The State Education Department
State Review Officer

No. 97-60

 

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

Appearances:
Guercio and Guercio, Esqs., attorneys for petitioner, Vanessa M. Sheehan, Esq., of counsel

DECISION

        Petitioner, the Board of Education of the Three Village Central School District, appeals from an impartial hearing officer's decision annulling a recommendation by petitioner's committee on special education (CSE) to change the classification of respondents' son from learning disabled to emotionally disturbed, as well as its recommendation that the boy be placed in a private, residential school. Petitioner further appeals from the hearing officer's determination that the CSE's evaluations of the child were inadequate. Petitioner contends that the hearing officer made several errors of law in her decision, and that she exceeded her jurisdiction. The appeal must be sustained in part.

        At the outset, I note that this proceeding was instituted in September, 1996 by the child's mother, who requested that an impartial hearing be held. On January 27, 1997, the hearing officer appointed the child's father, who is separated from his wife, to be the child's guardian ad litem. Nevertheless, the child's mother participated in the hearing. For the purpose of this decision, the child's parents will be referred to as the respondents and both will receive copies of this decision. Although both respondents were individually served with copies of the petition in this appeal, neither respondent has filed an answer to the petition. In accordance with the provisions of 8 NYCRR 279.3, the factual statements in the petition will be deemed to be true.

        I will address one other procedural matter. I note from the record that respondents' son, who is not subject to the compulsory attendance law because of his age, has refused to be further evaluated, and has been unavailable when petitioner attempted to provide him with home instruction. Since the hearing officer did not order petitioner to further test the boy, or to provide any educational service to him, the initial question is whether this matter is moot. The State Review Officer is not required to determine issues which are no longer in controversy, or make a determination which will have no actual impact upon the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child Suspected of Having a Disability, Appeal No. 95-52). In view of the fact that respondents' son still resides within petitioner's district and would be entitled to receive special education services until the end of the school year in which he becomes 21, I find that the matter is not moot.

        Respondents' son, who is 19 years old, was diagnosed as having Acute Lymphocytic Leukemia in 1981, when he was two years old. He was successfully treated for the disease with chemotherapy for three years. The boy attended a private preschool and kindergarten. He entered respondent's schools for the first grade. Respondents referred their son to the CSE in the fall of 1986, when he was repeating the first grade. In a social history, the child was reported to hate school and have temper tantrums. When evaluated by a psychologist for the CSE, the child achieved a verbal IQ score of 106, a performance IQ score of 109, and a full scale IQ score of 108. The psychologist reported that the child had displayed aggressive, angry and impulsive behavior throughout the evaluation, but had responded well to 1:1 attention. An educational evaluator reported that the child had achieved grade equivalent scores of 1.2 for total reading and 2.6 for total mathematics, and that there was a significant discrepancy between his actual and expected achievement in reading.

        In November, 1986, the CSE recommended that the child be classified as emotionally handicapped/learning disabled, and that he receive resource room services for one period per day. Respondents accepted the CSE's recommendation. Although the child's behavior reportedly improved during the remainder of the 1986-87 school year, he continued to struggle in reading and mathematics. His teachers recommended that he be placed in a self-contained special education class for the 1987-88 school year. The CSE accepted the teachers' recommendation, and the child was placed in a self-contained class with a 12:1+1 child to adult ratio in respondent's Alternate Learning Center for the second grade. He reportedly did well in the self-contained class during the 1987-88 school year, and he remained in the class, with once per week counseling, for the third grade during the 1988-89 school year. The child was successfully mainstreamed for art and physical education during that school year. In April, 1989, he achieved grade equivalent scores of 2.2 for basic reading, and 3.3 for both math computation and math concepts. The CSE recommended that the child continue his placement in a self-contained class, and that he receive counseling once per week, during the 1989-90 school year.

