98-076

         Petitioner appeals from a hearing officer's decision which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition at the Winston Preparatory School (Winston) in which he had unilaterally enrolled the boy for the 1997-98 school year. The hearing officer found that the individualized education program (IEP) which respondent's committee on special education (CSE) prepared for the boy lacked annual goals for the special education services which the CSE had recommended for the child, but she denied petitioner's reimbursement request on the ground that he had failed to prove the appropriateness of the services which Winston had provided to his son. The appeal must be dismissed.

        At the outset, I note that petitioner contends that the hearing officer's decision should be annulled because she failed to disclose that her husband was an assistant principal employed by respondent. Petitioner asserts that he did not become aware of the husband's employment until October, 1998, which was after the hearing in this proceeding had concluded. Petitioner's attorney raised a similar argument in another appeal, Application of a Child with a Disability, Appeal No. 98-51, in which I noted that the hearing officer's husband was employed in Community School District No. 6 and that the subject of that proceeding was a recommendation by the CSE of Community School District No. 3. I further noted that there was no evidence that the hearing officer's husband had participated in the CSE's recommendation which was being reviewed, and found that the hearing officer was not precluded from serving by the literal terms of the Federal and State regulations regarding the impartiality of hearing officers. I nevertheless express my concern about the hearing officer's failure to disclose her husband's employment so that any question about her impartiality could have been addressed at the beginning of the hearing. The instant proceeding also involves the CSE of Community School District No. 3, and there is no evidence to any relationship between the hearing officer and anyone who was involved in the CSE's recommendation. I find that there is no evidence of any bias against petitioner in the record, and I will not annul the hearing officer's decision because of her failure to disclose her husband's employment. Respondents' Office of Impartial Hearings should send a copy of this decision to the hearing officer to ensure that she makes an appropriate disclosure in the future.

        Petitioner's son is 15 years old. He was reportedly delayed in achieving his language milestones as a young child. The boy attended a bilingual kindergarten program at the Flemming School during the 1989-90 school year. During the 1990-91 school year, the boy's first grade teacher at the Flemming School reported that the boy was having difficulty learning to read, distinguishing sounds, and maintaining his focus. Private evaluations revealed that he was of high average intelligence, but his language skills were delayed and he had weak visual memory. The boy was reportedly diagnosed as having an attention deficit disorder (ADD) while in the first grade, and has taken medication to address his ADD since then.

        The child was reportedly referred to the CSE of Community School District No.2 in 1991. That CSE reportedly classified the boy as learning disabled, and offered to provide resource room services to him at P.S. 3, which was across the street from St. Luke's, the private school which he was then attending. The CSE also reportedly offered to provided speech/language therapy to the boy. At the hearing in this proceeding, the child's mother testified that she had not accepted the offered services because she believed they would have been disruptive of her son's education. The boy attended St. Luke's from the second through the seventh grade.

        While in the seventh grade during the 1996-97 school year, the boy "developed an attitude problem" according to his mother, who also indicated to a school social worker that the boy had been in therapy between the ages of six and ten (Exhibit 3). She advised the social worker that the boy's behavioral difficulties in 1997 were manifested in his school work, and that he was in therapy during the spring of 1997. At the end of the 1996-97 school year, petitioners were reportedly asked by St. Luke's to find a new school for their son because it would not have been appropriate for the boy to repeat the seventh grade at St. Luke's during the 1997-98 school year. I note that the child's academic records relating to his education at St. Luke's are not included in the record of this proceeding.

