The State Education Department
State Review Officer

No. 95-75

 

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Ellenville Central School District

Appearances:
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent had failed to offer petitioners' child an appropriate educational program during the 1994-95 school year, but which denied petitioners' request for tuition reimbursement for the child's instruction in a private school. Petitioners' request for reimbursement was denied because they failed to demonstrate that the private school's services were appropriate for the child. The hearing officer further found that equitable considerations did not support their claim for reimbursement. The appeal must be dismissed.

        Petitioners' daughter, who is ten years old, was initially classified as speech impaired in 1989, when she was in a preschool program. Respondent's committee on special education (CSE) purported to recommend that the child's classification be changed to emotionally disturbed in 1990. However, the CSE recommended that the child be classified as speech impaired in 1991. In 1993, the CSE recommended that the child's classification be changed to multiply disabled. Petitioners challenged the CSE's recommendation on various grounds. An impartial hearing officer upheld the CSE's recommendation. In Application of a Child with a Disability, Appeal No. 94- 17, I found that the child did not meet the regulatory criteria for classification as a multiply disabled child. On the record which was before me in that proceeding, I also found that the child had cognitive deficits, as well as deficits in her adaptive behavior, and that the deficits in her expressive and receptive language skills were consistent with her cognitive and academic skills. Therefore, I found that the child would be appropriately classified as mentally retarded(see 8 NYCRR 200.1 [mm][7]). The child's classification as mentally retarded is not in dispute in this proceeding.

        Petitioners' child was enrolled in a preschool program of the Community Rehabilitation Center for the 1989-90 school year. She remained in that program as a school-age child during the following school year. Thereafter, the child was in a special education program of the Ulster County Board of Cooperative Educational Services (BOCES). During the 1992-93 school year, the child participated in a regular education pre-first grade class for instruction in special subjects, while receiving academic instruction in a self-contained special education class. When the BOCES program was discontinued in early 1993, the child was placed in respondent's pre-first grade class for the remainder of the 1992-93 school year.

        For the 1993-94 school year, petitioners sought to have the child placed, with supportive services, in a regular education second grade class. However, the CSE recommended that the child be enrolled in a special education class having a 12:1+1 child to adult ratio, and that she be mainstreamed with regular education students for socialization. The CSE did not specify the amount of time for which the child was to be mainstreamed, and failed to approve annual goals and short-term instructional objectives in the child's individualized education program (IEP) for the 1993-94 school year. Petitioner unilaterally placed their child in the Mountain Laurel Waldorf School for the 1993-94 school year.

        The CSE's recommendation, which also included a proposed change in the child's classification from speech impaired to multiply disabled, was the subject of a prior proceeding, as noted above. In that proceeding, I found that the CSE lacked adequate information to recommend an appropriate program for the child during the 1993-94 school year. Notwithstanding the fact that it had performed the required evaluations of the child, the CSE had not obtained adequate information about the child's academic skills and achievements, nor had it resolved certain discrepant information about the child's social skills and management needs.

        In the prior proceeding, petitioners requested that respondent be directed to reimburse them for their expenditures for the child's tuition at the private school in which they had unilaterally placed the child for the 1993-94 school year. Their request was denied on the ground that they had failed to demonstrate that the child had received any special education to address her special education needs in the private school.

        Petitioners' appeal in the prior proceeding was brought at the end of the 1993-94 school year. Since there was no point in having the CSE prepare a new IEP for that school year, respondent was ordered to have the CSE make its recommendation for the child's educational program during the 1994- 95 school year, within 30 days after the date of my decision in Application of a Child with a Disability, Appeal No. 94-17, which was dated July 14, 1994.

