The State Education Department
State Review Officer

No. 96-32

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BINGHAMTON for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Coughlin and Gerhart, LLP, attorneys for petitioner, Carl A. Kieper, Esq., of counsel

Hogan and Sarzynski, LLP, attorneys for respondents, Edward J. Sarzynski, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the City School District of the City of Binghamton, appeals from the decision of an impartial hearing officer which found that petitioner did not offer an appropriate educational program to respondents' son for the 1995-96 school year, and which directed petitioner to pay for the cost of the boy's instruction in the private school in which respondents had placed the boy. He also ordered petitioner to reimburse respondents for the cost of counseling services which they might have obtained for the child during the 1994-95 and 1995-96 school years. The hearing officer also directed the Committee on Special Education (CSE) to conduct its annual review of the child, and purported to retain jurisdiction over any disagreement which might arise out of the CSE's recommendation for the child's placement and program during the 1996-97 school year. The appeal must be sustained in part.

        Respondents' child, who is twelve years old, was diagnosed as having neurofibromatosis, accompanied by pseudoarthrosis of the left leg, while still an infant. Neurofibromatosis reportedly involves tumors of the nerves and bones. In addition, he was reportedly diagnosed as having pyloric stenosis, which is a narrowing of a portion of the stomach. The boy was reportedly hospitalized because of his medical condition on a number of occasions before entering school. He received instruction at home for kindergarten. As he was entering the first grade in September, 1989, he was referred to petitioner's CSE. He was evaluated by one of petitioner's school psychologists, who reported that the child had achieved an IQ score of 135 on the Slosson Intelligence Test. While the boy's score on a test of his visual motor integration skills was below average, the school psychologist opined that the boy's score was not a matter of real concern at that time. She noted that the boy had pain and fatigued readily, as a result of his ongoing medical condition, which could affect his ability to learn. In February, 1990, the child's left leg was amputated below the knee. He was thereafter fitted with a prosthesis. In May, 1990, the school psychologist reported that the child's performance on a different IQ test had been in the average range, and that he had achieved standard scores of 92 in reading, 116 in mathematics, and 84 in written language. She reported that the child was very verbal, and that he lacked impulse control. She opined that the child did not exhibit compelling evidence of a learning disability.

        The child was classified as other health impaired by the CSE. He has remained classified as other health impaired, and his classification is not disputed in this proceeding. The record does not reveal what, if any, services the CSE recommended for the child in the 1989-90, 1990-91, and 1991-92 school years.

        In November, 1990, the child was evaluated by a private psychologist, at respondents' request, because they reportedly believed that the boy might have a learning disability and attention deficit disorder (ADD). The psychologist reported that the child had achieved a verbal IQ score of 119, a performance IQ score of 115, and a full scale IQ score of 120. He noted that the child exhibited a relative weakness in his expressive vocabulary skills, but opined that the child did not have an impairment. When tested, the child was in the second grade. His reading skills were found to be at an end of first grade level, while his spelling skills were reported to be at an early second grade level. The child's mathematics skills were reported to be at a middle second grade level. His written expression skills were described as low to below average. The psychologist reported that the child's scores on the Personality Inventory For Children were at the upper end of the average range for activity level and distractibility, but were below the level which would lead to a diagnosis of ADD. Nevertheless, he recommended that the boy's teachers work with the child to increase his attention span. He also suggested that the child might benefit from tutoring in reading and spelling.

        During the 1992-93 school year, the child was enrolled in regular education fourth grade classes. He reportedly received the related service of physical therapy. The CSE recommended that the boy be evaluated by an occupational therapist. An occupational therapist evaluated the boy in January, 1993. She reported that the child functioned within normal limits on visual perceptual tasks, and did not require occupational therapy. A March, 1993 physical therapist's report indicated that the child's balance, coordination, overall muscle tone, strength, and body awareness had all improved. The therapist reported that the child had achieved age appropriate gross motor skills, and opined that he no longer needed direct physical therapy services. She recommended that consultant physical therapy service be provided once every three months to assure the proper fit and use of the child's prosthetic device on his lower left leg. The child's individualized educational program (IEP) for the 1992-93 school year indicated that he was to receive speech improvement services to remediate a minor articulation deficit. Although it was not listed on the child's IEP, it appears from the record that the boy received two hours per week of consultant teacher services during the latter part of the 1992-93 school year.