        In June and July, 1997, petitioners had their son psychologically evaluated at the New York University Medical Center Diagnostics Program (Exhibit 2). The boy achieved a verbal IQ score of 107, a performance IQ score of 98, and a full scale IQ score of 103. His standard score for freedom from distraction was 96, while his standard score for processing speed was 80. The evaluators noted that the boy had difficulty correctly recalling and sequencing digits during the IQ testing. On the Gray Oral Reading Test – 3, the boy's reading accuracy was in the low average range (16^th percentile) and his reading rate was slow (9^th percentile), indicating that he had some difficulty with reading decoding. However, his reading comprehension skills when asked to respond to multi-choice questions was within normal limits (63^rd percentile). In a test of silent passage reading skills, the boy's comprehension was found to be at the low end of the average range (27^th percentile, 5.5 grade equivalency). However, given additional time, his score improved to the 42^nd percentile and a grade equivalent score of 7.1. When asked to complete sentences with a single word on the Woodcock Johnson Test of Achievement, the boy's standard score of 113 was a grade equivalent of 11.0.

        The New York University evaluators also assessed the boy's writing skills with the Test of Written Language – 2. They reported that he had achieved standard (and percentile) scores of 12 (75) for thematic maturity, 9 (37) for contextual vocabulary, 14 (91) for syntactic maturity, 14 (91) for contextual spelling, and 16 (98) for contextual style. His spontaneous writing quotient of 120 was in the 91^st percentile. The boy's arithmetic ability was reported to be quite good, although he had some difficulty manipulating fractions and decimals. The evaluators reported that the boy's receptive vocabulary skills were at the 96^th percentile, while his expressive vocabulary skills were at the 63^rd percentile. The boy's language skills were assessed in a number of ways, yet were found to be in the average range. The evaluators reported that the boy's visual memory skills were good, but his immediate auditory recall was in the borderline range. Nevertheless the boy's long-term memory skills were in the average range. The evaluators reported that petitioner's son evidenced an ability to selectively maintain attention on required tasks, while generally exhibiting some signs of distractibility. Personality testing revealed that the boy was struggling with common adolescent issues, while coping with his learning difficulties.

        The evaluators recommended that the boy receive tutoring to develop his reading decoding and comprehension skills, and also recommended that he receive remedial support for the organization and learning of new information, especially when it was presented orally. They opined that the boy's difficulties with auditory processing and the recall of new information, weak language and reading skills, and attention difficulties would make it difficult for him to academically succeed in a regular classroom. They recommended that he be instructed in a classroom setting where instruction was provided in small units and reinforced through repetition and multi-sensory techniques.

        Petitioner enrolled his son in Winston for summer school in 1997. The boy was re-enrolled at that school for instruction during the 1997-98 school year. I note that although he reportedly did not pass the seventh grade at St. Luke's during the 1996-97 school year, the boy was enrolled in the eighth grade at Winston for the 1997-98 school year. By letter dated November 21, 1997, the boy's mother referred him to the CSE of Community School District No. 2. On December 5, 1997, the boy's mother referred him to the CSE of Community School District No. 3, which arranged to have him evaluated.

        A school social worker who interviewed the boy's mother on January 5, 1998, reported that the boy had some adjustment difficulty at the beginning of the school year, but had improved. The boy's mother indicated that her son denied the existence of his disability, and did not like to take his medication for ADD. The boy was evaluated by a CSE school psychologist on January 5, 1998. The school psychologist reviewed the results of the boy's psychological evaluations in 1990 and 1997, and interviewed the boy. She reported that he had feelings of inadequacy about his school performance which was below what was expected of him by his parents. The school psychologist indicated that the boy was self-critical in a subtle way. His performance on the Differential Ability Scales was consistent with the results of the IQ testing done by the New York University evaluators in June and July, 1997. The school psychologist opined that the boy was " … capable of doing the work, but other factors are operational when he feels pressured" (Exhibit 4). She recommended that the boy pursue courses in the arts and business in high school because of his interest in those areas.