        In September, 1989, the child was re-evaluated by a school psychologist, who reported that the child had attained a verbal IQ score of 96, a performance IQ score of 102, and a full scale IQ score of 99. He manifested an approximately three-year delay in his visual motor integration skills, as well as weakness in his organization and short-term visual memory. The child was also independently evaluated by a private psychologist in September, 1989. On the Kaufman Test of Educational Achievement, respondents' son earned grade equivalent scores of 1.7 for word identification, 1.5 for word attack, 1.8 for reading comprehension, 1.9 for spelling, 2.9 for mathematical computation, and 3.7 for mathematical applications. The psychologist reported that the child manifested difficulty with phonological processing and memory skills. He opined that the boy was learning disabled and had an attention deficit disorder (ADD).

        The CSE recommended that the child be mainstreamed for art, as well as music and physical education, in November, 1989. In January, 1990, the child's classification was changed from emotionally handicapped/learning disabled to learning disabled. However, the child remained in his special education class in the Alternate Learning Center. When tested in March, 1990, the child achieved grade equivalent scores of 6.3 for reading vocabulary, 6.6 for reading comprehension, 5.8 for mathematical computation, and 8.8 for mathematical applications. Despite this improvement in his academic skills, the child's word analysis skills were reported to be at the 2.9 grade level.

        For the 1990-91 school year, the CSE recommended that the child continue in his 12:1+1 special education class and be mainstreamed for sixth grade art, music and physical education. The child's IEP for the 1991-92 school year provided that he would be placed in a self-contained 12:1+1 class in respondent's Murphy Junior High School, where he was to receive two periods per week of reading lab. This IEP also indicated that on standardized tests, the child had achieved grade equivalent scores of 3.4 for basic reading, 7.0 for reading comprehension, 5.4 for mathematical computation, and 7.7 for mathematical concepts. I note that the child was in the seventh grade during the 1991-92 school year. In February, 1992, the CSE recommended that the child be mainstreamed for history and life science. In April, 1992, the child's special education teacher reported to the CSE that the child had received satisfactory grades in his newly mainstreamed courses, but had difficulty exhibiting appropriate behavior in art and music. He further reported that the child's social behavior had deteriorated during the third quarter of the school year.

        The child was evaluated in April, 1992 by a school psychologist, who reported that he had achieved a verbal IQ score of 94, a performance IQ score of 96, and a full scale IQ score of 95. She also reported that the child's arithmetic skills and awareness in social situations were areas of weakness, and his graphomotor skills were poor. The child study team at the Murphy Junior High School reported that the child had achieved grade equivalent scores of 2.5 for basic reading skills and 3.2 for comprehension on the Woodcock Reading Test, and 5.6 for concepts, 5.6 for operations, and 8.3 for applications on the Key Math-A Test. The child's phonics, word attack and word identification skills were described as poor. On the Test of Written Language, he achieved a score of 87, reflecting his deficits in grammar, punctuation and usage, as well as his difficulty using appropriate vocabulary. The child study team recommended that the child continue in the self-contained program for eighth grade during the 1992-93 school year.

        The CSE concurred with the child study team's recommendation. The child's IEP for the 1992-93 school year indicated that he would be mainstreamed for eighth grade history, science, art, home and careers and technology, and would receive specialized reading instruction in a reading lab two and one half times per week. It also indicated that a vocational education assessment would be completed within the school year (see 8 NYCRR 200.4 [b][4][vii]). The CSE also agreed to pay for independent psychological and psycho-educational evaluations. An independent evaluator who evaluated the child in October, 1992 reported that the child had achieved a verbal IQ score of 101, a performance IQ score of 112, and a full scale IQ score of 106. The evaluator reviewed the results of the child's five IQ tests since 1986, and reported that those results were generally consistent. He noted that the child had manifested major weaknesses relating to memory, visual spatial integration, and attention, and that the child seemed to lack a sense of self-regulation and an ability to internalize. He opined that the child's learning deficits and blocks to learning were more related to "significant functional structures" then to organicity. Projective testing had revealed the child's feelings of emptiness, uncertainty, boredom, and mood swings, as well as inferiority. The child was described as having difficulty in tolerating his own feelings of hatred and envy, as well as his high levels of anxiety. The evaluator opined that changing the child's learning environment within his current school setting would not be adequate to overcome his "intense internal world", and recommended that the child be placed in a setting where he could grow cognitively and emotionally.

