G; Transcript pp. 29, 468).

        For the 2000-01 school year, when the child was three years old, respondents enrolled their daughter in a regular education preschool class for two-year-old children located at Park Shore (Transcript pp. 468-70). Respondents did so at their own expense and petitioner provided related services both at home and at Park Shore. For the 2001-02 school year, when the child was four years old, respondents enrolled her in Park Shore's regular education preschool class for three-year-old children (Transcript p. 352). Respondents again did so at their own expense (Transcript pp. 260-61), and according to the child's 2001-02 individualized education program (IEP) petitioner provided related services at the child's home and at Park Shore (Exhibit F; Transcript p. 8). Petitioner provided a special education itinerant teacher (SEIT) for two hours a day (one hour at home, one hour at Park Shore), four times per week. Individual occupational therapy (OT), individual physical therapy (PT) and speech-language services were each provided at home for 30 minutes a day, four times per week (Exhibit F; Transcript pp. 8-13, 260-61, 336, 362-63, 388, 415, 439-40). An additional session of speech-language services was provided at Park Shore for 30 minutes on a push-in basis once per week and a 1:1 paraprofessional was provided for three and a half hours per day, four times per week at Park Shore (Exhibit F; Transcript pp. 9-10). The child's pendency placement was at the time of the hearing, and remains, the program provided at Park Shore, where she received services in accordance with her 2001-02 IEP (Transcript pp. 8-13).

        The Wechsler Primary and Preschool Scale of Intelligence (WPPSI) was administered by petitioner's school psychologist on May 28, 2002 and yielded a verbal IQ score of 44, a performance IQ score of 48 and a full scale IQ score of 52 which is in the deficient range (Exhibit 3). The child has significant deficits in both expressive and receptive language and severe delays in articulation (Exhibit K; Transcript p. 143). She also has delays in fine motor, visual perceptual, and eye-hand coordination, as well as muscle weakness and difficulty with balance and coordination (Exhibits K, N).

        On June 20, 2002, petitioner's Committee on Special Education (CSE) met and recommended that the child be classified as mentally retarded and placed in one of three possible 12:1 self-contained kindergarten classrooms that was later determined to be located at petitioner's Chestnut Hill Elementary School (Exhibits 3, G; Transcript pp. 287-88). The CSE further recommended a 12-month program and the related services of a 1:1 paraprofessional six hours per day, five times per week, individual OT for 30 minutes, twice per week, individual PT for 30 minutes, once per week, speech-language services for 30 minutes, three times per week and a team meeting for one hour, once per month (id.). The CSE also recommended consultation services in OT and PT each for 30 minutes, once per week (Exhibits 3, G). The OT and PT service providers were to consult with the child's 12:1 kindergarten classroom teacher and her paraprofessional for the purpose of determining whether the recommended service levels were appropriate (Transcript pp. 568, 596, 600). The results of the consultations were to be reported at the child's monthly team meetings, which were to be attended by all service providers as well as the child's parents (Transcript pp. 296-97). The recommended IEP also provided for non-academic mainstreaming consisting of "playtime," lunch and recess (Exhibits 3, G; Transcript pp. 239-40, 289, 290-91).

        The hearing began on August 19, 2002. Testimony was heard for a total of four days and the hearing concluded on November 13, 2002. In a decision dated January 10, 2003, the hearing officer determined that petitioner failed to demonstrate the appropriateness of its recommended program due to an invalidly composed CSE. The hearing officer found that both the additional parent member and the regular education teacher were not present at the June 20, 2002 CSE meeting. The hearing officer further determined that petitioner's recommended program was not in the least restrictive environment (LRE). The hearing officer acknowledged that respondents were not seeking tuition reimbursement but she considered the appropriateness of Park Shore nonetheless. The hearing officer determined that Park Shore was an appropriate program for respondents' daughter and ordered petitioner to continue to provide related services as set forth in the child's 2001-02 IEP for the remainder of the 2002-03 school year.

        In this appeal, petitioner alleges that the June 20, 2002 CSE was validly composed (Pet. pp. 8-12), the recommended program was in the LRE (Pet. pp. 12-19), and that the impartial hearing officer exhibited bias toward petitioner (Pet. pp. 32-40).