        The CSE had reportedly convened in June, 1994 to prepare the child's IEP for the 1994-95 school year. However, the CSE meeting was terminated because one of the required CSE members could not attend the meeting. By letter of July 29, 1994, the CSE chairperson notified petitioners that the CSE would meet on August 10, 1994, to discuss the child's IEP. On August 2, 1994, the child's father telephoned the CSE office to request that the CSE meeting be held on a different date. The CSE chairperson informed petitioners that if the meeting were not held on August 10, it would have to be rescheduled for September, 1994, because the BOCES personnel who had provided speech/language therapy and counseling to the child during the 1993- 94 school year would not be available again until September. The CSE chairperson acquiesced in petitioners' request to have the CSE meeting rescheduled. A CSE meeting was scheduled to be held on September 19, 1994. That CSE meeting was canceled because petitioners were reportedly unavailable to attend the meeting.

        In September, 1994, the child returned, at petitioners' expense, to the private school which she had attended during the 1993-94 school year. Petitioners requested that respondent not provide the related services of speech/language therapy and counseling to the child during the 1994-95 school year, reportedly because the child objected to being removed from class in the private school to receive the related services.

        On October 13, 1994, the CSE met with the child's father. The child's teacher in the private school did not attend the CSE meeting. The CSE chairperson testified at the hearing in this proceeding that an administrator of the private school had advised him that the child's teacher would not attend CSE meetings. The brief minutes of the CSE meeting reveal that the CSE decided to seek additional information about the child's current levels of performance and needs from the child's private school. The child's father reportedly asked the CSE to provide him with a description of its plan to obtain the information, before he would authorize the private school to release information to the CSE. Thereafter, he was informed that the CSE intended to have one of respondent's special education teachers observe the child in class in her private school, after which respondent's special education teacher, the private school teacher, the CSE chairperson and the child's father would discuss what information about the child should be presented to the CSE. The child's father reportedly agreed with the CSE's proposal.

        On December 6, 1994, the child was observed in the Mountain Laurel Waldorf School by one of respondent's special education teachers. The observer reported that petitioners' child was one of four children in the third grade classroom. The child acted in a socially appropriate manner, and participated with her classmates in a series of activities involving mathematics. However, her participation was at a lower level than that of her classmates. The child's third grade teacher reportedly advised the observer that the child could copy some material which was written on a blackboard, but the child could not read what she had written. The child reportedly knew some sight words, but had not mastered the blending of sounds needed to decode words. During reading activities, the child reportedly listened to her classmates as they read aloud. The child's teacher reportedly expressed her concern about the child's inability to read and the absence of speech/language therapy to address her communication deficits.

        The post-observation meeting which was to be held in December, 1994 was postponed at petitioners' request because the child's grandparent was seriously ill. On January 10, 1995, the child's father met with the CSE chairperson, the special education teacher who had observed the child, and the child's teacher in the private school to discuss possible IEP goals and objectives for the child during the 1994-95 school year. The child's private school teacher reportedly discussed the child's current levels of performance, and reiterated her concerns about the child's academic deficits. At the hearing in this proceeding, the special education teacher testified that the possibility of providing the child with consultant teacher services, resource room services, or tutoring was discussed at the January 10, 1995 meeting, but she acknowledged that no IEP goals or objectives were agreed upon.

        The meeting on January 10, 1995 was held 10 days before the hearing in this proceeding began. The record does not reveal when the hearing was requested by petitioners. At the commencement of the hearing on January 20, 1995, the child's father asserted that respondent had not complied with the directive in Application of a Child with a Disability, Appeal No. 94-17 that respondent's CSE make a recommendation for the child's 1994-95 education program within 30 days after the date of the decision. Respondent acknowledged that its CSE had not made a recommendation for the 1994-95 school year, but asserted that petitioners had obstructed the CSE's attempts to prepare the child's IEP. The child's father asked the hearing officer to find that respondent had failed to offer the child a free appropriate public education (see 20 USC 1401 [a][18]) for the 1994-95 school year, and to order respondent to reimburse petitioners for their expenditures for the child's tuition at the Mountain Laurel Waldorf School and her transportation to and from that school. In the alternative, the child's father asked the hearing officer to order respondent to provide compensatory education to the child.

