06-040

            Petitioner, the Board of Education of the City School District of the City of Buffalo, appeals from that part of the decision of an impartial hearing officer which found that respondents' son was a preschool child during the 2005-06 school year and that the individualized education program (IEP) developed by the Committee on Special Education (CSE) for respondents' son for the 2005-06 school year was a nullity.  It also appeals from the impartial hearing officer's order directing it to provide certain special education and related services to the child.  The appeal must be sustained in part.

            Petitioner attached to its petition a copy of a policy relating to the age of kindergarteners and other matters adopted April 26, 2006, but effective April 24, 2002.  Respondents object.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  The impartial hearing concluded on February 17, 2006.  The document submitted by petitioner did not exist and could not have been offered at the impartial hearing.  In this case, it is evidence of petitioner's current policy and I will accept it for the limited purpose of consideration pertaining to relief.

            Respondents' son was five years old and attending kindergarten at petitioner's P.S. 90 when the impartial hearing was conducted in February 2006.  His cognitive abilities fall within the average range (Parent Ex. F1 at p. 3), while his pre-academic skills are moderately delayed (Parent Exs. F at p. 1, F1 at p. 3).  The child's speech production is severely delayed (Parent Ex. F2 at p. 2).  He has a moderate functional receptive language delay (id.), and he has significant expressive language delays which negatively impact his ability to clearly communicate with others (Parent Ex. F1 at p. 2).  The child also has a history of low muscle tone (Parent Ex. F4 at p. 1), and mild deficits in fine motor skills and sensory processing (Parent Ex. F5).  His medical history includes tethered spinal cord syndrome, kidney reflux, seizures and frequent ear infections (Parent Ex. F1 at p. 2).  The child's eligibility for special education programs and services as a child with a speech or language impairment (see 8 NYCRR 200.1[zz][1]) is not in dispute (Pet. ¶ 4; Answer ¶ 4). 

            The child began receiving services through the Early Intervention Program when he was five days old (February 17, 2006 Tr. p. 8).  On December 10, 2003, just before the child turned three years old, petitioner's Committee on Preschool Special Education (CPSE) met and recommended that the child be classified as a preschool child with a disability (Parent Ex. C4 at p. 1).  The CPSE further recommended that the child be placed in a special class at an early childhood agency and that he receive occupational, physical and speech therapy (id.).  For the 2004-05 school year, the CPSE recommended a 12-month program through the same agency and continuation of occupational, physical and speech therapy (Parent Exs. C1, C2).  In addition, the CPSE recommended that, commencing September 2004, the child participate in a regular education environment on a part-time basis (Parent Ex. C1 at p. 4).

            By letter dated November 17, 2004, petitioner advised respondents that their son would be eligible for kindergarten programming during the "upcoming school year" (Parent Ex. E11).¹  The letter further advised respondents that "a review of your child's eligibility for school age special education support may now be part of the preschool annual review process" (id.).  The CPSE sent respondents notice of an annual review meeting for their son scheduled for February 11, 2005 (Parent Ex. E7).  Various evaluations of the child were conducted in anticipation of the meeting (see Parent Exs. F, F1, F2, F3, F4, F5, F6).

            The CPSE met on February 11, 2005 to recommend the child's program for summer 2005 (Parent Ex. C).  The CSE also met that day to recommend a program for the child for the 2005-06 school year.  The CSE recommended that the child be classified as having a speech or language impairment and that he be placed in special education classes with a level of support of 15:1 (Parent Exs. D at p. 10, D1 at p. 10), at P.S. 39 (February 17, 2006 Tr. p. 14).  It further recommended that the child receive physical therapy and speech therapy (Parent Ex. D at p. 11).

            The child began attending kindergarten at P.S. 39 at the beginning of the 2005-06 school year (February 17, 2006 Tr. p. 20).  After an incident in the classroom on September 22, 2005 involving their son, respondents removed him from P.S. 39 (February 17, 2006 Tr. p. 42).  On October 28, 2005, the child began attending P.S. 90 (February 17, 2006 Tr. p. 45).  The child did not attend school or receive services between September 23 and October 27, 2005 (February 17, 2006 Tr. pp. 42-43).

            Respondents requested an impartial hearing on November 22, 2005, alleging, among other things, that petitioner failed to offer their son a free appropriate public education (FAPE).  The impartial hearing was held on February 16 and 17, 2006.  At some point during the proceedings, the impartial hearing officer determined that the child's pendency placement was P.S. 39, however, the parties subsequently agreed that the child would remain at P.S. 90 (IHO Decision, p. 11).

           The impartial hearing officer rendered his decision on March 17, 2006.  Relying on N.Y. Education Law § 4410[1][i] which defines preschool child as a child with a disability "who will not have become five years of age on or before December first of the school year, or a later date if a board establishes such later date for eligibility to attend school," and on a policy adopted by petitioner in April 2002 that provided that a student "must be five (5) years of age or more on December 1st in order to register for Kindergarten" (see Parent Ex. Q2), the impartial hearing officer found that the child was  eligible for preschool services during 2005-06  because he turned five after December 1, 2005.  Accordingly, the impartial hearing officer found that the responsibility to develop the child's IEP for the 2005-06 school year rested upon the CPSE.  He further found that the CSE lacked jurisdiction or authority to develop an IEP for the child when it met in February 2005, and he declared the IEP to be null and void.  Having determined that the CSE's actions and recommendations were a nullity, the impartial hearing officer found it unnecessary to review or rule upon respondents' remaining allegations concerning the February 2005 CSE meeting and the resulting IEP.  The impartial hearing officer also found that because the CPSE took no steps to prepare an IEP for the child for the 2005-06 school year, the child was not offered an appropriate special education program, and therefore had been denied a FAPE since the commencement of the 2005-06 school year.

