04-072

        Petitioner, the Board of Education of the Smithtown Central School District, appeals from the decision of an impartial hearing officer which awarded reimbursement to respondents for the cost of their son's tuition at a private school for the 2003-04 school year. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issues raised in this appeal. In their answer, respondents assert that the petition was not served in a timely manner as required by Part 279 of the Regulations of the Commissioner of Education, and therefore should be dismissed. State regulation provides that a copy of the petition shall be served upon the parent within 35 days from the date of the hearing officer's decision (8 NYCRR 279.2[c]). It further provides that if the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period. In its reply, petitioner's attorney filed an affirmation stating that he timely served the appeal, explaining the circumstances surrounding the service, and asking that any irregularities be excused. Petitioner's reply also includes a request that I reject respondents' answer and memorandum of law because they did not comply with certain requirements set forth in Part 279. I have considered the positions of the parties, and based upon the circumstances presented, I will exercise my discretion and accept the petition as well as respondents' answer and memorandum of law. I note that the notice of appeal rights attached to the hearing officer's decision contains incorrect information regarding the time frame within which to file an appeal. Nevertheless, I remind the parties' attorneys that it is their responsibility to comply with the regulations pertaining to practice on review of hearings for students with disabilities which were amended on January 1, 2004 and have been in effect for almost one year.

        Respondents' son was four years old and attending kindergarten at The Laurel Hill School (Laurel Hill), a private, regular education school in East Setauket, New York, when the hearing began in October 2003. The child is classified as having autism and his classification is not in dispute.

        In December 2000, the child was referred to the Early Intervention program due to speech-language and physical concerns and he began receiving services including speech, occupational, and physical therapy, as well as a program of applied behavioral analysis (ABA) (Parent Ex. S). A developmental evaluation conducted in the spring of 2001 revealed that the child’s cognitive skills were in the expected range for his age, however his motor skills were slightly below age expectancy and his adaptive behavior was moderately delayed. The child received a score of 30 on the Childhood Autism Rating Scale, placing him at the cutoff for autism spectrum disorder. Significant problems were noted in the child's verbal communication, listening response and ability to relate to people. Based on the results of the evaluation, the child was diagnosed with pervasive developmental disorder-not otherwise specified (PDD-NOS). The evaluators made several recommendations including that the child continue to receive early intervention services.

        The child was initially referred to petitioner's Committee on Preschool Special Education (CPSE) in September 2001, and thereafter was classified as a preschool child with a disability (IHO Ex. 1). The CPSE met again in August 2002 to amend the child's individualized education program (IEP) and recommended that he receive a 12-month program with over 40 hours of special education itinerant teacher (SEIT) services, and speech and occupational therapy (IHO Ex. 5). During the 2002-03 school year, the child attended a mainstream preschool program (Tr. p 315).

        A series of evaluations and progress reports were completed during the 2002-03 school year in anticipation of the child's transition to the jurisdiction of petitioner's Committee on Special Education (CSE) and kindergarten in September 2003. The reports revealed that the child's intellect was in the high average to superior range and that he excelled academically, but that he continued to struggle with social interactions (Dist Ex. 17; Parent Exs. R, FF, GG). The child had difficulty expressing his thoughts and his attention was variable (Dist. Exs. 17, 22; Parent Ex. R). However, he was able to "function independently in the classroom with verbal and visual cues to re-direct his attention or behavior" (Parent Ex. 22). The child's nursery school teacher reported that the child required "constant prompting" to participate in group activities and that he had difficulty making eye contact and relating to peers (Dist. Ex. 16). According to the teacher, the child sometimes became emotional in response to changes in routine (Dist. Ex. 16). The child's SEIT noted that the child engaged in echolalia and rote speech, with limited spontaneous speech occurring throughout the day (Dist. Ex. 22). She also observed inconsistent self-stimulatory behavior (humming/singing) along with flapping (id.). The child's speech therapist reported the child's pragmatic language was characterized by lack of response to direct questions, deviations of language, commenting without gaining attention, verbal perseverations, and visual and auditory distractibility (Dist. Ex. 18). The speech therapist noted that although the child appeared to enjoy watching peers, he had no intrinsic motivation to interact with them unless it was "a direct payoff for him, such as gaining a desired item" (id.). An independent speech evaluator reported that the child was able to behave appropriately in a chaotic preschool setting and sustain attention for relatively long periods of time when an activity interested him (Dist. Ex. 14).