        When the hearing resumed on January 30, 1995, the child's father asked the hearing officer to order that the child be independently evaluated at respondent's expense, and to suspend the hearing pending the receipt of the results of the evaluation. The hearing officer denied both of the father's requests, but the parties agreed that the CSE would re-evaluate the child. It was further agreed that the CSE would postpone a CSE meeting scheduled to take place on February 9, 1995, until the re-evaluation could be completed.

        In a report which was dated February 22, 1995, respondent's school psychologist noted that the child had been enrolled in a third grade class of the Mountain Laurel Waldorf School at the beginning of the 1994-95 school year, but had been re-assigned to a second grade class, for academic and social reasons. The school psychologist reported that the child's attention to task varied during the evaluation, but that the child was easily redirected. On the Stanford Binet Intelligence Scale, the child achieved a test composite score of 54. The standard scores which she achieved on the Stanford Binet subtests ranged from 28 to 36. The child's composite score of 54 was in the mentally retarded range. On academic achievement tests, the child's reading, writing, arithmetic, broad written language, social studies, and broad knowledge skills were found to be at the kindergarten level, while her science and mathematical application skills were found to be at the beginning first grade level. The school psychologist reported that the child could recognize all letters, but had not mastered the sounds associated with each letter and did not attempt to phonetically decode words. She was able to write some letters, but confused upper and lower case letters. The child exhibited a delay of approximately four and one-half years in the development of her visual motor integration skills. On the Vineland Adaptive Behavior Scales, the child achieved standard scores ranging from 70 in communication (the retarded range) to 98 in socialization (the average range). The school psychologist recommended that the child's instruction be provided in a multi-modal manner, and that it focus upon helping the child to attain first grade level reading and mathematics skills. She opined that a high degree of individual support would be appropriate for the child.

        The child was also evaluated by respondent's reading specialist, who reported that the child had mastered many of the readiness skills for beginning to read, and recommended that the child receive systematic instruction in basic reading skills and acquire a basic sight word vocabulary. She further recommended that the child's listening skills be improved, and that the child use books on tape. The reading specialist recommended that the child be encouraged to write, using "inventive spelling".

        The CSE met for approximately 90 minutes on February 22, 1995, but it did not complete its work on preparing the child's IEP. On March 20, 1995, the CSE recommended that the child be classified as mentally retarded, and that she be placed in a 12:1 + 1 special education class for instruction in all subjects except social studies, science, art, music, and physical education. She was to be mainstreamed in a regular education third grade class for those subjects, and for lunch and recess. The CSE also recommended that the child receive speech/language therapy in a small group, once per week, and as a "push-in" service, i.e., in her classroom, twice per week. The child's IEP which the CSE prepared included annual goals to improve her reading, writing and mathematics skills, as well as her expressive and receptive language and auditory processing skills. Respondent approved the CSE's recommendation on April 11, 1995. However, the child remained in the Mountain Laurel Waldorf School, at petitioners' expense, for the remainder of the 1994-95 school year.

        The hearing in this proceeding continued until June 8, 1995. At the hearing, the child's father sought reimbursement in the amount of $4,500 for his daughter's tuition at the Mountain Laurel Waldorf School, $5,270 for transportation, $4,320 for his time in transporting the child, and $4,500 for his son's tuition at the Mountain Laurel Waldorf School, which he claimed as a necessary "child care expense". Although the IEP which the CSE prepared on March 20, 1995 indicated that it would be implemented during the period between March, 1995 to March, 1996, the CSE chairperson testified that the CSE intended to conduct an annual review later in the year to prepare the child's IEP for the 1995-96 school year. The parties agreed that the March 20 IEP would be considered by the hearing officer solely for the purpose of determining whether respondent had offered the child an appropriate educational program for the 1994-95 school year.

        In his decision, which was rendered on August 22, 1995, the hearing officer found that respondent's CSE had not complied with my directive in Application of a Child with a Disability, Appeal No. 94-17 to recommend the child's educational program for the 1994-95 school year within 30 days after my decision. He noted that the child's father had not indicated any specific reason for his reported inability to attend the CSE meeting scheduled to be held on August 10, 1994, which was within 30 days after the date of my decision, and found that the CSE had acted appropriately in acceding to petitioners' request for an adjournment of the August 10 meeting.

