03-046

        Petitioners appeal from an impartial hearing officer’s (IHO) determination that respondent's committee on special education (CSE) did have a proper policy for audio-taping meetings, that New York State regulation does not mandate that representatives from out-of-district placements participate in CSE meetings, that the CSE did not need to present all placement options, and that the CSE’s placement of the student in a program offered by the Waterville Board of Cooperative Educational Services (BOCES) was appropriate. Petitioners request that respondent be ordered to place their son in the New Hartford Central School District's Developmental Primary program upon his acceptance into the program. The appeal is sustained in part.

        The student was 6 years old at the time that the proceedings were commenced. He is classified autistic. He began receiving early intervention services at the age of 18 months. After the student became ineligible for early intervention services due to his age, the district’s committee on preschool special education (CPSE) continued services. The CPSE placed petitioners' son in the Promise Program (Promise), operated by the United Cerebral Palsy Center of Utica, New York (UCP). The student remained at Promise until he reached that age when transitioning from the jurisdiction of the CPSE to that of the CSE is mandated. Although beyond the age of the pre-school program, the district continued to place the student at Promise without objection from petitioners. The CSE met on June 3, July 25, and September 12, 2002 to develop a program for the student. The procedures utilized and the conclusion reached by the CSE in determining the appropriate placement after the one-year extension at Promise are the matters in contention in this appeal.

        The hearing was conducted over the course of six days. The IHO found that the IEP was insufficient because inter alia, the annual goals contained in the IEP are "impermissibly vague and insufficient to provide meaningful guidance to the teachers who would be required to implement them; the short term goals lack appropriate objective criteria and evaluation procedures and schedules for determining when the student’s short-term goals were to be met;" and there is no correlation between the student’s present functioning levels and certain short-term goals. Notwithstanding his finding that the proposed IEP was substantively inappropriate, the IHO determined that the BOCES program was an appropriate placement. He further found that the absence of a BOCES representative at the CSE meeting of September 12, 2002 did not require the invalidation of the CSE’s determination regarding the placement, pursuant to 8 NYCRR § 200.4(d)(4)(i)(a) and that the CSE chair appropriately exercised authority in carrying out the district's obligation to provide a "free appropriate public education." Finally, the IHO found that the CSE failed to follow specific regulations of the Commissioner of Education requiring that the CSE’s placement recommendations be submitted to the board of education for approval.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.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 with a Disability, Appeal No. 02-028; 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, 206-07 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an individualized education program (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 the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008; 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 agree with the hearing officer that the IEP was impermissibly vague. The evidence shows that the student has significant delays in speech-language skills, motor skills, and social skills (Exhibit 2). The IEP did not include goals and objectives that specifically addressed the student's needs. An IEP must include a statement of measurable annual goals, including benchmarks or short-term objectives related to meeting the student’s needs that result from his disability (34 C.F.R. § 300.347[a][2][i]). The IEP did not include any objectives or benchmarks specifically related to the student's goals. The goals were overly broad and did not provide appropriate guidance to teachers and related service providers. Because the student's goals overly broad, I find that the CSE did not meet its burden of developing an appropriate IEP for this student for the 2002-03 school year. Although the IHO found the IEP inappropriate, he found the placement appropriate. A placement recommendation must necessarily be consistent with the IEP that is developed by the CSE. When a CSE has developed an inappropriate IEP, the placement is also inappropriate. I find that the BOCES placement was inappropriate.

        Although it is not necessary for me address the composition of the CSE because I have already deemed the IEP to be inappropriate, I note that the CSE should have included a representative from BOCES. The Regulations of the Commissioner of Education state:

If the recommended placement is to be in a school operated by an agency or a school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State department or agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends. If the private school or facility representative cannot attend, the school district must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls (34 C.F.R. § 300.349[a][2]; 8 NYCRR 200.4[d][4][i][a]).

        There is no dispute that a representative of the BOCES program did not participate in the CSE meetings held to develop the proposed IEP and to recommend placement. In deviating from the clear and unambiguous language of the cited state and federal regulations, the IHO reasoned that the committee that was developing the IEP could not know which private school or facility to invite until such time as the IEP is developed. The IHO further opined that the State Education Department and the State Review Officer of the State of New York had not provided sufficient clarification and guidance on the implementation of the cited regulations to districts and their committees on special education.

        Although the CSE could not know the exact placement of the student prior to the CSE meeting, it is the responsibility of the CSE to prepare for meetings in advance. The Individuals with Disabilities Education Act (IDEA) encourages meaningful input and participation by all parties to a CSE, especially parents, in order to ensure that a placement recommendation is consistent with the student's needs as identified in the IEP. There is no dispute that the CSE did not benefit from the attendance and participation of a member of the recommended program. Instead, the CSE relied on representations made by representatives of the district to the CSE regarding a short tour that they took during a period when the recommended program was not in normal operation. The record of the proceedings establishes that the district invited a representative of the BOCES to meet with the parents. That invitation was extended in August (Transcript pp. 17). The representative testified that she did not have the impression that she was being invited to attend a meeting of the CSE (transcript pp. 16). She further testified that she could not attend the meeting at the specified time and that she attempted to make her schedule more flexible to accommodate the request to "meet with the parents" (Transcript pp. 17). The BOCES representative did not receive any additional invitations to attend the several meetings of the CSE. I find that the CSE should have included a representative from BOCES.

        Petitioners assert that the CSE inappropriately failed to present all placement options. The responsibility of the CSE is to recommend an appropriate program. The CSE is not obligated to present all options that may possibly be appropriate. The committee did not achieve consensus on the student’s placement because the parents disagreed with the IEP that was developed and the recommendation for placement. In the absence of consensus, the committee chairperson concluded that the proposed placement reflected the determination of the committee. I affirm the IHO’s determination that the CSE chairperson’s representation that the recommendation for placement in the BOCES program was the determination of the CSE is an appropriate exercise of the public agency's authority. The entire regulatory scheme that has been put in place is based on a presumption that there will be instances where "consensus" cannot be achieved. In such instances some action must be taken. It is not appropriate to require that IEP decisions be based upon a majority vote. Where consensus cannot be reached, the public agency charged with providing the FAPE must make a decision and thereafter provide notice of said decision to the parent. The parent may thereafter seek an impartial due process hearing to resolve any disagreements with the public agency’s proposal (Appendix A, question 9).

        I have considered petitioners' assertion with regard to audio-taping of CSE meetings and find it to be without merit. Petitioners request an order directing the CSE to place their son in the New Hartford Central School District's Developmental Primary program upon his acceptance into the program. Because the school year in question is complete, petitioners' request is moot. I note, however, that petitioners' son was not offered an appropriate program for the 2002-03 school year. Because the CSE failed to offer an appropriate program during the previous school year, I direct it to remedy the failure to offer an appropriate program by developing an IEP that includes compensatory services.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is sustained in part; and

IT IS FURTHER ORDERED that respondent shall provide compensatory instruction for that period of time during which the district failed and continues to fail to provide an appropriate program or placement for the student.