98-026

      Petitioner appeals from the decision of an impartial hearing officer which upheld petitioner's challenge to her son's classification by respondent's committee on special education (CSE), but which dismissed her challenge to the educational placement which the CSE had recommended, and which denied her request for an award of tuition reimbursement. The appeal must be dismissed.

        At the outset, I note that respondent objects to my consideration of two exhibits which are attached to the petition, but which were not part of the record before the hearing officer. The documents are a hearing officer's decision ordering respondent to pay for the child's education at the West End Day School for the 1995-96 school year, and a stipulation between the parties that respondent would reimburse petitioner for the cost of the boy's attendance at that private school for the 1996-97 school year. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). Petitioner has not explained why she failed to offer the two documents at the hearing in this proceeding. However, I have decided to accept the documents to provide some information about the child's prior placement to supplement what is an otherwise limited record (Application of a Child with a Disability, Appeal No. 95-41). In doing so, I must note that the prior hearing officer’s decision regarding the 1995-96 school year does not relieve petitioner of her obligation to prove that the West End School was appropriate to meet her son’s special education needs for the 1997-98 school year.

        Petitioner's son is eleven years old. The boy reportedly attended the Riverdale Country School from September, 1991 until June, 1995. He reportedly had academic and social difficulties while attending that private school, and petitioner was reportedly advised by the school to seek another placement for her son. Petitioner referred the boy to the CSE of Community School District No. 10, where she resides. However, that CSE failed to evaluate the child or recommend an educational placement for him. Petitioner enrolled her son for the 1995-96 school year in the West End School, where he apparently repeated the second grade. The West End School is a small private school which serves children who have emotional and/or learning difficulties (Transcript, page 49). However, it has not been approved by the New York State Education Department to instruct children with disabilities.

        In a prior proceeding brought by petitioner to obtain an award of tuition reimbursement for the 1995-96 school year, an impartial hearing officer found that the boy's learning and emotional needs would not be met in a regular education environment, and she directed respondent to pay for the child's attendance at the West End School for the 1995-96 school year. I note that although the hearing officer found that the child had an attention deficit disorder (ADD) and emotional needs which impeded his learning, she did not identify a specific classification for him. Instead, she remanded the matter to the CSE of Community School District No. 3, in which the West End School is located, to designate an appropriate classification for the child and prepare an individualized education program (IEP) for him (Exhibit A to the petition).

        In February, 1997, the parties entered into a stipulation in which they agreed that the child would be appropriately classified as emotionally disturbed during the 1996-97 school year. Respondent agreed to pay for the child's placement in the West End School during the 1996-97 school year, with the proviso that its payment did not establish the private school as his "then current placement" for purposes of the pendency provisions of Federal and State law. The stipulation also provided that respondent had not determined that the West End School was providing the child with special education services or programs. The parties also agreed to cooperate in conducting the CSE's annual review of the child on a timely basis so that the CSE of Community School District No. 3 could recommend a placement for the 1997-98 school year (Exhibit B to the petition).

        On April 29, 1997, petitioner met with a school social worker to update her son's social history. Petitioner indicated that the boy, who had previously taken Ritalin, was being re-evaluated by a pediatric neurologist to determine if he should take medication for ADD or an attention deficit hyperactivity disorder (ADHD). She also indicated that her son had been seeing a psychologist for two years to help him develop socially. I note that at the hearing, petitioner testified that her son had initially received counseling to address issues raised by his parents' divorce, and that the psychologist who counseled the child was now addressing social issues. Petitioner told the school social worker that her son's reading ability had improved while he attended the West End School, but that he had a long way to go in improving his writing (Exhibit 1).

        On April 29, 1997, one of respondent's educational evaluators tested petitioner's son with the Woodcock Johnson Tests of Achievement. The evaluator reported that the child, who was then in the fourth grade, had achieved grade equivalent (and percentile) scores of 5.1 (58) for letter-word identification, 8.3 (93) for passage comprehension, 7.0 (99) for mathematical calculation, and 13.1 (99) for applied problems. The child's overall reading and mathematical skills were reported to be at the sixth and ninth grade levels, respectively. The evaluator reported that the child had good basic decoding skills, but he was not accurate decoding some multisyllabic words. She also reported that the child had an excellent knowledge of concepts for solving mathematical word problems, and did most calculations in his head. She opined that he was not in need of academic remediation at that time (Exhibit 2).

        The child was observed in class at the West End School on May 15, 1997 by one of respondent's school psychologists. She noted that the child fully participated in the class of seven children, but that a fellow student complained that petitioner's son had been rude, and had spit on the desk. The school psychologist also talked to school staff, who reported that petitioner's son was not well liked, and was very silly, selfish and greedy, as well as socially clueless (Exhibit 5).