        In January and February, 1993, the child was evaluated by another private psychologist, at respondents' request. The psychologist reported that the child had achieved a verbal IQ score of 121, a performance IQ score of 100, and a full scale IQ score of 112. She suggested that the discrepancy between the child's verbal and performance scores was a result of the boy's strong verbal abilities, and slow psychomotor speed which had affected his performance scores. She also reported that the child's reading and mathematics skills were at or above the appropriate grade level, but that his spelling skills were below the first grade level. The psychologist indicated that the child's performance on various tests, as well as the reports of his teacher and petitioners, afforded a basis for finding that the child had an attention deficit hyperactivity disorder (ADHD). She noted that the boy's teacher had reported that the child had considerable difficulties with his peers because of his immature social/emotional status. She opined that the preponderance of the boy's social and academic difficulties were due to his ADHD. The psychologist recommended that the boy receive medication to control the effects of his ADHD. I note that the child's subsequent IEP's indicated that he was receiving Ritalin, which is typically used for children with ADD or ADHD. The psychologist also recommended that a consultant teacher be used to provide special education services to the child in his regular education classroom to foster an improvement in his social adjustment. She also recommended that an aide be assigned to work with the child in the classroom, and that counseling be provided to the child and his family.

        In March, 1993, the child achieved grade equivalent scores of 4.3 in broad reading, 5.9 in broad mathematics, and 4.8 in broad written language, on a standardized achievement test. For the 1993-94 school year, the CSE recommended that the child be enrolled in a regular education fifth grade class, and that he receive consultant teacher services for two hours per day. It also recommended that the boy have the services of an aide for one-half of each school day. It didn't recommend that he receive any related service, but indicated that he would continue to receive speech improvement services. The CSE also recommended that the child be given extra time to complete tests, and that he be allowed to take tests in a separate location. On his IEP for the 1993-94 school year, the child was described as having extreme difficulty focusing on task, and requiring constant redirection. One of the annual goals in the IEP was to improve the child's self-esteem.

        In February, 1994, the boy achieved grade equivalent scores of 7.1 in broad reading, 9.2 in broad mathematics, and 5.4 in broad written language. In late February, 1994, the CSE reportedly reviewed the child's educational program, and found that he had achieved each of his IEP annual goals and short-term objectives. It recommended that his IEP be revised to provide that he receive only consultant physical therapy service. On another standardized advancement test which was administered on an untimed basis in April, 1994, the child achieved grade equivalent scores of 10.8 in total reading and 12.9 in total mathematics. The boy reportedly scored above the statewide reference point on the New York State Pupil Evaluation Program fifth grade writing test, which was administered in May, 1994.

        In a letter dated April 25, 1994, Dr. Cate Church, an assistant professor of pediatrics at the State University of New York Health Science Center, advised respondents that their son should have a school based program to help him develop social and organizational skills. She recommended that the CSE amend the boy's IEP to include a social skill building program, and a program for organization. She suggested a "skill streaming" program. Shortly thereafter, respondents asked to meet with the CSE to discuss Dr. Church's recommendations, and other matters. Before the CSE met with them, Ms. Debra Rivera, a guidance counselor in petitioner's West Middle School informed respondents by letter that she discussed the child's needs with his prospective sixth grade teachers, and explained to them how the sixth grade teachers tried to teach organizational skills to their students. She also indicated that the child, who has great difficulty with cursive writing, could print his notes and tests, without penalty for doing so. In her letter dated May 13, 1994, Ms. Rivera also discussed their request that the child be given a laptop computer. She indicated that the sixth grade teachers did not believe that the child would have so much written work to require the use of a laptop. She indicated that she would attempt to address some of respondents' concerns about their son's social needs by discussing his needs with the advisor of the school clubs which he joined, and would assist the boy in making personal or social adjustments.