        I will first consider petitioner's allegation of bias on the part of the impartial hearing officer. It is well settled that an impartial hearing officer must avoid giving even the appearance of impropriety (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 00-063; Application of a Child with a Disability, Appeal No. 99-061; Application of a Child with a Disability, Appeal No. 99-025; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 94-32).

        Petitioner challenges the impartial hearing officer's impartiality on the ground that she failed to disclose that she represents parents of children with disabilities in other school districts. State regulations provide that an impartial hearing officer "... shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing ..." (8 NYCRR 200.1[x][1]; Application of a Child with a Disability, Appeal No. 01-046).

        Impartial hearing officers are required to disclose all potentially conflicting interests at the outset of the hearing, so that any question about their impartiality can be addressed, and an adequate record can be developed for subsequent review (Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Handicapping Condition, Appeal No. 91-27). At the outset of the hearing, the impartial hearing officer stated "... I have no personal or professional interest which would conflict with my impartiality in this matter" (Transcript p. 6). I note that during this opening statement, the impartial hearing officer did not disclose the fact that she practices as a parent advocate, nor did she afford the parties an opportunity to question her impartiality (Transcript pp. 6-8).

        Petitioner has submitted an affidavit in support of its petition. Annexed to the affidavit as "Exhibit B," is a letter from the impartial hearing officer dated January 15, 2003, advising petitioner's attorney that she will be representing the parents of a child with a disability at an upcoming CSE meeting to be held by an undisclosed school district. Petitioner's attorney avers that it is not Half Hollow Hills Central School District, rather another "school district client" (Aff. ¶ 30). Although the impartial hearing officer should have disclosed that she practices as a parent advocate, I find that her failure to do so under the circumstances of this case, does not afford a sufficient basis for annulling her determination (Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Disability, Appeal No. 97-96; Application of a Child with a Disability, Appeal No. 95-41). I have carefully reviewed the transcript and the impartial hearing officer's decision, and I find that there is no evidence of any actual bias against petitioner (Application of the Bd. of Educ. of the Starpoint Cent. Sch. Dist., Appeal No. 01-043; Application of a Child with a Disability, Appeal No. 00-063; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-51). A thorough review of the record reveals that the impartial hearing officer was fair in her treatment of witnesses, and unbiased in her rulings during the course of the hearing (Transcript pp. 55-57, 61-62, 79, 106, 180-81, 223, 233-35, 238-39, 412-14, 425-27, 556-58, 603-04, 633-38, 644-46, 680-81, 687, 713, 722). Nevertheless, I am troubled by the impartial hearing officer's failure to disclose that she practices as a parent advocate. This was clearly a potential conflict of interest and the impartial hearing officer was required to disclose this information to the parties at the outset of the hearing (Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Handicapping Condition, Appeal No. 91-27). I caution the impartial hearing officer to fulfill her obligation to fully disclose potentially conflicting interests in the future. But in the absence of actual bias, I am constrained to find that her failure to disclose does not afford a basis to annul her determination.

        Petitioner further contends that the impartial hearing officer erred in finding its CSE was invalidly composed. In her decision, the impartial hearing officer found that both the additional parent member (Education Law § 4402[b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]) and the regular education teacher (20 U.S.C. § 1414[d][1][B][ii]; 34 C.F.R. § 300.344[a][2]; Education Law § 4402[b][1][a][ii]; 8 NYCRR 200.3[a][1][ii]) were not present at the June 20, 2002 CSE meeting.

        The purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided 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). To meet its burden of showing that it provided a 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]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see, Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-092).

        The student's recommended program must also be provided in the LRE (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 (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105).

        Petitioner asserts that the CSE meeting held on June 20, 2002 was validly composed. Petitioner's CPSE chairperson testified that the additional parent member (Education Law § 4402[b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]) was waived (Transcript p. 62). The IDEA sets forth minimum procedural safeguards each school district must provide to eligible students with disabilities (20 U.S.C. § 1415). The New York State Legislature, in Article 89 of the Education Law, provides for special education in a manner consistent with the IDEA and confers additional procedural protections. One of those procedural protections is the requirement of an additional parent member of the CSE (Education Law § 4402[1][b][1][a][viii]; 8 NYCRR 200.3 [a][1][viii]). The statute and accompanying regulation require that the additional parent member be present at the CSE meeting. This section was amended in 1999 to provide a single scenario by which the additional parent member may be excluded: "such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting" (Education Law § 4402[1][b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]; Application of a Child with a Disability, Appeal No. 02-092).