        On May 20, 1997, the child was evaluated by a CSE school psychologist, who reported that the boy had achieved a verbal IQ score of 142, a performance IQ score of 129, and a full scale IQ score of 139. The school psychologist reported that the child's verbal expression, comprehension, and retention were much more developed than his processing speed for visual material. Although his freedom from distractibility index was in the superior range, the child's performance on a test of his auditory short-term recall was reportedly impaired by a brief loss of attention. His perceptual motor skills were described as being age appropriate. The school psychologist reported that the child's drawings for projective testing were somewhat immature, but that his responses to questions indicated that he was socially and emotionally well adjusted (Exhibit 3).

        The child was privately evaluated by a psychologist on June 11, 1997. She reported that on the Wechsler Individual Achievement Test, the child had achieved grade equivalent (and percentile) scores of 3.2 (16) for basic reading, 11.3 (94) for reading comprehension, 10.8 (99) for mathematics reasoning, and 3.9 (32) for spelling. On the Woodcock Reading Mastery Tests – Revised, the child achieved grade equivalent (percentile) scores of 16.9 (90) for visual-auditory learning and 2.3 (13) for word attack skills. His performance on the Lindamood Auditory Conceptualization Test was reported to be at the first to early second grade level. On the Test of Written Language – Second Edition, the child's percentile scores were 16 for thematic maturity, 25 for contextual vocabulary, 37 for syntactic maturity, 16 for contextual spelling, and 25 for contextual style. His spontaneous writing quotient was at the 16^th percentile. With the exception of his score for syntactic maturity which was in the average range, each of the child's writing scores was in the low average range. The psychologist described the child as bright, but hampered by a fundamental dysfunction in the phonological components of his capacity for language, as manifested by his weak reading decoding and spelling skills. She suggested activities which could improve the child's phonemic awareness, and recommended that he continue to work on his writing skills (Exhibit 2).

        On August 1, 1997, petitioner and the Education Coordinator for the West End School , who was also the child's mathematics teacher, met with the CSE of Community School District No. 3 to review the results of the child's evaluations and prepare an IEP for the 1997-98 school year. The CSE recommended that the child be classified as learning disabled, rather than as emotionally disturbed. A CSE member testified at the hearing in this proceeding that the May 15, 1997 observation report had not indicated that the child had significant management needs as a result of his alleged emotional disability, and that the private psychologist's test results had indicated that the child's reading decoding and spelling deficits were greater than those which had been reported by respondent's educational evaluator in April, 1997. As a result, the CSE determined that the child would be more appropriately classified as learning disabled. The CSE also recommended that the child be educated in regular education classes, with four periods per week of supplemental instruction in a resource room, and one period of individual counseling and one period of counseling in a small group per week. The child's IEP indicated that he was to have flexible scheduling and extended time limits for tests. His IEP annual goals included improving his spelling, phonics, and writing skills, and improving his ability to learn from experience and his relationship with peers. On August 5, 1997, respondent offered petitioner a placement at P.S. 87 for the 1997-98 school year.

        Petitioner requested an impartial hearing, which was adjourned by consent on three occasions prior to being held on January 13, 1998. At the hearing, respondent's educational evaluator opined that the child's academic skills were consistent with his cognitive ability, but she explained that he was learning disabled because of the discrepancies between his letter/word identification and his passage comprehension skills and between his mathematical calculation and applied problem solving skills. She conceded that she had not tested the child's spelling, writing, and organizational skills. The school psychologist who had observed the child in class at the West End School opined that petitioner's son may have lacked social skills, but he did not evidence the characteristics of an emotionally disturbed child. The West End School Education Coordinator testified that petitioner's son did not need a special education placement because of his academic deficiencies, but he did need that kind of a placement for social and emotional reasons. She also testified that the child had a very hard time maintaining social relationships because he did not understand the effect which he had on others and was unable to take responsibility for his actions. The Education Coordinator further testified that the child could not tolerate being wrong, and needed to become more of a cooperative learner. She opined that he would be unable to function in a regular education class of 25-30 chronological peers.