        Petitioner's CSE conducted its annual review of the child on June 15, 1994. The IEP which the CSE prepared on that day for use during the 1994-95 school year indicated that the child had met each of his IEP annual goals and short-term objectives for the 1993-94 school year. The boy's academic achievement and his level of social development were both described as "average", while his classroom management needs were described as "minimal." The CSE recommended that the child be enrolled in regular education sixth grade classes in petitioner's West Middle School, for the 1994-95 school year. Although it did not recommend that the child receive any special education instruction on a regular basis, the CSE indicated on the child's IEP that he was to have access to a resource room, when needed. It also recommended that a physical therapist monitor the child's use of his prosthesis, on a once per month basis, and that a school nurse monitor the integrity of the boy's skin at the place of the leg amputation, on a daily basis. The boy's IEP included academic annual goals for improving the child's mechanics of writing and computer skills. It indicated that the child was not to be penalized for spelling errors in his written work, and should not be required to write in cursive. The IEP also indicated that the boy should be permitted to use a computer for all independent written work. Notwithstanding its description of the child's social development as average, the IEP indicated that the boy "Tends to be isolate", and included as a goal that he was to be involved in activities to decrease isolation. It also indicated that the child needed monitoring for organizational skills, and included an annual goal that the child would improve his independence and responsibility for self. The child's IEP also provided that a parent/teacher conference would be held within four to six weeks after school began, and every four to six weeks thereafter.

        As a result of his strong performance in mathematics while in the fifth grade, the child was enrolled in petitioner's accelerated sixth grade mathematics program. The child's report card for the 1994-95 school year revealed that his final course averages were 84 in accelerated mathematics, 86 in science, 83 in language arts, 89 in social studies, 87 in developmental reading, 88 in art, 99 in music, 91 in home and careers, and 90 in technology. His final academic average for the 1994-95 school year was 89.30. On the Stanford Achievement Test which was administered on an untimed basis in May, 1995, the child's score for total reading was at the 89th percentile, and his total mathematics score was at the 99th percentile. The child's score on the New York State Pupil Evaluation Program sixth grade mathematics tests was well above the statewide reference point. The record does not reveal the child's score on the corresponding sixth grade reading test.

        Each of the child's teachers prepared a written report of the child's academic and social progress for the CSE's use at the end of the 1994-95 school year. His mathematics teacher reported that the child's performance was good enough to warrant his placement in the seventh grade advanced mathematics program in the 1995-96 school year. The teacher noted that the child had some difficulty getting along with his peers. He alluded to an incident in which the child had allegedly taken off his prosthesis, and threatened to strike other students with the device. However, the teacher opined that the child had begun positive measures of social growth and development. The child's science teacher reported that the child's work was satisfactory, except for some homework assignments which were not completed during the second marking period. She noted that the child had some difficulty working on teams of students. The teacher indicated that the child had rejected the friendship of other students, and had alienated them from him. Nevertheless, she observed that the child had matured during the year. The child's language arts teacher reported that the boy was ready for seventh grade English, but that he needed to take responsibility to hand in homework assignments and make-up work. She also reported that the child had difficulty relating to his peers, and alienated them. In her report, and in her testimony at the hearing, the teacher indicated that the boy needed to learn how to be a friend. The child's developmental reading teacher reported that the child had worked well with others on most occasions, but that he lashed out at those around him when he was frustrated. She indicated that the boy needed to develop more positive social skills. The boy's technology teacher reported that the boy was disorganized, and often late for class. He indicated that the boy had frequent clashes with his peers. The child's home and careers teacher noted that the boy appeared to work better independently, then in groups. His music teacher reported that the boy worked very well with the children in groups.

        A meeting of a building level CSE subcommittee was scheduled to take place on May 11, 1995, for the purpose of reviewing the boy's program. The child's mother reportedly telephoned the school on May 10, 1995, to request that the school physician attend the CSE subcommittee. It should be noted that a school physician need not attend a CSE subcommittee meeting, unless a child's parents request in writing at least seventy-two hours before the meeting that the physician attend the meeting (Section 4402 [1] [c] of the Education Law). The child's guidance counselor testified that she informed the child's mother that the May 11, 1995 meeting would be canceled.