        The additional parent member is not a required member of the IEP Team under the IDEA (20 U.S.C. § 1414[d][1][B]). The New York State Legislature could have amended Article 89 to eliminate the requirement of the parent member when it amended the relevant statutory provision in 1999. Instead, the Legislature in 1999 reaffirmed its mandate to have the additional parent member participate in the CSE process, by delineating the limited circumstance when the additional parent member need not participate. As is the case in other states, New York "lawmakers have built upon the federal floor created by the [IDEA] and have decided to provide the [disabled] children, within the state, with a level of educational services that surpasses the national minimum" (In Re Conklin, 946 F.2d 306, 318 [4th Cir. 1991][recognizing the distinction between federal and state education standards]; see also, Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982-83 [4th Cir. 1990][holding North Carolina statute created a broader definition of related services than that required by (the IDEA)]; Application of a Child with a Disability, Appeal No. 02-092).

        Although the IEP states and the CPSE chairperson testified that the additional parent member was "waived," (Exhibit G; Transcript p. 62), the circumstances surrounding the absence of the additional parent member at the June 20, 2002 CSE meeting cannot be ascertained from the record. It is the hearing officer's responsibility to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039). I note that the impartial hearing officer actively participated in the hearing and questioned each witness in order to develop the record in this matter. Nevertheless, the record on the issue of the additional parent member is wholly insufficient to support her finding that the additional parent member was improperly excluded. It cannot be determined from the record whether the absence of the additional parent member was the result of respondents' affirmative request to exclude the additional parent member within the meaning of the regulation, or if the absence was the result of an improper waiver (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-096). I find that no determination regarding the additional parent member could be made on this record. The impartial hearing officer was required to develop the record on this issue by questioning the witnesses regarding the absence of the additional parent member in order to support her determination (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039). Therefore, I am constrained to find that the record does not support the hearing officer's determination that the additional parent member was improperly excluded from the June 20, 2002 CSE.

        Nevertheless, I agree with the impartial hearing officer's determination that the regular education teacher was not present at the June 20, 2002 CSE meeting. Both the IDEA and New York Education Law require the participation of a regular education teacher at a CSE meeting "... if the child is, or may be, participating in the regular education environment" (20 U.S.C. § 1414[d][1][B][ii]; 34 C.F.R. § 300.344[a][2]; Education Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][ii]).

        Petitioner's CPSE chairperson testified that the regular education teacher who attended the June 20, 2002 CSE meeting to formulate the 2002-03 IEP was not the child's regular education preschool teacher at Park Shore (Transcript pp. 58, 59, 62-65). Petitioner's CSE chairperson also testified that the regular education teacher who attended the CSE meeting was not teaching any classes in any of petitioner's schools, rather she was working part time as an SEIT at private schools petitioner had contracted with to provide special education services (Transcript p. 321). In its interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP" (see, 34 C.F.R. Part 300, Appendix A, Section IV, Question 26; Application of a Child with a Disability, Appeal No. 02-080). Although a board of education cannot always be expected to know who the student’s regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

        In the instant case, the June 20, 2002 CSE was the child's initial CSE meeting following a transition from CPSE to CSE (Transcript p. 259). Given this was the child's first CSE meeting (Transcript p. 259) and respondents' well-documented interest in maximum mainstreaming for their daughter (Transcript pp. 481-82, 488, 496, 497, 500-04), the regular education teacher was a required member of the CSE. The absence of such a teacher on petitioner's CSE compromised the development of an appropriate IEP for the student for the 2002-03 school year and deprived the student of educational benefits, which resulted in a denial of FAPE (see, Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

        Since petitioner has failed to comply with the procedural requirements set forth in the IDEA, and such failure has resulted in a denial of FAPE (see, J.D. v. Pawlet Sch. Dist., 224 F.3d at 69; Evans v. Bd. of Educ., 930 F. Supp. at 93-94; W.A v. Pascarella, 153 F. Supp.2d at 153; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-080), I do not determine whether the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Rowley, 458 U.S. at 206-07), nor do I determine whether the recommended program was in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I have considered petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.