        In his decision which was rendered on April 1, 1998, the impartial hearing officer reviewed the criteria for classification as emotionally disturbed (34 CFR 300.7 [b][9]; 8 NYCRR 200.1 [mm][4]) and as learning disabled (34 CFR 300.7 [b][10]; 8 NYCRR 200.1 [mm][6]). He concluded that the child could not be classified as learning disabled because there was insufficient evidence of a basic psychological disorder, or of any significant inability to use language or do mathematics. The hearing officer found that although the child's emotional difficulties had not impaired his academic performance, they had impaired his socialization. He therefore found that the child should be classified as emotionally disturbed. However, he further found that the child's special and emotional concerns could be addressed through counseling and that his academic deficits could be addressed in a resource room program.. Consequently, he upheld the recommendation that the child receive resource room services and counseling. The hearing officer remanded the matter to the CSE to consider whether occupational therapy would assist the child in developing his handwriting.

        Petitioner contends that the CSE violated her rights by asking her and the West End School's Education Coordinator to step out of the room while the CSE deliberated upon its recommendation. A CSE must afford a child's parent a meaningful opportunity to participate in the development of the child's IEP (Application of a Child with a Disability, Appeal No. 96-31). A CSE does not satisfy its obligation by merely listening to the parent's concerns, and then unilaterally preparing the IEP (Application of a Child with a Disability, Appeal No. 93-42). However, a CSE may discuss a child's classification or placement in the absence of the child's parent (Application of a Child with a Handicapping Condition, Appeal No. 90-18). Having reviewed the testimony of petitioner and the Education Coordinator, I find that neither witness testified that the child's IEP was prepared while they were not present, or that they were not allowed to say whatever they wished to the CSE. Under the circumstances, I find that petitioner's contention is without merit (Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1).

        I must briefly note that although respondent has not cross-appealed from the hearing officer's decision with regard to the child's classification, it nevertheless asserts in its answer that the hearing officer did not find that petitioner's son was either emotionally disturbed or learning disabled within the State definitions. Absent an appeal or cross-appeal from that portion of the hearing officer's decision, I am precluded from addressing the issue of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). Consequently, the child is deemed to be emotionally disturbed for the purposes of this proceeding.

        Petitioner asserts that her son required a full-time special education placement during the 1997-98 school year, rather than the part-time special education program which the CSE recommended for him. She contends that her son has poor handwriting, as well as processing problems, and that he has difficulty following directions. In addition, petitioner asserts that her son cannot tolerate frustration and has social problems.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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 child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        A child's IEP must report his or her present levels of performance and indicate the child's individual needs in the areas of academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4 [c][2][i]). This child's IEP (Exhibit 7) includes the results of the psychological and educational evaluations by respondent's staff in the spring of 1997, but it does not include the results of the private evaluation which was done in June, 1997. This omission is significant because the IEP's description of the child's cognitive ability and academic achievement do not, in my judgment, afford a basis for providing any special education instruction to the child. The private evaluation had identified some potential academic needs in terms of the child's basic reading and writing skills. The IEP's two broad academic annual goals to improve his spelling/phonics and writing skills appear to be based on the private evaluator's report. However, neither the goals nor their supporting short-term instructional objectives were written with sufficient precision to provide much guidance to the child's teachers as to the CSE's expectations and they lack objective criteria for assessing the child's progress (cf. 34 CFR 300.34 [a][5]; 8 NYCRR 200.4 [c][2][iii]). The child's IEP does include a statement by his teacher with regard to the boy's social needs which does afford a basis for providing counseling to him. However, I find that the annual goals and objectives to address the child's social needs are vague. Having reviewed the child's IEP, I must conclude that it is defective. Consequently, I find that respondent has not met its burden of proof with regard to the appropriateness of the educational program which its CSE had recommended.

        A board of education may be required to pay for educational services which a child's parent has obtained for the child, 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 Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the West End School has not been approved by the State Education Department to provide instruction to children with disabilities is not dispositive of petitioner's claim (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). I have found that respondent failed to meet its burden of proof with respect to the first of the three criteria for an award of tuition reimbursement. The burden of proof now shifts to petitioner (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57).

        In order to meet that burden, petitioner must show that the services which she obtained for her son at the West End School were "proper under the act" [Individuals with Disabilities Education Act](School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). In this instance, the child's teacher conceded that the child didn't need to be in the West End School for academic reasons. The teacher's testimony did not reveal what, if anything, the private school was doing to address the boy's deficits in spelling and handwriting. Instead, the teacher and petitioner insisted that the child should remain in the West End School for social reasons. However, neither witness described what the private school was doing to meet the child’s social needs. I note that the child apparently received some counseling at the school, in addition to private counseling once per week outside of school. However, there is nothing in the record to describe the goals of the child's counseling at school, and little, if any, evidence of the success of that counseling. Upon the record which is before me, I am constrained to find that petitioner has failed to meet her burden of proof with respect to the second criterion for an award of tuition reimbursement.

THE APPEAL IS DISMISSED.