        The CSE subcommittee, which was scheduled to review the programs of a number of children, met on May 11, 1995. A school psychologist who attended the meeting testified that the school principal indicated that the parents of this child wanted the school physician to be present, and that the case was being referred to the full CSE. The school psychologist further testified that the principal, who was the subcommittee chairperson, briefly discussed past concerns about the child, but she insisted that the subcommittee had taken no action other than to refer the matter to the full CSE. Nevertheless, petitioners' Exhibit 7 in the record before me is a copy of a partially completed IEP for the child, which on its face, appears to have been prepared at the meeting on May 11, 1995. However, the IEP does indicate that a recommendation for the child's program had been "Tabled for Main Committee".

        The record reveals that in May, 1995, respondents had the child evaluated at the Susquehanna School, a private school, for admission in the Fall of 1995. On May 30, 1995, the private school notified the parents that it had accepted the boy and his sister. On June 2, 1995, respondents reportedly informed the child's psychologist that they intended to place the child in the Susquehanna School, which is the school he attended during the 1995-96 school year.

        On June 21, 1995, respondents met with the full CSE to conduct an annual review. Respondents were accompanied by the child's private psychologist. The assistant principal of the middle school briefly summarized the reports by the child's teachers. The child's social studies teacher orally reported to the CSE about the child. The child's father read a statement drafted by the child, in which he described the 1994-95 school year as " ... the worst school year of my life," and voiced complaints about some of his teachers. The child asserted that other children had called him "peg leg", put objects in his food, and threw food at him. The boy's private psychologist summarized the child's social and emotional needs. The parents asked that petitioner pay for the child's tuition in the Susquehanna School, a nearby private school, for the seventh and eighth grades. The CSE concluded that it needed to have additional evaluative information about the child, before it could recommend the child's educational program for the 1995-96 school year. It deferred further consideration of a program for the child, until after a school district psychologist, and an independent psychologist, had separately evaluated the child.

        In a letter to the CSE chairperson, which was dated July 5, 1995, the child's parents requested that an impartial hearing be held regarding the CSE meeting on June 21, 1995, and tuition for their son in the Susquehanna School. With regard to the proposed evaluation of the child, the parents asked the CSE chairperson to identify the reason for the evaluation, and to identify the person who would perform the evaluation. Petitioner's attorney indicated the reason why the evaluation was sought, and identified a school psychologist as the person who would evaluate the child, in a letter to the parents' attorney, dated July 24, 1995. In a letter dated August 9, 1995, the parents' attorney indicated to petitioner's attorney that the parents would not agree to have additional evaluations performed.

        The hearing in this proceeding began on September 27, 1995. The issues which the parties identified for the IHO included the appropriateness of the child's IEP for the 1994-95 school year, the alleged failure by the board of education to implement the IEP, the propriety of conducting the CSE subcommittee meeting without the parents on May 11, 1995, the CSE's failure to prepare an IEP for the 1995-96 school year, and the parents' request for tuition in the Susquehanna School. The hearing concluded on December 15, 1995.

        On April 3, 1996, the hearing officer rendered his decision. He found that the board of education had failed to demonstrate the appropriateness of the educational program which it provided to the child during the 1994-95 school year because the child's IEP did not adequately address the child's social and emotional needs. The hearing officer noted that although the child had been successful academically while he was in elementary school, the boy had significant organizational, social and emotional needs. He found that the CSE should have included in the child's IEP for the 1994-95 school year various suggestions which the child's private psychologist, Dr. Valerie Perdue, had made to address the child's organizational and social needs (Exhibit D-11). He further found that the child's IEP annual goals and short-term objectives lacked the requisite specificity. With respect to the parents' assertion that the child's IEP had not been properly implemented, the hearing officer found that all of the staff assigned to work with the boy during the 1994-95 school year had not been adequately apprised of his social and emotional needs. He also found that the IEP provision for parent-teacher conferences had not been carried out, although the parties disagreed why it had not been done. He suggested that the CSE should have been alerted to the problem of holding the conferences, and to problems in the child's program, before the school year ended.

        The hearing officer ruled that the CSE subcommittee violated the applicable regulations by discussing the child's case on May 11, 1995, and referring the matter to the full CSE, in the absence of the parents and all of the required subcommittee members. He upheld the CSE's decision on June 21, 1995 to defer making a recommendation for the child's educational program for the 1995-96 school year because it lacked adequate evaluative information about the child. The hearing officer also found that the CSE had failed to perform a triennial evaluation of the child, and in particular had failed to obtain a physical examination.