        With regard to petitioners' request for tuition and transportation reimbursement during the 1994-95 school year, the hearing officer held that their claim was governed by the United States Supreme Court decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The Supreme Court held 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. The hearing officer found that respondent had not offered the child an appropriate educational program during the 1994-95 school year because of the extensive delay in the preparation of the child's IEP. However, the hearing officer found that petitioners had not demonstrated that the services which they obtained for the child at the Mountain Laurel Waldorf School were appropriate to meet her special education needs. In addition, the hearing officer held that equitable considerations did not support petitioners' claim for tuition reimbursement because he found that the child's father had effectively precluded the creation of a timely IEP for the child. The hearing officer also found that petitioners were not entitled to be reimbursed for their expenditures for the child's transportation during the 1994-95 school year.

        Respondent argues that the appeal should be dismissed upon procedural grounds because the petition does not contain a clear and concise statement of petitioners' claim (cf. 8 NYCRR 275.10, 279.1), and the petition was not verified (cf. 8 NYCRR 275.5, 279.1). Although petitioners should have served a verified copy of their petition upon respondent, they did file a verified copy of the petition with the State Education Department. Under the circumstances, I will not dismiss their petition (Application of a Child with a Disability, Appeal No. 95-41). I have reviewed the petition, and I find that it sufficiently states petitioners' claim to enable respondent to prepare its answer to the petition.

        Respondent further argues that the appeal should be dismissed as untimely. State regulation requires that the parents of a child with a disability serve their petition to review a hearing officer's decision within 40 days after they have received the hearing officer's decision (8 NYCRR 279.2[b]). The hearing officer's decision was dated August 22, 1995. The petition was served upon respondent on November 3, 1995. The record does not reveal when petitioners received the decision. However, petitioners acknowledge that their petition was not served within the requisite 40 day period. They ask that their failure to meet the 40 day deadline be excused on the ground that they are not represented by an attorney and that they have been engaged in another proceeding involving this child's IEP for the 1995-96 school year. Although I am not persuaded that petitioners' failure to comply with the regulatory deadline may be excused because of their assertion that they were not represented by an attorney (Application of a Child with a Disability, Appeal No. 95-20), there are grounds for granting petitioners' request. The record reveals that respondent was made aware of petitioners' intention to seek review of the hearing officer's decision within 30 days after the hearing officer rendered his decision. By letter dated September 19, 1995, respondent's attorney sent a copy of the hearing officer's decision to the Office of State Review, and indicated that the record of the hearing would be forwarded by the hearing officer. Petitioners' delay in perfecting their appeal by serving and filing their petition shall be considered in determining whether equitable considerations support their claim for tuition reimbursement, but it should not preclude a determination of whether there is any legal basis for their claim (Application of a Child with a Disability, Appeal No. 95-20). Respondent has not demonstrated that it was prejudiced by petitioners' delay. Therefore, I will excuse petitioners' delay.

        There is one other procedural matter to be addressed. Petitioners assert that I should consider certain additional evidence in this appeal. They have annexed to their petition a portion of the transcript from the prior proceeding, a copy of my decision in the prior proceeding and a copy of Exhibit G in this proceeding. Respondent opposes the inclusion of the transcript portion on the ground that it is irrelevant to the issues in this appeal, and asserts that the other two documents are unnecessary because they are already part of the record. I will accept the brief portion of the hearing transcript, which is at least tangentially related to the issues in this appeal. The decision in Application of a Child with a Disability, Appeal No. 94-17 is already part of the record in the present appeal. Exhibit G is a copy of a form which the child's father signed to authorize the private school to release information about the child to respondents' CSE. It was marked for identification at the hearing. However, there is no indication in the hearing transcript that Exhibit G was admitted into evidence. Since there does not appear to be any objection to its authenticity, I will accept the document.