        On June 6, 2003, the child participated in the district's kindergarten screening (Parent Exs. V, W). While he performed well on readiness measures, staff observed that the child did not make eye contact, appeared very distracted, demonstrated delayed processing and required questions to be repeated.

        Later that month, petitioner's CPSE met to recommend a program for the child for summer 2003 (IHO Ex. 2). The CPSE recommended that the child receive SEIT services at home and at the summer camp he would be attending, as well as speech and occupational therapy. Petitioner's CSE also met at that time to recommend a program for the child for the 2003-04 school year. Because no agreement was reached, another CSE meeting was scheduled to make formal recommendations with respect to the child's program for the 2003-04 school year (Dist. Ex. 21).

        The CSE reconvened in July 2003 and recommended that the child be classified as having autism (Dist. Ex. 5). For the 2003-04 school year ending June 30, 2004, the CSE recommended that the child be placed in a regular education setting with an individual aide, speech and occupational therapy, ten hours of home ABA services and an autism consultant who would also provide parent training. In separate letters dated August 27, 2003, petitioner advised respondents of the program recommended for their son at the June 2003 CSE meeting (Parent Ex. BB) and the July 2003 CSE meeting (Parent Ex. AA).

     On August 21, 2003, respondents requested an impartial hearing seeking, among other things, reimbursement relating to the 2003-04 school year and summer 2004 (IHO Ex. 4). On August 29, 2003, prior to the commencement of the hearing, respondents' attorney requested that the hearing officer determine the child's pendency placement (IHO Ex. 5). The hearing officer reviewed the parties' written submissions, and on September 3, 2003, he issued a decision ordering petitioner to provide services consistent with a full year program through the agencies identified on the June 2003 IEP pending further development of the record (IHO Ex. 8). In his decision, the hearing officer explained that his determination was not dispositive of the pendency issue because it was not clear whether the district could provide the required "stability and consistency" in the child's education. He indicated that he would determine the issue of whether the "provider, rather than the service" was fundamental to pendency after testimony was completed.

       The hearing with respect to pendency began on October 7, 2003 and was completed on March 5, 2004, after six hearing sessions and over 1200 pages of transcript (IHO Final Pendency Decision p. 2). The hearing officer rendered his final pendency decision on April 18, 2004. He determined that the child's last agreed upon placement was the June 2003 IEP. In addition, he found that petitioner's providers were at least minimally qualified to provide the services offered in the June 2003 IEP, and that petitioner had the capability of delivering the needed services to the child through its own pool of subcontractors. Further, the hearing officer ordered petitioner to transition its providers pursuant to a specific schedule which contemplated that petitioner would be providing all of the related services to the child beginning on July 1, 2004. Neither party appealed the hearing officer's April 2004 final pendency decision.

        The hearing with respect to the appropriateness of the July 2003 IEP continued on March 29 and April 28, and concluded on May 5, 2004. The hearing officer rendered his decision on July 27, 2004. He found that petitioner violated several procedural and substantive requirements set forth in federal and state law and regulation, including the requirement that a regular education teacher attend the CSE meeting. He also found that the child was denied a free appropriate public education (FAPE) because petitioner's CSE did not properly provide for a transition to its providers from the child's current providers. The hearing officer further found that the child benefited from Laurel Hill "in large part because [the child] also had the regular, consistent and full time support at school" of the related service providers as well as related services support after school at home. Finding that the evidence indicated the student made good and meaningful progress with the "combined program of services," the hearing officer determined that such program was appropriate for the child. He made no negative equitable findings against respondents. Accordingly, the hearing officer awarded respondents reimbursement for the cost of their son's tuition at Laurel Hill.

        Petitioner appeals from the hearing officer's decision. It argues that the IEP developed at the July 2003 CSE meeting was appropriate, that its CSE recommended an appropriate program for the child for the 2003-04 school year, and that respondents are not entitled to receive reimbursement for tuition and related services.

        The Individuals with Disabilities Education Act (IDEA) guarantees disabled students a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]). The Supreme Court has determined that tuition reimbursement may be an appropriate remedy for certain enumerated violations of the IDEA (20 U.S.C. § 1415[i][2][A]). A board of education may be required to pay for educational services obtained for a child 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 (Sch. 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 Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        Petitioner 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. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, petitioner must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Procedural violations of the IDEA can result in a finding of a denial of a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [SDNY 1996]; W.G. v. Bd. of Trustees, 960 F.2d 1479, 1484 [9th Cir. 1992]).