        In January, 1993, the CSE reconvened because the child had been suspended from school on a number of occasions (Exhibit P-47D). Respondents requested that their son be placed in a residential educational program. The independent evaluator, who attended the meeting, informed the CSE that placing the child in a program for children with learning disabilities would not help him because he required psychotherapy. The CSE recommended that the child remain in the 12:1+1 special education class in the Murphy Junior High School, and increased the amount of his reading lab services to five sessions per week.

        In February, 1993, the CSE acceded to respondents' request to provide eight sessions of resource room services per week to their son in lieu of having him remain in the 12:1+1 class. Two months later, the CSE revised the child's IEP by adding individual counseling once per week. In April, 1993, the child attained grade equivalent scores of 3.7 for basic reading skills, 7.0 for reading comprehension, 5.1 for mathematical computation, and 8.6 for mathematical concepts.

        The child's IEP for the 1993-94 school year was prepared by the CSE in June, 1993. The CSE recommended that he continue to be mainstreamed for all subjects, while receiving eight periods of resource room services, five periods of reading lab, and one period of counseling per week. On the IEP, the CSE noted that the child had recently begun to take Ritalin. The IEP was amended in October, 1993 to allow him to use a calculator during testing. Although the child reportedly enjoyed some academic success during the early part of the 1993-94 school year, he was involved in a number of disciplinary incidents during the first semester of that school year. On January 10, 1994, the CSE agreed that the child's placement was no longer appropriate and recommended that he receive home instruction, pending a determination as to an alternative placement. The CSE also recommended that the child, who was still classified as learning disabled, receive a psychiatric evaluation. The child's placement was reviewed again in March, 1994. Although possible placements in a neighboring school district, at BOCES and in petitioner’s other junior high school were discussed, the CSE and respondents could not reach a consensus. The CSE deferred action pending receipt of reports from a psychologist and a psychiatrist, and recommended that the child continue to receive home instruction. I note that at the hearing, petitioner's Director of Pupil Personnel Services testified that the child was evaluated by a psychiatrist, but petitioner had never received his report because respondents declined to release the report.

        When the CSE reconvened on April 13, 1994, it was informed that the child had not been receiving home instruction because the child's mother had reportedly disapproved of the instructors sent to her house. The CSE recommended that the child be placed in a 12:1+1 special class in petitioner’s Gelinas Junior High School, but be mainstreamed for lunch and physical education. It also recommended that he receive individual counseling once per week. The child apparently attended school again at the recommended placement, but his behavior in school was described by the CSE chairperson as "horrible." On June 10, 1994, the CSE recommended that the child be placed in a 12:1+1 class at the BOCES Islip Career Center, with counseling and a vocational assessment to be provided in that placement.

        On May 27, 1994, respondents requested that an impartial hearing be held because they believed that petitioner had not provided an appropriate education to their son. On September 10, 1994, which was the second day of the hearing, the parties entered into a stipulation which provided that the child would receive home instruction until they could agree upon a suitable placement for him. They also agreed to cooperate in exploring placement options within the BOCES and surrounding school districts. The parties further agreed on October 3, 1994 that the child would continue to be classified as learning disabled. He was to receive a vocational assessment at the Islip Learning Center. The parties also agreed that the board of education would provide three hours per week of instruction in reading at the child's home. They agreed upon the terms of the child's IEP for the 1994-95 school year. The hearing was concluded, but the hearing officer retained jurisdiction.

        The hearing was reopened, at respondents' request, on December 12, 1994, because their son was allegedly dissatisfied with his placement at the Islip Learning Center, which is a BOCES facility. He had reportedly attended school there for a brief period of time, and the BOCES staff were unable to perform a vocational evaluation. Respondents placed the child in the Montford Academy in Port Jefferson, New York for a brief period of time. They then placed him in a behavioral management program at the South Oaks Hospital because of an alleged substance abuse problem. Respondents indicated to the hearing officer that they intended to place their son in a day treatment program at Day Top Village. The board of education agreed to provide educational services and transportation to the child while he was enrolled in the day treatment program.

        Respondents' son reportedly participated in Day Top Village's day treatment program for approximately two weeks. He was screened for re-entry into the BOCES program at the Islip Learning Center in February, 1995, and was re-admitted to that program on March 6, 1995. Although attempts were made to complete the child's vocational assessment during the spring of 1995, the child reportedly failed to keep his appointments for the evaluation.