        On January 14, 1998, one of the CSE's educational evaluators assessed the boy's academic skills. She reported that petitioner's son worked slowly during the evaluation, which was conducted after the boy had attended classes all day. On the Woodcock-Johnson Tests of Academic Achievement, the boy achieved grade equivalent (and standard) scores of 9.6 (107) for letter-word identification, 9.9 (108) for passage comprehension, 10.6 (113) for reading vocabulary, 10.2 (112) for reading comprehension, 7.1 (95) for mathematical calculation, 11.6 (113) for applied problems, 5.6 (86) for dictation, and 8.5 (101) for skills. The boy completed two of the subtests of the Woodcock Language Proficiency Battery - Revised, but then informed the evaluator that he wanted to go home because his Ritalin (ADD medication) had worn off. I note that the school psychologist who evaluated the boy on January 5, 1998 reported that the boy had indicated to her that his concentration was not affected by Ritalin. In any event, the boy achieved grade equivalent (and standard) scores of 10.6 (106) for listening comprehension and 11.6 (112) for verbal analogies on the two subtests. The educational evaluator reported that an informal writing sample by the boy appeared to be close to his age and grade expectancies (Exhibit 5).

        A school social worker attempted to observe the boy in class at Winston on four occasions in February, 1998, but was unable to observe him because he was ill and not attending school (Exhibit 6). The boy was evaluated by a CSE speech/language evaluator on February 26, 1998. She reported that he had excellent speech articulation, but that he occasionally repeated initial consonants. On the Clinical Evaluation of Language Fundamentals – 3, the boy achieved standard (and percentile) scores of 90 (25) for receptive language and 106 (95) for expressive language. However, the CSE evaluator noted that the boy's performance on this test and the others which she administered to him was variable. She reported that deficits in his receptive language skills were noted in formulating sentences. The evaluator reported that the boy's complex sentences were awkward and difficult to follow, and had grammatical and syntactic errors. On a test of his ability to listen to paragraphs which were read to him, petitioner's son had difficulty answering questions about details and sequence, and making inferences. The evaluator recommended that the boy receive 40 minutes of speech/language therapy in a group of three twice per week, and that his language be stimulated in the classroom and at home (Exhibit 7).

        The CSE of Community School District No. 3 met with the boy's parents on February 27 1998. One of the boy's teachers at Winston participated by telephone in the meeting. The CSE recommended that the boy be classified as speech impaired. The CSE also recommended that the boy be educated in regular education classes, with the related service of speech/language therapy in a group of no more than three twice per week for 40 minutes per session. The CSE recommended the testing modifications of up to double the regular time limits, testing in a special location, and having test directions read and re-read aloud to the boy "as needed". As noted by the hearing officer in her decision, the IEP which the CSE prepared for the boy failed to include any annual goals or short-term instructional objectives. In a written rationale for its recommendation, the CSE indicated that the boy showed "some unevenness in learning", and that the recommended speech/language therapy should make "a significant contribution to helping in overall remediation" (Exhibit 10).

        On April 30, 1998, petitioner requested an impartial hearing to review the CSE's recommendation. By agreement of the parties, the hearing was adjourned until June 17, 1998. Although it is not entirely clear from the transcript of the hearing, petitioner apparently challenged the CSE's recommendations with respect to both classification and services, and he requested the remedy of tuition reimbursement from the date of the CSE's recommendation. At the hearing, the boy's pediatric neurologist testified that the boy had a number of learning problems, including ADD, difficulty with reading decoding and comprehension, and deficits in auditory processing and recall and organizing and planning. She opined that he could not learn appropriately in a regular education classroom, and that he required a small, structured classroom. One of the boy's teachers at Winston testified that he had pervasive language difficulties which affected his processing of language in all content areas. The teacher asserted that petitioner's son would have difficulty processing orally presented information in a regular education classroom, and that he required frequent repetition and review of concepts and terminology. She opined that petitioner's son was receiving an appropriate education at Winston. The CSE's educational evaluator testified that she observed no evidence of any auditory processing difficulty when she evaluated the boy. The school psychologist member of the CSE acknowledged that she may not have been aware that the boy had been classified as learning disabled by the CSE of Community School District No. 2, but she asserted that the boy did not meet the criteria for classification as learning disabled, and that his deficits could be addressed by the speech/language therapy which the CSE had recommended.