        The hearing officer found that the CSE that developed the child's IEP did not include a regular education teacher. The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). The child's regular education teacher's membership at the CSE is particularly important to meeting the statutory requirement that the IEP explain how the child's needs will be met so that the child can be involved in and progress in the general curriculum (64 Fed. Reg. 48, p. 12583). In addition, it is critical that at least one regular education teacher of the child be a member of the CSE and provide input on appropriate supplementary aids and services, including program modifications and supports for school personnel given the IDEA's emphasis on, to the maximum extent appropriate, educating children with disabilities in regular classes with nondisabled children with appropriate supplementary aids and services (64 Fed. Reg. 48, p. 12591).

        Petitioner argues that a regular education teacher who was likely to implement part of the child's IEP was present at the July 2003 CSE meeting. The record shows that the CPSE chairperson served as the regular education teacher member at that CSE meeting (Dist. Ex. 5, Parent Ex. I). While she did not testify at the hearing, her resume was admitted into the record, attached to which was a copy of her permanent certification in "nursery, kindergarten & grades 1-6" (Dist. Ex. 12). Petitioner's administrator of special education and special services testified that at the time of the July 2003 CSE meeting, it was his intention that the CPSE chairperson would be transferred into a regular education kindergarten classroom as the district was scheduled to implement a full day kindergarten program in September 2003 and needed additional kindergarten teachers (Tr. pp. 1814-18).

        I agree with the hearing officer that while the record shows that the CPSE chairperson is certified to teach regular education kindergarten, the record does not show that she otherwise met the criteria to serve as the regular education teacher member at the July 2003 CSE meeting. The fact that she was being considered to fill a regular education kindergarten teacher position in the district for the 2003-04 school year is not sufficient to satisfy the requirement that at least one regular education teacher "of the child", who is or may be responsible for implementing a portion of the child's IEP attend the CSE meeting. I note that prior to the July 2003 CSE meeting, kindergarten placements for the 2003-04 school year had been assigned (Tr. p. 1428). The principal of the district elementary school the child would have attended testified that the child was slated to be in the class of one of the more experienced kindergarten teachers who also had prior experience working with special education students mainstreamed in her regular education class (id.). That regular education kindergarten teacher may have been responsible for implementing the child's IEP and would have qualified as the regular education teacher member of the CSE.

        The CSE recommended that the child attend a regular education kindergarten with related services. Given that the regular education teacher would be the only individual providing direct instruction to the child during the school day, the participation of at least one regular education teacher of the child who is or may be responsible for implementing a portion of the child's IEP was especially important. At the July 2003 CSE meeting, there was no input from a regular education teacher of the child about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24). Nor was there any input from a regular education teacher of the child in the development of the IEP, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel (see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). Under the circumstances, I find that the absence of the regular education teacher from the July 2003 CSE meeting compromised the development of an appropriate IEP, and therefore, denied the child a FAPE (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002; Application of the Bd. of Educ., Appeal No.02-056; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083). Consequently, I find that petitioner has failed to demonstrate the appropriateness of the program its CSE recommended for the child for the 2003-04 school year. Having so found, it is not necessary that I consider petitioner's remaining challenges to the hearing officer's findings regarding the appropriateness of the recommended program.

        With respect to the second criterion for an award of tuition reimbursement, respondents bear the burden of proving the appropriateness of the services provided to their son by the private school (M.S., 231 F.3d 96, 104; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, respondents must show that the private school offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002];).

        As noted above, during the 2003-04 school year the child attended kindergarten at Laurel Hill, a regular education private school, and received related services in accordance with the hearing officer's September 2003 and April 2004 pendency decisions at petitioner's expense. Also as noted above, the hearing officer found that the child benefited from Laurel Hill and that he made good and meaningful progress with the "combined program of services." However, there is no information in the record about the services Laurel Hill provided to respondents' son. Consequently, there is no basis upon which to find that Laurel Hill offered a program that met the child's special education needs (Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 01-083; Application of the Bd. of Educ., Appeal No. 01-066). In light of this determination, I need not consider whether respondents' claim is supported by equitable considerations.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that he found that respondents demonstrated that the services they obtained for their son at Laurel Hill were appropriate and to the extent that he ordered reimbursement to respondents for the cost of their son's tuition at Laurel Hill for the 2003-04 school year.