        Petitioners argue that the hearing officer's decision should be annulled because the hearing officer exhibited bias against them. They contend that he should have recused himself in February, 1995, when the child's father asked him to do so following some correspondence between the father, respondent's attorney, and the hearing officer about the alleged failure of petitioners to have the child examined by respondent's school physician. On January 30, 1995, the hearing officer denied petitioners' request for an independent evaluation of the child, at respondent's expense. However, the parties agreed that the CSE would re-evaluate the child, and that the CSE would meet promptly thereafter to prepare the child's long-delayed IEP for the 1994-95 school year. It was agreed that the CSE would meet on either February 22, or 24, 1995. By letter to the hearing officer, dated February 17, 1995, respondent's attorney asserted that the child's father had not scheduled the child for a physical examination, "...despite several notices... regarding his obligation [to do so]..." In a letter to respondent's attorney and the child's father, dated February 20, 1995, the hearing officer stated that:

"I am deeply disappointed to learn of this obstruction which Parent [name] has placed in the way of an immediate creation and implementation of an Individualized Education Program for [the child]. From the evidence presented to me so far in this proceeding, it appears that [the child] does, in fact, have a disability which, especially in light of her tender years, should be addressed with all immediacy. The obstruction of the process by the Parent, in clear and evident detriment to the child, is a matter of great concern."

        In a letter dated February 18, 1995, but not received by the hearing officer until February 20, 1995, the child's father asserted that he had received but one notice from respondent, and that he had arranged for his daughter to be examined by the school physician. At the hearing, the child's father testified that he received a second notice from respondent, after he had sent his letter to the hearing officer, and that he had changed the child's appointment for the physical examination. The hearing officer responded to the father's letter on February 20, 1995, by indicating that he was " ... pleased to learn that my concerns regarding an obstruction to the process ... was (sic) unfounded." In a letter to the hearing officer, dated February 21, 1995, the child's father asked the hearing officer to recuse himself because of the hearing officer's alleged characterization of the child's father as an obstructionist. The hearing officer denied the request that he recuse himself in a letter to the child's father, dated February 24, 1995.

        A hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record (Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for concluding that the hearing officer was biased. The hearing officer was clearly concerned by the long delay in preparing the child's IEP, for which both parties must share at least some responsibility. Nevertheless, I find that the hearing officer's choice of words in his first letter of February 20, 1995 was unfortunate. However, the hearing officer acknowledged his mistake in his second letter of February 20, 1995.

        I have also considered two portions of the hearing officer's decision which refer to the child's father. With regard to the inability of the child's father to attend the proposed CSE meeting on August 10, 1994, the hearing officer wrote that the father:

" ... who appears to be unfettered by usual constraints of employment, was unable to provide any specific reason for his request for the adjournment of the August 10, 1994 meeting or what specifically impeded his attendance, other than noting to the CSE chairperson, in correspondence dated August 9, 1990 (Exhibit C), that, ' ... the tenth would not be a good day for me'... "

        Petitioners suggest that the hearing officer's statement about the child's father being unconstrained by the demands of employment demonstrates a bias against them. While I find that the hearing officer's choice of words was unfortunate, I have construed them in the context of his decision. At the hearing, the child's father was questioned by the hearing officer about his inability to attend the CSE meeting. The parent revealed that he was self- employed, and was engaged in renovating a house for possible sale or rental. When pressed by the hearing officer for a specific reason why he could not attend the CSE meeting, the father testified that he could not remember a specific reason, but that he may have been unable to attend because of his child care duties.

        In his decision, the hearing officer also construed one response by the child's father to a question by the hearing officer as "deliberately misleading". In essence, the hearing officer believed that the child's father should have disclosed the fact that he was legally obligated to pay the child's private school tuition for the entire 1994-95 school year, when the hearing officer asked him about his intention to place the child in an educational program after an IEP had been prepared by the CSE. I do not agree with the hearing officer's characterization. While the child's father could have volunteered the information about his contract with the private school, I find that his failure to do that was not a deliberate misrepresentation.