        In her decision which was rendered on October 2, 1998, the hearing officer noted that the CSE was required to observe the child in his current educational setting (see 8 NYCRR 200.4 [b][4][viii]), but excused the CSE's failure to do so on the ground that the child was unavailable on the four occasions when the CSE school social worker visited Winston. She found that respondent had not met its burden of proving that it had offered to provide a free appropriate public education to petitioners' son during the 1997-98 school year because his son's IEP did not include annual goals or objectives for the speech/language therapy which the CSE had recommended for the boy. The hearing officer noted that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 US 7 [1993]).

        Having found that petitioner had prevailed on the first criterion for an award of tuition reimbursement, the hearing officer noted that petitioner bore the burden of proof with respect to the appropriateness of the services which he had obtained for the child at Winston during the 1997-98 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board 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 was required to show that the services 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 his son's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The hearing officer found that the boy had some learning difficulties, but he had developed compensatory strategies which enabled him to academically achieve in the average range. Consequently, the hearing officer concluded that the boy's learning difficulties did not interfere with his ability to achieve to such an extent that he could be classified as learning disabled, or that would require that he be placed in a full-time special education class in order to receive educational benefits. Since Winston was reportedly a school for learning disabled and ADD children, the hearing officer found that the school was not the least restrictive environment in which the boy could receive educational benefit. Accordingly, the hearing officer found that petitioner had failed to meet his burden of proof with regard to the appropriateness of the services provided by Winston. She did not address the third criterion for an award of tuition reimbursement, i.e., whether equitable considerations favored petitioners' claim.

        Respondent has not appealed from the hearing officer's determination concerning its CSE's failure to include annual goals and short-term objectives on the boy's IEP. Therefore, I do not review her determination that respondent failed to meet its burden of proof on the appropriateness of services which it offered to provide to the child during the 1997-98 school year.

        It is not clear from his petition whether petitioner is specifically disputing the hearing officer's finding that his son did not meet the regulatory criteria for classification as a learning disabled child. I have considered the issue of the boy's classification, and I must concur with the hearing officer's finding. A learning disabled child is defined in State regulation as:

"A student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability" (8 NYCRR 200.1 [mm][6]).

        The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

        This boy's IQ scores were in the average range, as were his achievement test standard scores. While there is some variation in the boy's performance on the many standardized tests which have been administered to him, that variation appears to be the result of his ADD rather than a learning disability. In any event, there is simply no evidence of a significant discrepancy between his ability and his achievement which would support the classification of petitioner's son as learning disabled.

        Petitioner contends that his son could have not have functioned successfully in a regular education placement because of his prior experience at St. Luke's. However, the record does not include evidence of the boy's performance at St. Luke's, but it does include standardized achievement test results which indicate that he was indeed able to learn in a regular education setting. While I have considered the testimony by the boy's Winston teacher that his standardized test results were not indicative of his classroom performance, I am not persuaded by that testimony in the absence of any other supporting evidence. At the hearing, the teacher from Winston testified that Winston provided special education to learning disabled and ADD children in grades 6 through 12. She further testified that the boy was educated in small classes and that his teachers broke down information and repeated and reviewed material consistently and sequentially. She also testified that petitioner's son used a plan book to organize his assignments, and received extended time for completing tests. Assuming for the sake of argument that Winston did provide special education, i.e., specially designed or individualized or group instruction to the boy, the question remained whether he required primary special education in each of his academic subjects during the 1997-98 school year. Upon the record which is before me, I am unable to conclude that the boy required primary special education in each of his academic subjects, especially in light of the fact that until the 1997-98 school year he had not received special education. Therefore, I must concur with the hearing officer's determination that petitioner did not meet his burden of proof with respect to the appropriateness of the services which he obtained for his child at Winston during the 1997-98 school year because the boy did not require placement in such a restrictive environment in order to obtain educational benefit.

THE APPEAL IS DISMISSED.