        The hearing officer also found that the school district had made numerous procedural errors in the manner in which the child's case was referred by the subcommittee to the CSE, the manner in which the child's IEP had been prepared, and the notices of the CSE's recommendations which had been given to the child's parents and to the board of education. He ordered the school district to work with the State Education Department to ensure that its CSE process complied with the requirements of Federal and State regulations.

        With regard to respondents' claim for tuition reimbursement for the 1995-96 school year, the hearing officer found that the board of education had not provided the child with an appropriate education to met his special needs, while acknowledging that respondents had "abridged the CSE process" by refusing to allow the boy to be further evaluated. He further found that the Susquehanna School was providing appropriate educational services to the child, and that equitable considerations supported respondents' claim for tuition reimbursement. In addition, he found that they should be compensated for any expenses which they had incurred in obtaining private counseling for the child during the 1994-95 and 1995-96 school years.

        The hearing officer also directed petitioner's CSE to conduct its annual review of the child, and recommend an appropriate program for him for the 1996-97 school year. He indicated that he would retain jurisdiction over any "subsequent deliberations."

        Petitioner challenges the hearing officer's finding that it failed to demonstrate that it had provided an appropriate program to the child during the 1994-95 school year. 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).

        Respondents contend that the child's IEP for the 1994-95 school year was invalid as a matter of law because the child's teacher did not participate in the CSE meeting on June 15, 1994, when the IEP was prepared. Federal regulation (34 CFR 300.344 [a][2]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher attend the CSE meeting at which the child's IEP is prepared or amended. An IEP prepared by a CSE which did not include the child's teacher is a nullity (Application of a Child with a Disability, Appeal No. 95-14). This child's IEP indicates that the child's teacher was Ms. Rivera, who was serving as guidance counselor in the West Middle School, while the child attended the Wilson Elementary School during the 1993-94 school year. However, Ms. Rivera testified at the hearing in this proceeding that Ms. Stephanie Coon, the child's fifth grade teacher, had in fact participated in the June 15, 1994 CSE meeting. Her testimony was not refuted. I find that there is no merit to respondents' contention.

        The initial substantive issue with regard to the child's IEP for the 1994-95 school year is whether it accurately and adequately identified his special education needs. The most recent psychological evaluation of the child was performed by Dr. Perdue, in January and February, 1993. As noted above, Dr. Perdue opined that the child had ADHD, which was primarily responsible for his academic and social difficulties. The only academic deficit which she identified was the boy's spelling, which she reported to be below the first grade level. However, I note that the child achieved a grade equivalent score of 4.7 for spelling, when he was tested in the fourth grade in February, 1994, by one of petitioner's employees. The disparity between the child's reported spelling scores in 1993 and 1994 was apparently not explored by the CSE, which nevertheless indicated on his IEP that the child should not be penalized for spelling errors. I note that the child's language arts teacher during the 1994-95 school year testified that she had modified the child's spelling assignments at respondents' request, but that the child did not have difficulty mastering the regular spelling assignments. I find that the CSE did not adequately determine the nature and extent of the child's reported deficit in spelling. I also note that although the IEP included an annual goal related to the mechanics of written expression, the boy's scores for proofing, punctuation, spelling and usage were all at or above grade level in February, 1994.

        The child's IEP indicated that he "Tends to be isolate." At the hearing, Ms. Stalcup, a CSE member who added that description to the child's IEP, testified that it was based upon the discussion which had occurred at the CSE meeting, but could not provide a more specific basis for the description. I note that the child's IEP for the 1993-94 school year did not identify any social need of the child, and that the IEP for the 1994-95 school year also reported that the child had an average level of social development. Dr. Church's letter of April 25, 1994 (Exhibit P-3), a copy of which was sent by the child's mother to the CSE, alluded to poor self-esteem and a lack of reciprocal peer relationships. Given the child's experience during the 1994-95 school year, it is readily apparent that he had significant social needs. I find that the CSE failed to adequately identify the child's social needs (Application of a Child with a Disability, Appeal No. 94-27).

