The State Education Department
State Review Officer

No. 01-082




Application of a CHILD SUSPECTED OF HAVING 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 Syracuse City School District

Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC, attorneys for petitioners, Kenneth S. Ritzenberg, Esq., of counsel

Hancock & Estabrook, LLP, attorney for respondent, Renee L. James, Esq., of counsel



        Petitioners are the grandparents of the student, but they meet the definition of parent set forth in 8 NYCRR 200.1(ii). They appeal from an impartial hearing officerís decision which dismissed their claim that respondentís Committee on Special Education (CSE) should have identified their granddaughter as a student with a disability, and denied their request for tuition reimbursement for the unilateral placement of their granddaughter in a residential treatment center for portions of the 1999-2000 and 2000-01 school years. The hearing officer also denied their request for compensatory education. They further appeal from his ruling that respondent had not violated their due process rights. The appeal must be sustained in part.

        When the hearing began on November 1, 2000, the student was 14 years old and attending the Discovery Academy, a residential treatment center in Provo, Utah for teens who have experienced trouble at home, school and in their community (Exhibits P-22 & 23). She had not been classified by respondent as a student with a disability, which is a matter in dispute. The Discovery Academy has not been approved by the New York State Education Department to provide special education to students with disabilities.

        The studentís natural parents have a history of mental illness and substance abuse, and were unable to care for her (March 15, 2001 Transcript pp. 136-39). She had an unsettled early childhood, prior to going to live with petitioners when she was three and one-half. In 1989, her grandmother referred her to a developmental evaluation center because of concerns about her language development. The evaluator reported that the student had average intellectual skills and excellent attending skills, but some weaknesses in communication and motor skills. The studentís low achievement test scores were attributed to a lack of cultural exposure (Exhibit SD-2). She attended a private school with a very low child to adult ratio for preschool and kindergarten. A speech/language (S/L) evaluation done in 1990 when she was four years old indicated she did not need services (Exhibit SD-4). An occupational therapy (OT) evaluation done in 1992 indicated that she did not require OT services (Exhibit SD-3).

        In September 1992, the student entered first grade in one of respondentís elementary schools. In December of that year, one of the studentís team teachers referred her to respondentís CSE because they were concerned about her ability to acquire and retain early reading skills (Exhibit SD-5). The school psychologist who evaluated the student made four classroom observations. In his January 31, 1993 report, the psychologist indicated that the studentís on-task behavior was not significantly different from that of her peers, but he noted that she was passive and did not give frequent responses to questions. On a standardized achievement test, the student achieved standard scores of 73 for both letter-word identification and passage comprehension, 93 for calculation, and 90 for applied problems, indicating a significant weakness in her reading skills. The school psychologist noted that the studentís teachers were making curricular and instructional modifications for her. Although he concluded that she did not have an educational disability at the time, the psychologist cautioned that the student was "at risk for academic failure in reading if her programming is not carefully planned" and suggested that her progress be monitored (Exhibit P-12).

        In a checklist that they completed for the CSE, the studentís teachers noted that she had some difficulty adjusting to changes in routine and had a short attention span (Exhibit P-13). At a meeting on May 18, 1993, which the studentís grandmother attended, the CSE determined that the student was not eligible for special education because she did not have a disability that adversely affected her educational performance (Exhibits P-17 and 18).

        The student did quite well in elementary school, receiving mainly Aís and Bís on her report cards. A report from her first grade teacher at the end of the year indicated that the studentís abilities had "bloomed" in May and June, and that she was reading on grade level (Exhibit SD-1). The student participated in reading and math labs in the second and third grades, and she was privately tutored once or twice a week after school. Her second grade report card indicates that she made good progress in reading, and had only four absences. Her third grade report card indicates that she completed the year on a fourth grade math level and had a 3.2 reading level, with few absences (March 14, 2001 Transcript p. 42). Her fourth grade teacher reported that the studentís progress in reading had been outstanding (March 14, 2001 Transcript p. 43). Her fifth grade report card indicated that she had only five absences, and her reading scores were at a 6.1 level (Exhibit SD-1).

        The studentís sixth grade year was successful academically as well, as evidenced by her completing the year at a 7.2 reading level. However, she was absent 16 days, and her teacher reported that her work was inconsistent and her effort poor at times (Exhibit SD-1; March 14 2001 Transcript p. 43). Her grandmother testified at the hearing that the student became more defiant at home, and began to associate with some youngsters of whom the grandmother did not approve (March 15, 2001 Transcript p. 162).

