03-035

      Petitioner, the Board of Education of the Fayetteville-Manlius Central School District, appeals from the decision of an impartial hearing officer that ordered petitioner to reimburse the student's parents for tuition at Jowonio, a preschool approved by the Commissioner of Education to contract with school districts for the education of preschool children with disabilities, for the 2002-03 school year. The appeal must be dismissed.

        I must address two preliminary matters. Respondents, appearing pro se, assert that the appeal should be dismissed as untimely, because the petition was not served within 30 days after receipt of the impartial hearing officer's decision, citing 8 NYCRR 275.16. However, that 30-day limitation applies to appeals to the Commissioner of Education pursuant to Education Law §310. When a board of education appeals to the State Review Officer from a decision by an impartial hearing officer, the petition must be served within 40 days of the board's receipt of the hearing officer's decision (8 NYCRR 279.2[c]). Respondents admit that the petition was served 40 days after petitioner received the impartial hearing officer's decision, and the appeal is thus timely.

        Petitioner also requests that I accept late service of its reply. A reply to respondents' answer must be served within three days after service of the answer, unless the answer was served by mail, in which case the date of mailing and the subsequent two days are excluded from the computation of the three-day period (8 NYCRR 279.6, 279.9). Petitioner states that its answer was due on Monday May 12, 2003, but respondents' counsel was not in the office that day until after regular business hours. The reply was served on May 13, 2003. Although petitioner's reply was not served within the prescribed time periods, I note that there is no evidence of prejudice to respondents by the one-day delay, and I will accept the reply (Application of a Child with a Disability, Appeal No. 00-051).

        At the time of the hearing, the student was a five-year-old boy who had been diagnosed in 1999 with autistic spectrum disorder. The student received early intervention services, and in September 2000 became age-appropriate for preschool services for the 2000-01 school year. Petitioner's Committee on Preschool Special Education (CPSE) recommended that the student attend a special class/integrated setting at the Jowonio preschool for 2½ hours per day. The student also received related services in an integrated setting, typically consisting of 16 preschool students including 6 students with disabilities. The school reported significant progress for the student that year, including communication and socialization skills. For the 2001-02 school year, the CPSE recommended that the student continue to receive special education and related services in the inclusive preschool class at Jowonio, and the student's school day was increased to 4½ hours (Exhibit District 2; Transcript p. 46). The student showed great improvement during the 2001-02 school year.

        The student turned five years old in November 2002. On June 4, 2002, the CPSE and the Committee on Special Education (CSE), of the elementary school the student would be assigned to based on his home address, met to prepare for the student's transition from preschool to school-aged services in the 2002-03 school year (Exhibit District 6). The student's mother was present at the meeting, as well as the parent representative to the CSE, but no regular education teacher from either the elementary school kindergarten or Jowonio was present. The student's special education teacher from Jowonio recommended that he attend a fully inclusive kindergarten setting for the 2002-03 school year. Petitioner's kindergarten program is only a half-day program. Although the special education teacher did not specifically recommend at the CSE meeting that the student attend kindergarten for a full school day, she testified at the impartial hearing that she had originally planned to recommend a full-day inclusive kindergarten program, but had changed the recommendation at the direction of her supervisor because petitioner did not offer a full-day kindergarten (Transcript p. 431). She testified that she did not think that a half-day program was sufficient (Transcript pp. 431-32).

        The CSE recommended a regular half-day kindergarten class, with the special education support of a full-time 1:1 teacher assistant, two hours of consultant teacher time per week, 30 minutes of speech therapy 5 times per week on both an individual and group basis, and occupational therapy for 30 minutes twice a week in a group of up to 3 students (Exhibit District 13). The CSE further recommended that the student's school day be extended by a minimum of 30 minutes per day so that he would not need to be pulled out of classroom activities for related services. Respondents objected to the proposed program. They believed that, because of the student's late birthday on November 13, just 17 days before the December 1 cut-off date for kindergarten eligibility, he was too young and not ready for kindergarten. Respondents also believed that the student needed an integrated program for longer than the half-day program recommended by the CSE, and requested that the CSE recommend that the student attend a full-day program at Jowonio for 2002-03 at district expense. Due to the lack of consensus, the CSE chairperson determined that the individualized education program (IEP) would reflect the CSE's recommended services at the half-day kindergarten program at the home elementary school. In addition to the kindergarten placement for fall 2002, the CSE placed the student in a program at Jowonio for summer 2002, with a special class/integrated setting for 4¼ hours a day plus related services.

        Respondents objected to the proposed kindergarten placement in the IEP, and subsequently unilaterally enrolled the student at Jowonio for the 2002-03 school year. They requested an impartial hearing on September 23, 2002. Respondents asked the impartial hearing officer to declare the 2002-03 IEP inappropriate for two reasons: 1) that the student was not mature enough to begin kindergarten at this time, and 2) that the length of petitioner's kindergarten school day was not appropriate to meet the student's needs. The hearing was held on January 9 and January 14, 2003, and the impartial hearing officer rendered a decision on March 17, 2003. She found, inter alia, that the CSE was not duly constituted because it lacked the regular education kindergarten teacher, and that the IEP was insufficient to provide the student with proper benefit in the larger kindergarten setting. She also concluded that the amount of educational benefit to the student from the half-day kindergarten setting, with extra 30-minutes sessions, was not evident from the IEP. The hearing officer ordered petitioner to reimburse respondents for the tuition at Jowonio for the 2002-03 school year. This appeal ensued.

        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 (School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). 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. Florida U.F.S.D., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, 03-053; Application of a Child with a Disability, Appeal No. 02-092). To meet its burden, a board of education must show that the 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 (20 U.S.C. § 1414[d]; Application of the Bd. of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-092).

