03-038

       Petitioner, Board of Education of the Half Hollow Hills Central School District, appeals from an impartial hearing officer's decision finding that it had not offered respondents' son a free appropriate public education (FAPE) by placing the student in its Intensive Primary Class (IPC) for the 2002-03 school year. The appeal must be dismissed.

        Respondents' son was five years old and attending the Young Autism Program (YAP), a full day, twelve month, ABA (applied behavioral analysis) pre-school, at the time of the commencement of the impartial hearing in October 2002. After prior minimally effective home-based ABA therapy and center-based experience at another pre-school (Transcript p. 526, Exhibit Parent 14), the student was placed at YAP for the 2001-02 school year, upon the recommendation of petitioner's Committee on Pre-School Special Education (CPSE). He remained enrolled at YAP during the 2002-03 school year as a pendency placement, awaiting the outcome of his due process challenge. His pre-school classification as a pre-school child with a disability was changed to a classification of autistic in 2002, when he became elementary school age at five years old. His classification is undisputed.

        The child was functioning below his chronological age in the areas of cognitive ability and language development, as shown by a composite mental development index of less than 50 on the Baylis Scales of Infant Development (Baylis Scales), and a total language score of 51 on the Pre-School Language Scale-3 (PLS-3), both tests having been administered in May 2000. Ten months later, the Rossetti Infant Toddler Language Scale (RITLS) revealed the student's language skills at age level equivalents ranging from six months to twenty-four months old. The Michigan Early Intervention Developmental Profile (MEIDP) ranked the student's developmental levels at a twenty to twenty-three month old age equivalent. The child also had significant deficits in communication, socialization, and adaptive behavior as assessed by the Vineland Adaptive Behavior Scales (Vineland) (Exhibit District 4, Parent 4). As of April 2002, the student's annual progress report from his special education itinerant teacher affirmed that the child was functioning below age appropriate levels of achievement in the areas of cognitive, socialization and language development (Exhibit District 6). The student's generalization problems also yielded periods of latent regression (Exhibit District 1). As a result of these deficiencies, the child required an intensive, highly structured program that emphasized the acquisition and subsequent transfer or generalization of academic, social, and daily living skills to his home and community (Exhibit Parent 10).

        To accommodate the student's needs, the amended 2002-03 individualized educational program (IEP) proposed by the Committee on Special Education (CSE) recommended the twelve-month, district IPC program. This was a 8:1:4 self-contained class with a full-time paraprofessional assigned to the child, for six hours a day, five days a week. The IEP also recommended daily individual speech services four times a week, and consultant services once a week. It included group parent training once a month for an undisclosed period of time, individual parent training once a week for a one-hour session, and home training ten hours per week. Also recommended were consultant services, team meetings, a behavioral intervention plan and a transition plan (Exhibit District 4).

        Respondents disagreed with the recommended IEP and placement. By letter dated August 15, 2002, respondents requested an impartial hearing, objecting to the July 12, 2002 CSE recommendation placing their son at the self-contained IPC program in the district for the 2002-03 school year. Respondents requested their child's continued placement at YAP for the 2002-03 school year, and, within the same document, acknowledged that their son might be placed in the district's program for the 2003-04 school year (Exhibit District 9).

        An impartial hearing commenced on October 10, 2002 and concluded on December 30, 2002. The hearing officer rendered his decision on March 10, 2003. He found that respondents had adequate opportunity to express their views at the CSE meeting, despite their dissatisfaction with the placement decision. Although the hearing officer found that the prior, written notice failed to include information required by Part 200 of the regulations of the Commissioner of Education, the omitted information was not found to be prejudicial to the parents. However, the IEP's short-term objectives and evaluations were found to be inadequate, and petitioner's failure to include an additional parent member as part of the CSE was found to be a violation of such magnitude as to conclude that the district had not met its burden to provide an appropriate educational placement for the student. Moreover, the hearing officer found that respondents had met their burden of establishing that the educational services that they selected were appropriate, and further found that equitable considerations supported the parents' claim. Petitioner was assigned responsibility for the student's tuition at YAP for the 2002-2003 school year.