        The child's IEP for the 1994-95 school year indicated that the child "Needs monitoring for organizational skills." Although both parties appear to agree that the child's organizational skills were weak, I find that the IEP description of his need is too imprecise to adequately identify the child's need in this area.

        In determining a child's needs, the CSE must also consider the child's progress towards achieving his or her annual goals on the IEP which is currently in effect. This child's IEP for the 1994-95 school year indicated that he had met his annual goals for 1993-94 in reading, writing/language, mathematics, social/emotional, daily living, speech, OT/PT, as of June, 1994. However, the boy did not have annual goals in most of those areas on his IEP for the 1993-94 school year. The notation on his 1994-95 IEP that he had achieved those goals does not lead credence to petitioner's claim that the boy's needs were carefully considered in planning his 1994-95 IEP.

        IEP annual goals should be statements which describe what a child with a disability can reasonably be expected to accomplish within a 12-month period in the child's special education program (34 CFR Part 300, Appendix C, Question 38). Short-term instructional objectives should be measurable, intermediate steps between the present levels of the child's educational performance and the annual goals that are established for the child (34 CFR Part 300, Appendix C, Question 39). This child's sole academic annual goal for the 1994-95 school year was to "Increase skills in mechanics of written language," while his annual goal for organizational skills was "Improve independence and responsibility for self." With regard to his social and emotional needs, the IEP annual goal was "Other." I find that this child's IEP annual goals were not sufficiently specific to provide the child's teachers with direction about the CSE's expectations (Application of a Child with a Disability Appeal No. 94-8). I further find that the IEP short-term objectives, such as "Involve in activities to decrease isolation," were also lacking in precision for those who were expected to implement the IEP.

        Even if the IEP for the 1994-95 school year had accurately identified the boy's needs and had included reasonably precise annual goals and short-term objectives, it did not include adequate services to afford the child a reasonable opportunity to achieve his annual goals. The boy had already demonstrated his ability to meet academic standards in a regular education environment, which was clearly the least restrictive environment for him. The CSE apparently believed that the boy's special education needs would be addressed by each of his regular education teachers and his guidance counselor. However, the record reveals that not all of his teachers were aware of each of the boy's needs, and that his guidance counselor learned only belatedly of the extent of the boy's social difficulties in the middle school. While no one disputes the good intentions of petitioner's staff, it is apparent that the CSE's failure to recommend that any special education service, such as a consultant teacher or counseling, resulted in a lack of accountability for implementation for the boy's IEP.

        I have considered petitioner's argument that the child's academic success while in the sixth grade during the 1994-95 school year demonstrated that petitioner had in fact provided the child with an appropriate educational program. However, I find that having identified the child as a child with a disability, which implicitly means that the child "...can only receive appropriate educational opportunities from a program of special education" (Section 4401 [1] of the Education Law), petitioner is obliged to show how the child's special education needs were addressed by the services it provided. For all of the foregoing reasons, I find that the hearing officer correctly determined that petitioner had failed to meet its burden of proof with regard to the appropriateness of the program which it offered to the child during the 1994-95 school year.

        Petitioner also challenges the hearing officer's finding that the CSE subcommittee improperly met without respondents or any of the child's teachers on May 11, 1995. The hearing officer found that although petitioner has not intended to violate respondents' right to attend the meeting, the meeting had occurred, " ... discussions took place and motions were made." I am satisfied with the explanation given at the hearing by the subcommittee members that no determination had been made regarding the child's needs, and that the subcommittee merely referred the case to the CSE. Petitioner's practice of having much of a child's IEP prepared before a subcommittee or the full CSE meets undoubtedly contributed to the misconception about what had happened at the subcommittee meeting, as did the fact that a copy of a partially completed IEP from the May 11, 1995 subcommittee meeting was sent to the full CSE. However, the CSE made no decision with regard to the boy's needs or the services which he should have received during the 1995-96 school year. Therefore, I find that there was no basis for the hearing officer's determination that the May 11, 1995 subcommittee meeting was illegal.