        On June 16, 1995, the CSE prepared the child's IEP for the 1995-96 school year. The IEP provided that the child would remain classified as learning disabled and would continue to attend the BOCES program at Islip, where he would be instructed in a 12:1+1 special education class. The CSE recommended that the child receive individual counseling for 30 minutes per week. The CSE made arrangements to meet on July 10, 1995 to discuss the results of the child's anticipated vocational assessment, which was in fact not performed. In August, 1995, the child's mother reportedly advised petitioner that she was not proceeding with her son's vocational assessment because the child was under the auspices of the County Probation Department.

        On September 22, 1995, the CSE met with respondents to consider their request that their son's classification be changed from learning disabled to emotionally disturbed, and that he be placed in a BOCES "Woods Road" program. The CSE reportedly declined to recommend that the child's classification be changed because it lacked documentary evidence for doing so. It did recommend that the child be placed in an "Outreach" program which reportedly provided treatment to children with substance abuse difficulties and which included a BOCES special education component, but which did not require that the child be classified as emotionally disturbed. However, the child reportedly never attended the Outreach program because it had a waiting list for admission. Instead, the child returned to the BOCES special education program in Central Islip, where he remained for a short period of time before respondents unilaterally placed him in the Montford Hope House. His tenure in that facility was also brief, and he returned to the BOCES program.

        On November 2, 1995, the boy was evaluated by a BOCES school psychologist who indicated that he had been disruptive in class and that his academic performance depended upon his willingness to cooperate. The boy achieved a verbal score of 105, a performance score IQ score of 113, and a full scale IQ score of 108. The school psychologist described the boy as being mildly cooperative, but angry about being tested. He reported that respondents' son was unable to concentrate for periods of time, and needed to have some test questions repeated to him. The boy's age-equivalent score of 8.6 - 8.11 on the Bender Visual Motor Gestalt Test was approximately one-half of his actual age. The school psychologist, who did not have any data about the child's present levels of academic achievement, indicated that greater consideration should be given to the boy's emotional stability and desire to be academically functional in school than to the specifics of his learning disability. He opined that the child required therapy, and an extensive program which addressed his alleged substance abuse problem.

        Although the November 2, 1995 psychological evaluation did not include an assessment of the boy's academic skills, which is one of the issues in this appeal, I note that in the IEP which the CSE prepared on May 17, 1996, the results of an educational evaluation which was performed on January 5, 1996 were reported. On the Stanford Reading Achievement Test, respondents' son received grade equivalent composite scores of 3.6 for reading and 3.3 for mathematics. His phonetical analysis skills were reported to be at a 1.6 grade equivalent, while his comprehension skills were at a 7.3 grade equivalent. His mathematical skills ranged from 1.9 for applications to 4.7 for numeration.

        By letter dated February 8, 1996, the psychiatrist who had been treating respondents' son diagnosed him as having the condition of major depression, recurrent, moderate, as well as a conduct disorder, and alcohol abuse, each of which were in addition to a learning disorder not otherwise specified (dyslexia). The psychiatrist opined that the child needed a residential educational placement in order to benefit him both educationally and emotionally.

        On March 1, 1996, respondents and their attorney met with the CSE to discuss the child's classification. Respondents and their attorney, citing the psychiatrist's letter, urged that the child's classification be changed from learning disabled to emotionally disturbed. At the hearing in this proceeding, the CSE chairperson acknowledged that the child's teacher at the BOCES Islip Learning Center did not attend the March 1, 1996 CSE meeting (Transcript, page 424). The CSE chairperson testified that a Mr. Becker, who was the principal of the BOCES program, was "available by telephone" for the meeting. An audio tape recording of the March 1, 1996 CSE meeting reveals that the CSE chairperson was aware of the fact that the CSE should not take action without one of its mandated members, the child's teacher (34 CFR 300.34 [a][2]; New York State Education Law Section 4402 [1][b][1]). However, respondents and their attorney, who alluded to a pending Family Court proceeding involving the child, asked the CSE to change the child's classification (Exhibit PN-9G). Although the tape recording ended before the meeting concluded, I find that the CSE agreed to change the child's classification (Exhibit P83; 3 Transcript, page 1089).