        Petitioner seeks a determination that it provided a free appropriate public education for the student for the 2002-03 school year, and that YAP was not an appropriate placement for the child. Respondents assert that the IEP and evaluations were inadequate, and the CSE composition was invalid due to the lack of an additional parent member and regular education teacher. Respondents seek a determination sustaining the hearing officer's decision and dismissing the appeal.

        The purpose behind the Individuals with Disabilities Education Act (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). 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). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401(11); 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]).

        The Commissioner's regulations mandate that the CSE shall recommend that the board of education arrange for appropriate programs and services to be provided to a student with a disability (8 NYCRR 200.4[d]). The CSE shall include but not be limited to: the parents of the student, at least one regular education teacher of the student, the student's special education teacher or provider, the district's special education supervisor or provider, the school psychologist, a special education provider or supervisor who is also knowledgeable about the general curriculum and availability of resources, an individual who can interpret the instructional implications of evaluation results, a school physician. . . , an additional parent member, others with knowledge or special expertise regarding the student, and the student, if appropriate (8 NYCRR 200.3 [a][1]).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; 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 Educ. Dept. Rep. 487 [1983]). 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 US 176, 206-207 [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]).

        Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). The initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, but rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent.Sch.Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

        Procedural flaws do not automatically require a finding of a denial of 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 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; 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 first asserts that the hearing officer erred when he concluded that the district did not base its 2002-03 recommendations upon recent evaluative data. Federal and State regulations require an IEP to include a statement of the student's present levels of educational performance, with a description of the manner in which the student's disability affects his or her progress in the general curriculum (20 U.S.C. § 1414[d][1][a]; 34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine a student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section I, Question 1).

        Here the IEP listed current evaluations, including the Vineland, Baylis Scales, and PLS-3 completed in May 2000 and the RITLS and MEIDP, completed in March 2001(Exhibit District 4). When the CSE convened in July 2002, it had the results of these evaluations, all completed within two years of the CSE meeting, in compliance federal and State regulations (20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][4]). Additionally, the most current, accurate, and thorough information available to the CSE was through the YAP progress reports. The nature of an ABA program is such that it provides daily data sheets, and weekly and monthly charts (Transcript p. 404, Exhibit Parent 13) indicating progress on goals and objectives at a level of specificity that could not possibly be obtained in an isolated evaluation setting. The CSE had access to detailed information regarding the child's current performance levels, as provided by the YAP teachers who attended the meeting (Transcript pp. 239, 324, 389, 403-05, 439-440, 453). This was reflected in the IEP document itself, which included specific statements describing the child's current functioning in academic, cognitive, language, management, physical and social domains (Exhibit District 4, pp. 3-4). The claim that a change in placement was made without formal evaluations is inaccurate because the information available from YAP staff exceeded what could be obtained from a single session evaluation.

        Further, the hearing officer's reference to decisions regarding a change in placement is incorrect. The hearing officer stated that the CSE did not have "current tests and evaluations to show that the student required a change in program." The need for a change in program is not at issue here. The district contracted with YAP for preschool ABA programming because the district itself offered no such program. However, the district offered a kindergarten program that was appropriate for the child. The CSE was not identifying the need for a change, but rather offering an appropriate placement available within the child's home district. Therefore, I find that the evaluative data used to formulate the 2002-03 IEP and determine appropriate placement was valid, and in compliance with federal and State mandates (20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][4]).

        Petitioner further asserts that the hearing officer erred when he found that the IEP did not include required benchmarks or measurable short-term IEP instructional objectives. The progress report format chosen to measure required benchmarks included a series of four checkboxes next to each objective to assess quarterly progress (Exhibit District 8), and was a standard, acceptable evaluation instrument. I find no procedural violation here. Petitioner next questions the credibility determinations made by the hearing officer. I find that there is no basis in the record for me to substitute my judgment for that of the hearing officer's judgment regarding witness credibility (Application of a Child with a Disability, Appeal No. 01-019), and further find no procedural violation here.