        With regard to the 1995-96 school year, the primary issue is whether respondents were entitled to receive tuition reimbursement from petitioner for the cost of the child's placement in the Susquehanna School. The boy was unilaterally placed in the private school by his parents. The Susquehanna School, which provides instruction to approximately 70 children who are between the ages of three and fourteen, reportedly offers an interdisciplinary regular education curriculum to its students. It has not been approved by the State Education Department as a school for children with disabilities, for the purpose of providing State aid to school districts to place children in that facility.

        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, _____ U.S. _____, 114 S. Ct. 361 [1993]).

        Petitioner's CSE has not recommended any educational program for the child during the 1995-96 school year. Instead, it recommended that the child be further evaluated. However, that evaluation has not taken place reportedly because respondents have declined to have the child undergo an additional evaluation. The hearing officer found in his decision that the CSE's failure to prepare the child's IEP for the 1995-96 school, at its June 21, 1995 meeting, was justified in view of the information about the child which it received at that meeting, and the fact that petitioner had not obtained a triennial evaluation of the child. At the meeting, the CSE reportedly learned from Dr. Perdue that the child had expressed suicidal ideation in March, 1995. It was also apprised of the extent of the child's social difficulties, particularly in unstructured settings, such as lunch and recess. In one incident, another student reportedly twisted the boy's prosthesis almost off his leg. In another incident, the child had allegedly removed his prosthesis, and threatened to strike other students with it.

        The statutory and regulatory requirements for a triennial evaluation changed shortly after the 1994-95 school year ended. During the 1994-95 school year, the relevant portion of the Education Law read as follows:

" ... each child in a special program or a special class shall be reexamined by qualified appropriate school personnel at least once every three years" (Section 4402 [1][b][3][d] of the Education Law)

        The relevant State regulation read as follows:

" A committee on special education shall arrange for an appropriate reexamination of each student with a disability at least every three years by a physician, a school psychologist, and, to the extent required by the committee on special education, by other qualified appropriate professionals. The triennial evaluation shall be sufficient to determine the student's individual needs and continuing eligibility for special education." (8 NYCRR 200.4 [e][4])

        Petitioner's school psychologist had not evaluated the child since May, 1990. However, petitioner's director of special education testified that the CSE had accepted Dr. Perdue's evaluation of the child in 1993, in lieu of doing its own re-evaluation. It is well settled that a CSE may rely upon the evaluative data obtained by others, in lieu of conducting all or a portion of its own evaluation (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). While Dr. Perdue's evaluation had been conducted within three years of the June 21, 1995 CSE meeting, I agree with the hearing officer's finding that the new information about the child disclosed to the CSE warranted an additional psychological evaluation. A triennial evaluation must also include a physical examination. The child's school health record indicated that the most recent physical examination was performed in December, 1991. Therefore, the CSE needed to obtain the results of a physical examination, before making a recommendation (Application of a Child with a Disability, Appeal No. 94-15).

        A CSE's failure to recommend an educational program for a child would ordinarily be dispositive of the first of the three Burlington criteria for tuition reimbursement, i.e., whether the board of education had offered to provide appropriate educational services to the child for the 1995-96 school year. In this instance, the CSE could not make a recommendation because it had not performed a complete triennial evaluation, and it acquired new information about the child which suggested that he should be psychologically evaluated. Although respondents should have informed the CSE of the child's reported suicidal ideation in March, 1995, when they learned of it, I note that the teacher reports of the child's obvious social difficulties should also have been provided to the CSE well in advance of its annual review of the child. In addition, I note that the CSE concluded that it did not have current academic testing results for the child, which was clearly petitioner's responsibility to provide. Upon the record which is before me, I find that petitioner has not met its burden of proof with respect to the first Burlington criterion for tuition reimbursement.

        The child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at the Susquehanna School during the 1995-96 school year (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, the parents must 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 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).