        I have carefully reviewed the rest of the record and the hearing officer's decision, and I find that there is no basis in fact for concluding that the hearing officer's determination was influenced by any bias on the part of the hearing officer. Although petitioners disagree with the conclusions which the hearing officer reached, there is no indication in the record before me that the hearing officer failed to carefully consider the evidence which was adduced at the hearing.

        As noted above, 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. 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, U.S. , 114 S. Ct. 361 [1993]). 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]).

        In this instance, respondent's CSE did not prepare the child's IEP for the 1994-95 school year until March, 1995. Notwithstanding its understandable desire to have petitioners and the child's private school teacher participate in the development of the child's IEP for the 1994-95 school year, the CSE was responsible for preparing the child's IEP in a timely manner for implementation as of the beginning of the school year. The hearing officer found, and I agree, that the CSE failed to offer the child an appropriate educational program during the 1994-95 school year. Petitioners have prevailed with respect to the first of the three Burlington criteria for reimbursement.

        Petitioners bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at the Mount Laurel Waldorf School (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94- 34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet their burden, petitioners must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (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).

        The child was enrolled in a third grade class in the Mountain Laurel Waldorf School from September through December, 1994. The child's third grade teacher testified that petitioners' child was unable to read, and that she had a sight vocabulary of approximately two words. The teacher testified that reading was taught to children in the private school by having them write stories in personal books, and thereafter read what they had written. She further testified that she had read the words in sentences to petitioners' child, and had tried to have the child repeat the words. However, the child was unable to recognize the words which the teacher had read to her. For at least part of the time that the child was in the third grade, she was instructed in math with the private school's second grade children. The third grade teacher testified that although the child had participated in various "hands-on" activities to learn mathematical concepts with the third grade children, she was not able to grasp the concepts, e.g., how many pecks in a bushel. The teacher further testified that the child had difficulty reciting poetry with her third grade classmates. The teacher explained that the child had been transferred from the third grade to the second grade because the level of her skills was closer to that of the second grade children, and because the other third grade children had began talking about the level of this child's skills.

        The third grade teacher testified that she could not identify any academic benefit which the child had obtained from being in the third grade class. She opined that the child's needs were much greater than could be addressed, with a typically modified Waldorf curriculum. The third grade teacher also testified that the child had not received any special education services to address her deficits in reading, mathematics, and communications, during the 1994-95 school year. The child's second grade teacher did not testify at the hearing about the child's instructional program for the remainder of the 1994-95 school year. The record does not include any written information from the private school about its program, or the child's academic performance during the 1994-95 school year.

        A professor of psychology at the State University of New York at New Paltz testified as an expert witness for petitioners. Their expert witness evaluated the child by reviewing her educational and evaluation records, and by observing her for approximately 90 minutes in the private school on February 17, 1995. He also spoke with the child's private school teachers. The expert witness opined that the child should be in a small class of not more than eight non-disabled children, and that she should be provided with instruction concerning practical and applied skills. Upon cross-examination, the expert witness testified that he was only concerned with what would be the best educational setting to learn a variety of skills. He was unable to explain whether, or how, the private school addressed the child's acknowledged academic and communication deficits. The expert witness also opined that the child appeared to have made progress while enrolled in the private school. His opinion was premised upon a comparison of the child's achievement test and adaptive behavior test scores in May 1993 with the scores she achieved when tested again in February, 1995. Having reviewed Exhibits E and 17, in which the test results were reported, I find that the record does not support the witness' opinion with respect to the child's academic achievement. The child's adaptive behavior standard scores increased in the 1995 evaluation. Nevertheless, I am unable to conclude that the private school addressed the child's identified special education needs during the 1994-95 school year. Therefore, I must concur with the hearing officer's determination that petitioners failed to meet their burden of proof with respect to the appropriateness of the private school's services.

        Although the hearing officer also found that equitable considerations did not support petitioners' claim for tuition reimbursement, I decline to reach that issue, which is unnecessary, in view of my finding that petitioners have not prevailed with regard to the second Burlington criterion.

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
December  21, 1995 FRANK MUOZ