        Respondents contend that the June 4, 2002 CSE was unlawfully constituted because there was no regular education teacher at the CSE, which renders the IEP invalid and results in a denial of a free and appropriate public education (FAPE). Procedural flaws do not automatically require a finding of a denial of a FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent’s participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9^th cir. 2003]; Knable v. Bexley City Sch., 238 F.3d 755, 766 [6^th Cir. 2001], cert denied, 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7^th Cir. 1997]; W.A. v. Pascarella, 153 F.Supp.2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student’s right to a FAPE]).

        In the instant case, petitioner concedes that there was no regular education teacher present at the CSE meeting that developed the placement recommendation and IEP for the 2002-03 school year. The lack of a regular education teacher on the CSE deprived the child of the regular teacher's perspective and input in the development of the child's IEP, in violation of 20 U.S.C. §§1414(d)(3) and (4), 34 C.F.R. §300.346(d) and 8 NYCRR 200.3(d). This is especially true here where the student was transitioning in from a preschool program, he was going to be in a public school program for the first time, and he had recognized behavior problems and special needs that would require particular support and assistance from the classroom teacher. The IEP repeatedly noted the need for support and careful planning of environment and routines to address behavior outbursts. The CSE chairperson testified at the hearing that she thought a placement in the regular kindergarten program was appropriate for the child "given the supports that we are providing for him" (Transcript p. 73). Because the regular education teacher would provide many of these supports, the lack of his or her involvement in the discussion of the appropriateness of these supports compromised the development of an IEP reasonably calculated to provide educational benefit. The statutorily required participation of the regular education teacher of the child in the IEP formulation is intended to facilitate the involvement and progress of the child in the general curriculum. As a member of the team developing an IEP for a child participating in the regular education environment, the regular education teacher’s role includes assisting in the determination of appropriate positive behavioral interventions and strategies for the child, and in the determination of supplementary aid and services, program modifications and supports for school personnel that will be provided (see 34 C.F.R. Part 300, Appendix A, Section IV, Questions 24-26). In the instant case, the child’s educational plan lacked input from a regular education teacher in the CSE discussions and decisions on how to modify the general curriculum in the regular education environment for this particular student, thereby denying the child educational benefit and opportunity.

        Petitioner argues that the absence of a regular education teacher in the formulation of the IEP is harmless, because the special education teacher at the elementary school had been present at the CSE meeting and was familiar with the proposed kindergarten placement. However, although the special education teacher was dually certified as a regular education teacher, she had only taught kindergarten for two years out of the 27 years she had been employed by petitioner, and those years were not identified. The record indicates that she was currently providing only special education services to children in kindergarten through fourth grade. I note that Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a special education administrator or a student’s special education teacher to serve also as the student’s regular education teacher member of the CSE (Application of a Child with a Disability, Appeal No. 01-083). The regular education teacher participating in the CSE should not only be appropriately certified to teach the student, but should also be a teacher who is, or may be, responsible for implementing a portion of the IEP (Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-080). I accordingly find that the absence of a regular education 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., supra; Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-038; Application of a Child with a Disability, Appeal No. 02-080). Under the circumstances, I must find that petitioner cannot meet its burden of demonstrating that the program its CSE recommended for the student was appropriate (School Comm. of Burlington, supra; Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-038; Application of a Child with a Disability, Appeal No. 02-092).

        Having found that petitioner cannot demonstrate the appropriateness of the program recommended by its CSE, it is not necessary that I address petitioner's challenges to the hearing officer's other findings regarding the appropriateness of the IEP. I must now consider whether respondents have met their burden of proving that the services provided to the student by Jowonio during the 2002-03 school year were appropriate (M.S. v. Board of Educ., 231 F.3d at 104). 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 (School Comm. of Burlington, supra; Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-038; Application of a Child with a Disability, Appeal No. 02-092). Jowonio provided a full-day inclusive program, and also provided the related services indicated in the student's IEP. I note that the student had shown significant progress during his first two years at Jowonio, and the record indicates that he also demonstrated progress during the 2002-03 school year (see Transcript p. 495). The record also reflects that the "4/5 classroom" at Jowonio provided a curriculum for each four or five-year-old child based on the child's developmental range. If the student was at kindergarten level, the child would receive a kindergarten curriculum (Transcript p. 491). Petitioner contends that the Jowonio placement cannot be an appropriate placement because it is not the least restrictive environment, but parents are not subject to the same mainstreaming requirements as a school board (M.S. v. Board of Educ., 231 F.3d at 105), although mainstreaming may be considered in determining appropriateness. Petitioner further argues that a preschool placement was not appropriate because the student was age-eligible to attend kindergarten. However, Jowonio was approved to provide a kindergarten program, and would provide a kindergarten curriculum to students who were appropriate for such a program. In any event, parents' choice of program need not satisfy the same criteria that would apply to a school district placement. The parents' burden is to show that the chosen program offered an appropriate educational program that met the student's special education needs and was likely to produce progress (Carter, supra; Appeal of a Child with a Disability, Appeal No. 02-080).

        I find that the Jowonio inclusive program was calculated to, and in fact did, confer educational benefit, and the parents have met their burden of proof regarding the appropriateness of the educational services they selected for the 2002-03 school year (School Comm. of Burlington, supra). The record also reveals that the parent cooperated with petitioner's CSE in preparing the student's IEP. Although the hearing officer did not specifically make any finding as to the equities, in the absence of any other equitable factor I find that the parents' claim is supported by equitable considerations. Accordingly, I uphold the hearing officer's decision that petitioner reimburse the parents for the tuition at Jowonio for the 2002-03 school year.

THE APPEAL IS DISMISSED.