        The CSE reconvened on March 15, 1996. Mr. Robert Becker, the BOCES principal attended the meeting, but none of the child's teachers at BOCES were at the meeting. The CSE reviewed a written report from BOCES staff, who indicated that the child did what he pleased and was disruptive in class. The child had been absent for thirteen days since the beginning of the third quarter. He reportedly stopped attending the BOCES program on or about March 15, 1996. The CSE chairperson testified that respondents' attorney asked the CSE not to change the child's placement until May, 1996. When the CSE met again on May 17, 1996, it recommended that home instruction be provided to respondents' son. Residential placement options were discussed, but no action was taken by the CSE, which was waiting for the completion of the child's physical examination. That examination had still not been completed when the CSE reconvened on June 13, 1996. The CSE recommended that the child continue to receive home instruction over the summer. The physical examination was completed on June 24, 1996.

        On July 18, 1996, the CSE met with respondents and their attorney. The child's tutor attended the meeting (Exhibit R). Although the parents requested that their son be placed in a private school in Pennsylvania, the CSE recommended that he be placed in the Anderson School in Staatsburg, New York. The Anderson School has been approved by the State Education Department to instruct emotionally disturbed students. The IEP which the CSE prepared for the child on July 18, 1996 indicated that he had been classified as emotionally disturbed and was being placed in the Anderson School on a twelve-month basis. It specified that he should be instructed in classes with a 12:1+1 child to adult ratio, and that he should receive individual counseling once per week and counseling in a group twice per week.

        The record reveals that the child had been adjudicated by the Suffolk County Family Court to be a juvenile delinquent on May 19, 1996, and that on July 31, 1996, the Family Court ordered the child to cooperate with the Adolescent Drug Treatment Program and "with the residential educational placement arranged by the school district" (Exhibit PN 7-C).

        Respondents' son began classes at the Anderson School on July 29, 1996. He continued to receive instruction in the private school until the beginning of a school recess on August 17, 1996. Although he was reportedly supposed to remain at the school during the recess, the child was taken home by his mother for a dental appointment. The child's mother subsequently advised the CSE that her son would not return to the Anderson School.

        By letter dated September 20, 1996, the child's mother requested that an impartial hearing be held because she believed that his classification and placement were inappropriate (Exhibit D-A). In a letter dated September 26, 1996, the child's mother requested that six independent evaluations be performed. The CSE considered her request for independent evaluations at a meeting which was held on September 26, 1996. Her request was denied. The CSE determined that the Anderson School continued to be an appropriate placement for the child, but it agreed to recommend that home instruction be provided to him until the hearing officer rendered a decision in the requested hearing (Exhibit S).

        The hearing, which had been scheduled to begin on October 23, 1996, did not begin until December 16, 1997. During the third day of the hearing on March 6, 1997, the hearing officer expressed her concern about the absence of a current educational evaluation of the child. The parties agreed to have an independent educational evaluation at petitioner's expense and to have a vocational evaluation by a unit of the State Education Department. However, as the hearing officer noted in her decision, the child did not keep his appointments to be evaluated. The hearing concluded on June 6, 1997.

        In her decision which was rendered on July 11, 1997, the hearing officer concluded that the child's classification had not been validly changed from learning disabled to emotionally disturbed because his teacher had not participated in the CSE meeting which was held on March 1, 1996, or in any subsequent CSE meeting. She ruled that the child should remain classified as learning disabled. In doing so, the hearing officer indicated that the child could continue to have the benefit of the testing modifications on his IEP in the event that he sought to obtain a general equivalency diploma, or to pursue adult education, as long as he remained classified as learning disabled. Although her rationale would have been equally applicable to respondents' challenge to the appropriateness of their son's educational placement, the hearing officer chose to invalidate the child's IEP on the ground that the CSE had failed to obtain an educational evaluation as part of his triennial evaluation during the 1995-96 school year. She rejected petitioner's argument that the results of the Stanford Achievement Tests which were administered to the child in January, 1996 provided adequate information about the child's present levels of educational performance. However, she recognized that the child had refused to be tested any more, and she declined to remand the matter back to the CSE because respondents testified that they could not make their son attend school and he was older than the compulsory attendance age. The hearing officer relieved petitioner of any responsibility to pay for an independent evaluation.