            As relief, the impartial hearing officer referred the matter to the CPSE to reconvene and prepare an IEP for the child for the balance of the 2005-06 school year.  In addition, the impartial hearing officer considered testimony by a coordinator for petitioner's CSE regarding the willingness of the CSE to provide certain special education and related services to the child to be an "agreement," and made that "agreement" part of his decision.  He ordered that "to the extent that District has made such concession or agreement but has not yet provided to Student those services  . . . District is hereby directed to comply with its agreement with Parents regarding such additional services" (IHO Decision, p. 18).

            Petitioner Board of Education appeals from the impartial hearing officer's determination that the child was a preschool child and that the February 2005 CSE and resulting IEP were nullities.  With respect to the impartial hearing officer's order directing it to comply with its "agreement" regarding additional services, petitioner alleges that there was no agreement and requests that the impartial hearing officer's decision be reversed to the extent that he misapprehended that an agreement existed.

            A purpose behind the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).²  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).³  A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            As noted above, petitioner appeals from the impartial hearing officer's determination that the child was a preschool child as a matter of law and that the February 2005 CSE and resulting IEP were nullities.  Petitioner asserts that at the hearing it established a January first date for eligibility to attend school as permitted by state law (see N.Y. Educ. Law § 4410[1][i]), and, because the child turned five before that date, he was no longer a preschool child.

            I find that petitioner failed to offer a FAPE to the child for the 2005-06 school year regardless of whether the child was a preschool child under the jurisdiction of the CPSE or a school-age child under the jurisdiction of the CSE.  As the impartial hearing officer found, the CPSE failed to develop an IEP for the student for the 2005-06 school year, and as discussed below, the CSE that developed the child's IEP for the 2005-06 school year was improperly composed compromising the development of an appropriate IEP.

            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. § 3 00.344[a][2]; see also 8 NYCRR 200.3[a][1][ii]).  In its official interpretation of the regulations, the United States 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 regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions 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" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).

            The record shows that when the CSE met in February 2005, the child was in an integrated setting and had been participating part-time in the regular education environment since September 2004.  Because the child was participating in the regular education environment, the CSE should have included at least one regular education teacher of the child.  The record shows that no regular education teacher was present at the February 2005 CSE meeting (Tr. pp. 163-64). In this case, an appropriate regular education teacher would have been able to contribute to discussions with respondents and other CSE members of what supplementary aids and services, program modifications, curricular modifications, and school personnel support were available and would have been appropriate to ensure the child's involvement in the general curriculum and participation in the regular education environment.  This was especially important since the child had participated in the regular education environment in preschool and the CSE recommended that he be placed in a special education environment for his classes and other activities (Parent Ex. D1 at p. 10).  Under the circumstances, I find that the lack of an appropriate regular education teacher at the February 2005 CSE meeting compromised the development of the child's IEP, deprived him of educational benefit, and infringed upon respondents' opportunity to participate in the IEP formation process.

            I note that respondents raised other challenges to the CSE composition.  They asserted that the absence of an occupational therapist from the CSE meeting deprived their son of an educational opportunity because the CSE did not recommend occupational services despite the recommendations of the occupational therapist (Parent Ex. F5).  They also asserted that the February 2005 meeting was their first CSE meeting and that had an additional parent member been present, that parent may have identified any procedural violations.  As I have already determined that petitioner failed to offer a FAPE to the child, it is not necessary to address respondents' other challenges to the CSE composition.

            Having found that respondent failed to offer to provide a FAPE to the child for the 2005-06 school year, I must now determine whether there is an appropriate remedy.  The impartial hearing officer referred the matter to the CPSE.  However, the child is now five years old and petitioner's current written policy, now consistent with its practice, provides for a January first date for eligibility to attend school.  Consequently the child is no longer the responsibility of the CPSE. As respondents wanted their son to continue in preschool for the 2005-06 school year (Tr. pp. 12, 13), and, for all practical purposes the 2005-06 school year has ended, there is no meaningful relief that could be granted regardless of which committee originally had jurisdiction of the child.  I note that with the exception of the time period between September 23 and October 28, 2005, as of September 2005 through at least the conclusion of the impartial hearing, the child attended kindergarten.

            With respect to the impartial hearing officer's order directing petitioner to comply with its "agreement" to provide certain special education and related services, I agree with petitioner and find that the testimony of the CSE coordinator does not support the existence of an agreement between the parties.  Rather, the CSE coordinator only testified about the willingness of the CSE to provide certain services.

            Under the circumstances, I will order that additional services be provided, as appropriate.⁴  However, the impartial hearing record does not clearly indicate what additional services are currently appropriate to remedy the denial of a FAPE to the child during the 2005-06 school year.  Accordingly, I cannot determine from the record what additional services may be warranted in this case.  Therefore, I will direct the parties to reconvene at a CSE meeting to consider what additional services, including services over the summer, are appropriate to make up for the denial of a FAPE, if they have not done so already.  Once it is determined what additional services are appropriate, those services should be provided (Application of the Bd. of Educ., Appeal No. 04-016). I encourage the parties to work cooperatively to ensure that the child receives appropriate services.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that the impartial hearing officer found that petitioner agreed to provide certain special education and related services to the child and to the extent that he ordered petitioner to provide specific services; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, petitioner shall convene a CSE meeting and determine whether the child is in need of additional services because of the denial of a FAPE as discussed above; and

IT IS FURTHER ORDERED that if the CSE determines that the child is in need of additional services because of the denial of a FAPE, those services shall be provided to the child.