        Although the child has apparently had additional surgery on his leg during the 1995-96 school year, his primary special education needs are related to his poor organizational and social skills. The record reveals that the child was enrolled in a class of approximately eighteen children in grades six through eight in the Susquehanna School. The Director of the Susquehanna School testified that some of the children who attend that school have been identified as having disabilities. The students were provided with an individualized, interdisciplinary regular education curriculum. The Director further testified that each child's work product was evaluated in terms of the expectations of the child's teacher, but that the Susquehanna School did not use standardized tests to assess the progress of its students. The child's teacher, Mr. James Hodges, testified that when the child entered his class in September, 1995, he evidenced a lack of organizational skills in performing multiple tasks, and had difficulty completing assignments on a timely basis. The teacher also testified that the child did not respond to social cues, tended to dominate discussions, and made inappropriate remarks to other children. He opined that this child's social needs were greater than those of his classmates. Mr. Hodges also testified that he had consulted Dr. Perdue about the child's social needs.

        Respondents have annexed to their memorandum of law a progress report prepared by Mr. Hodges for the period from November 1995 through February, 1995. Their attorney submitted it to the hearing officer, after the hearing had concluded. Petitioner objected to the inclusion of the report in the record, and the hearing officer declined to consider the report. Respondents ask that I consider the report. Documentary evidence not presented at a hearing may be considered in an appeal from a 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). Since the report in question was not prepared until after the hearing had concluded, I will accept the report.

        Mr. Hodges testified that he had initially dealt with the child's organizational deficits by making sure on a daily basis that the child had his required materials and assignments. In his progress report, Mr. Hodges indicated that with his assistance the child had found a system for keeping track of his homework assignments. He reported that the boy was consistently handing in his daily homework assignments, as well as larger, long-term assignments. Mr. Hodges further reported that the boy negotiated new deadlines for work with him, when necessary. Mr. Hodges also indicated that the child had shown consistent growth in managing his time and personal possessions.

        At the hearing, Mr. Hodges testified that he had worked on a 1:1 basis with the child to help the child gain an understanding of social cues, and the effect which his inappropriate remarks had on his peers. He also testified that he had held a class meeting with the boy's peers, so that they could better understand their classmate's social difficulties. Mr. Hodges testified that the child's social awareness had improved. In his report, he indicated that the boy was making a conscious effort to interact more appropriately with his peers, and that the boy had been accepted into several different circles of classmates with mutual interests. Mr. Hodges also indicated that he continued to carefully monitor the boy's social progress, and to pull him aside occasionally to discuss social situations which the teacher believed had not been handled appropriately. Upon the record before me, I find that respondents have demonstrated that the private school met the child's special education needs.

        The remaining issue is whether equitable considerations support respondents' claim for tuition reimbursement for the 1995-96 school year. One of those considerations is whether the parents have cooperated with the board of education (Application of a Child with a Disability, Appeal No 94-26). At the hearing, respondent's attorney acknowledged that respondents had declined to have the child further evaluated, and asserted that "we saw no need to have any additional assessment" (Transcript, page 1065). I find that respondents' position is untenable. The board of education has an obligation to ensure that all required evaluations are performed. The need for additional evaluations in this case has been clearly established. Respondents have an obligation to cooperate with the board of education in having the child evaluated. Their failure to do so could preclude them from obtaining tuition reimbursement (Andress v. Cleveland Independent School District, 64 F. 3d 176 [5th Cir., 1995]). Nevertheless, I must also consider the fact that, as noted above, petitioner was largely responsible for the fact that its CSE did not have adequate and current evaluative information at its June 21, 1995 meeting (see Application of a Child with a Disability, Appeal No. 93-1). In addition, it is readily apparent from the record that this child had a number of difficulties during the 1994-95 school year which could have been ameliorated or averted, if he had been more closely monitored by petitioner's staff, and referred to the CSE during that year. That fact is also an appropriate consideration (Application of a Child with a Disability, Appeal No. 93-12). On balance, I find that equitable considerations support respondents' claim for tuition reimbursement.

        Petitioner also challenges the hearing officer's determination to retain jurisdiction with regard to any disagreement which may arise with respect to the child's educational program for the 1996-97 school year. I agree with petitioner that the hearing officer exceeded his jurisdiction (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-11).

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

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the portions of the hearing officer's decision which found that the transfer of the child's case from the CSE subcommittee to the CSE in the absence of the parents, on May 11, 1995, was improper, and which retained jurisdiction with regard to the 1996-97 school year are hereby annulled.

 

Dated: Albany, New York __________________________
July 19, 1996 FRANK MUŅOZ