        The board of education contends that the hearing officer exceeded her jurisdiction by making findings on issues which pre-dated the child's IEPs for the 1996-97 school year, or which were not raised by the parties. I disagree. The hearing officer briefly summarized the child's school career prior to the 1996-97 school year, but she made no ruling with respect to those school years, except with regard to the child's triennial evaluation during the 1995-96 school year. That issue is, however, closely linked to respondents' challenge to their son's classification and placement during the 1996-97 school year. Furthermore, respondents raised the issue of the appropriateness of the CSE's evaluation in their request for independent evaluations. Petitioner asserts that neither party questioned the appropriateness of the child's IEP testing modifications, and it argues that it was therefore improper for the hearing officer to determine that the child should remain classified as learning disabled so that he could have the benefit of those testing modifications. While I agree with petitioner that the issue of the child's classification should not turn upon whether he could have the benefit of testing modifications, it does not follow that the hearing officer exceeded her jurisdiction.

        Petitioner further contends that the hearing officer erred by annulling the CSE's recommendation that the child be classified as emotionally disturbed rather than learning disabled because petitioner's CSE did not include the mandatory teacher member at the March 1, 1996 CSE meeting. As noted above, Federal regulation and State statute require that the multi-disciplinary term, i.e., CSE, which prepares a child's IEP include the child's teacher. Petitioner does not contest the fact that there was no BOCES employee who could have served as the child's teacher in attendance at the March 1, 1996 CSE meeting, when the child's classification was changed from learning disabled to emotionally disturbed. I find that the purported change in classification on that date was a nullity (Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 92-24; Application of a Child with a Handicapping Condition, Appeal No. 93-28).

        Petitioner points out that the CSE met on five other occasions subsequent to March 1, 1996, i.e., March 15, May 17, June 13, July 18, and September 26, 1996. It asserts that the child had ceased to attend his BOCES placement as of March 14, 1996, and it argues that it could lawfully designate Robert Becker, the BOCES principal, to act as the child's teacher at the CSE meetings which were held on March 15, 1996 and May 17, 1996. Petitioner further argues that Ms. Andrea Maldari, the instructor assigned by petitioner to home tutor the child after the CSE had recommended home tutoring at its May 17 meeting, was the child's teacher member of the CSE at the CSE meetings which were held on June 13 and July 18. With respect to the September 26, 1996 CSE meeting, petitioner asserts that Mr. Harv Hilowitz, a certified special education teacher as well as principal of the Anderson School, served as the child's teacher member of the CSE.

        I note that in 1985, the U.S. Education Department's Office of Special Education opined that when a child was enrolled in a BOCES program, the teacher member of a multi-disciplinary IEP team could be a representative of the BOCES who was certified in the area of the child's disability and knowledgeable about the child's educational program (EHLR 211:367). Although the same office opined in 1992 that a school district must ensure that both the child's teacher and a public agency representative other than the teacher attend each IEP meeting (18 IDELR 1036), it does not appear that the latter opinion was intended to override or replace the earlier opinion with respect to children who have been placed by their school districts in BOCES educational programs. Petitioner has submitted proof that Mr. Becker, the BOCES principal who attended the March 15, 1996 CSE meeting, is certified by the Education Department to teach special education (Exhibit Z-1). Mr. Becker also served as the teacher member of the CSE when it met on May 17, 1996. At that time, respondents' son had not attended the BOCES program, or any other program, for almost two months. An explanatory note which has been published with the relevant Federal regulation indicates that:

"If the child is not in school or has more than one teacher, the agency [school district] may designate which teacher will

participate in the meeting … Either the teacher or the agency representative should be qualified in the area of the child's suspected disability" (34 CFR 300.344, Note 1 [c]).