        Finally, the last allegation of procedural violation pertains to the improper composition of the CSE, such that no additional parent member and no regular education teacher were represented on the committee. Both federal and State regulations mandate the presence of a regular education teacher on the CSE 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]; 8 NYCRR 200.3[c][2][ii]). Appendix A clarifies this further by requiring a regular education kindergarten teacher to be a member of the IEP team for a child with a disability, in situations wherein the public school district provides kindergarten to non-disabled children, and the disabled child is or may be participating in the regular education environment (Part 300, Appendix A, Section I).

        In the instant case, the 2001-02 IEP listed a general education teacher as a member of the CSE (Exhibit Parent 3). However, the 2002-03 IEP failed to cite a regular education teacher as a member of the CSE (Exhibit District 4). In addition, neither the record nor the petition included a regular teacher amongst those represented as members of the CSE (Petition p. 3, Transcript pp. 208-210). The record clearly refers to the child's educational program as incorporating specials such as art, music, and physical education according to the attention span and ability of the individual child (Transcript pp. 259-260).

        The lack of a regular education teacher on the CSE deprived the child of the regular teacher's perspective and input in the development, review, and revision of the child's IEP, in violation of 20 U.S.C. § 1414(d)(3) and (4) and (4)(B), 34 C.F.R. § 300.346(d), and 8 NYCRR 200.3(d). Therefore, 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). Because the CSE was invalidly composed due to the lack of a regular education teacher, I do not address its lack of additional parent member. Accordingly, based on a review of the record, the school district cannot meet its burden of proving that its recommended program was appropriate for the 2002-03 school year (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-013; Application of a Child with a Disability, Appeal No. 01-096).

        I must now consider whether respondents have met their burden of proving that the services provided to the student by YAP during that school year were appropriate (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school provided services that were proper under the IDEA to the student (Burlington, 471 U.S. 359, 370). The record shows that during the 2002-03 school year the student's needs included individualized instruction in a special education setting. He was functioning below his chronological age in the areas of cognitive abilities, language development, socialization, communication skills, generalizations skills, and adaptive behaviors, and required a highly specialized educational program to facilitate the acquisition, application, and transfer of these skills across natural environments. ABA therapy was appropriate because the student had demonstrated that his optimal method of learning was through discrete trial instruction. A fulltime paraprofessional was recommended, as well as speech services, parent training, home based services, team meetings, and behavior and transition plans. Because he had not made significant academic and social gains during the 2001-02 school year, an all day, twelve-month program was recommended (Exhibit District 4).

        During the 2002-03 school year, YAP provided the student with an all day, twelve-month, ABA program (Exhibit Parent 3, 8) functionally equivalent with regard to methodology to the district's ABA program (Transcript pp. 361-362); in point of fact, many of the instructors in both the YAP and IPC programs were trained by the same autism specialist (Transcript pp. 362-363). YAP provided the student with a 6:1:3.5 special class, and assigned him a full-time paraprofessional. He also received home-based services, speech services provided through generalist models, and the benefit of team meetings and parent training (Exhibit Parent 3, District 4, Transcript p. 629). These services appropriately addressed the student's needs.

        Because of the school's focus on applied behavioral analysis, a separate behavior intervention plan was unnecessary. The transition plan was understandably interrupted and abandoned once due process proceedings were initiated. YAP's least restrictive environment was satisfied through the child's opportunity to join typically developing children in a separate pre-school located within the YAP building, and to periodically experience additional peer modeling with these children within the special education setting (Transcript pp. 357, 407-408, 623, 641). Therefore, after a thorough review of the record, I find that YAP provided an educational program that met the student's special education needs, and respondents have met their burden of proof regarding the appropriateness of the educational services they selected for the 2002-03 school year (Burlington, 417 U.S. 359, 370).

        The record reveals that the parent cooperated with petitioner's CSE in preparing the student's IEP. In the absence of any other equitable factor, I agree with the hearing officer and find that the parents' claim is supported by equitable considerations. Accordingly, I find that petitioner is financially responsible for the student's tuition at YAP for the 2002-03 school year based upon petitioner's failure to provide a FAPE to the student, the appropriateness of the educational services provided by YAP, and consideration of equitable factors.

        I have considered respondents' remaining claim and find it to be without merit.

THE APPEAL IS DISMISSED.