        Petitioner asserts that the defect in the CSE composition at its March 1, 1996 meeting was cured by Mr. Becker's participation at the CSE meeting on March 15 and May 17. I agree (Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 96-28). Ms. Maldari, the child's home tutor, was the child's teacher for purposes of satisfying the teacher member requirement at the June 13 and July 18 CSE meetings. I also find that Mr. Hilowitz was qualified to serve as the teacher member of the CSE at its September 26 meeting. Therefore, I must annul the hearing officer's finding to the contrary.

        Petitioner also argues that the hearing officer misconstrued the applicable Federal and State regulations in finding that the child's triennial evaluation was deficient because it did not include an educational evaluation. The relevant Federal regulation, 34 CFR 300.534, does not prescribe the components of a triennial evaluation. Its State counterpart, 8 NYCRR 200.4 [e][4], reads as follows:

    "A committee on special education shall arrange for an appropriate reevaluation of each student with a disability at least every three years by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. The triennial evaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education."

        When this child's triennial evaluation was performed during the 1995-96 school year, the child was classified as learning disabled because of his dyslexia, i.e., difficulty with reading. He was evaluated in November, 1995 by a BOCES psychologist, who did not assess his academic achievement. In January, 1996, the Stanford Achievement Tests were administered to the child at the BOCES. The hearing officer found that the Stanford Achievement Tests alone would not qualify as an educational evaluation because they were used with all of the children in the BOCES facility. She relied upon the definition of the word "evaluation" in 34 CFR 300.500 (b), which provides in part that:

"The term means procedures used selectively with an individual child and does not include basic tests administered to or procedures used with all children in school, grade, or class."

        Petitioner relies upon my decision in Application of a Child with a Disability, Appeal No. 96-24, for the proposition that a CSE is not obligated to perform the kind of individual evaluation which it must do for an initial referral when it performs a triennial evaluation. I find that petitioner's reliance upon that decision is misplaced. While it is true that a triennial evaluation need not be as extensive as an initial evaluation, it must nevertheless accurately identify the child's special education needs so that the CSE can not only determine whether the child continues to be eligible to receive special education, but also determine an appropriate classification and educational program for the child.

        Petitioner asserts that the BOCES psychologist discussed the child's academic performance during the two preceding school years in his report (Exhibit D-C), and it argues that the psychologist's report met the standard of an appropriate triennial evaluation. Having reviewed the psychologist's report, I find that its very brief discussion of his academic achievement did not provide adequate information to the CSE, in the absence of an educational evaluation. Even if I were to accept petitioner's contention that the Stanford Achievement Tests could be used in an educational evaluation notwithstanding the fact that they were apparently administered to each child in the BOCES special education program, I must point out that an evaluation is more than a series of test scores, and petitioner has failed to offer evidence of more than the two Stanford test scores. Therefore, I must sustain the hearing officer's determination with regard to the adequacy of the child's triennial evaluation. Absent proof of an adequate evaluation, petitioner cannot show that it has met its burden of proof with respect to the child's classification or placement.

        Petitioner asserts that the hearing officer violated the pendency provisions of Federal and State law (20 USC 1415 [j]; Section 4405[4] of the Education Law) by ordering that the child be classified as learning disabled. The board of education contends that the child’s last agreed upon IEP classified the child as emotionally disturbed and provided that he be educated in the Anderson School. That IEP was challenged in this proceeding as to both classification and placement. While neither party could insist upon a unilateral change in the child’s IEP during the pendency of this proceeding, the pendency provisions do not preclude a hearing officer from determining that the board of education had not met its burden of proof with regard to the challenged IEP. However, the hearing officer premised her determination that the child should be classified as learning disabled upon the fact that he had been previously classified as learning disabled. She did not find that the record demonstrated that he should be classified as learning disabled. Under the circumstances, the hearing officer should have remanded the matter to the CSE to have the child re-evaluated and to make a new recommendation for classification and placement. Until the CSE makes a new determination, I agree with petitioner that the 1996-97 IEP remains in effect.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the hearing officer's decision to the extent that it found that petitioner's CSE lacked the requisite teacher member at the meetings which were held after March 1, 1996, and that it ordered that the child be classified as learning disabled is hereby annulled.

 

 

 

Dated: Albany, New York __________________________
September 30, 1998 FRANK MUŅOZ