        On her first day of school in seventh grade, the 1998-99 school year, the student was injured after she was reportedly pushed by another student (March 15, 2001 Transcript p. 165). Although the school district transferred the other student to another school, that studentís relatives reportedly continued to threaten this student (March 15, 2001 Transcript pp. 165-66). The grandmother testified that her granddaughter was rude, obnoxious, and would not follow directions at home (April 11, 2001 Transcript p. 154). Although the family started seeing a family therapist, the studentís behavior did not improve. Despite organizational and emotional support from the guidance counselor, the studentís educational performance began to deteriorate (March 15, 2001 Transcript pp. 31, 166). She also received five disciplinary referrals that year (Exhibit P-3).

        The studentís grandmother testified that she wanted to have the student evaluated by the CSE, but she was dissuaded by a guidance counselor from doing so (March 15, 2001 Transcript pp. 167-69). Consequently, she did not make a referral to the CSE (April 11, 2001 Transcript p. 156). She did, however, have her granddaughter privately evaluated by a neuropsychologist, in January 1999 (Exhibit SD-6; March 15, 2001 Transcript p. 169).

        The neuropsychologist noted that the student spoke with a Hispanic accent, although she was not Hispanic. On the Weschler IntelIigence Scale for Children - III (WISC-III), her verbal IQ score was 92, her performance IQ score 93, and her full scale IQ 92, with a wide degree of scatter in her subtest scores. The neuropsychologist believed that the student had an information processing disorder, based on problems with memory tasks involving sequenced, auditory information. He concluded that her processing problems were a manifestation of an "attention deficit/activation disorder," which he defined as a variant of attention deficit disorder (ADD) characterized by difficulties with sequencing, sustained attention and aspects of organization (April 11, 2001 Transcript p. 42). While the student did not appear to be distracted during the testing situation, she scored in the lower end of the low-average range on a test of freedom from distractibility. This was consistent with a questionnaire filled out by her grandmother, and suggested a high likelihood that she was manifesting symptoms of ADD (April 11, 2001 Transcript pp. 33, 71).

        The neuropsychologist recommended that the student be classified as a student with a disability, and that her academic progress be carefully monitored and accommodations be made for her. He cautioned that there was a high risk of a specific learning difficulty and of co-morbid emotional difficulties such as depression, anxiety and oppositional behavior (Exhibit SD-6; April 11, 2001 Transcript pp. 45-46, 56). Finally, he suggested that she see a neuropsychiatrist to determine whether pharmacological intervention was warranted (April 11, 2001 Transcript p. 80). The studentís grandmother gave a copy of his report to the guidance counselor, who gave it to the school psychologist (March 15, 2001 Transcript p. 184). However, school personnel did not refer the student to the CSE.

        As the studentís attendance problems increased throughout that year, her grades fell precipitously. She failed most or all of her academic classes, though she continued to read on grade level. Teacher comments on her report card indicated that she did not seem to be trying (Exhibit P-2). She also had difficulties at home with her grandparents. Her grandparents contacted an organization that provided a short respite, placing the student with another family for a few weeks, and offering the services of a social worker (March 15, 2001 Transcript p. 171). At one point, the grandmotherís husband moved out of the house because of the studentís behavior. In July, 1999, he filed a Persons in Need of Supervision (PINS) petition based on her "incorrigibility/ungovernability," but never completed it (Exhibit P-21; April 11, 2001 Transcript pp. 92, 162).

        At petitionersí request, respondent agreed to transfer the student to another middle school to repeat seventh grade in a new environment during the 1999-2000 school year (March 15, 2001 Transcript pp. 9-10). The studentís grandmother gave a copy of the neuropsychologistís report to personnel at the new school, and discussed it with the studentís new guidance counselor (April 11, 2001 Transcript p. 104; March 15, 2001 Transcript pp. 25-26). The guidance counselor and teachers met for weekly team meetings and discussed the student on three or four occasions (March 15, 2001 Transcript pp. 13-15, 22, 54). They developed an unwritten behavior plan, which the guidance counselor described as including tutoring, meeting with the guidance counselor at the beginning of the day, counseling twice a week, and conversations with the grandparents and the teachers (March 15, 2001 Transcript pp. 45, 85).

        Despite the extra attention that was provided, the student was tardy 11 days and absent 21 out of 45 days in the first quarter, and was failing most of her seventh grade subjects for the second consecutive year (March 14, 2001 Transcript pp. 111-12, 143). She began to refuse to get up to go to school. The grandmother would call the guidance counselor, who came to the studentís home to bring her to school (March 15, 2001 Transcript pp. 11, 83).

        At the hearing, the counselor attributed the studentís reluctance to attend school and failing grades to family problems and involvement with neighborhood gangs (March 15, 2001 Transcript p. 31; April 11, 2001 Transcript pp. 104-05). She testified that the studentís teachers had discussed the neuropsychologistís report, but they did not agree that the student had attentional difficulties or that she had special needs, despite her weak organizational skills (March 15, 2001 Transcript pp. 62-63). The counselor explained that the studentís attendance was the primary issue, and that she should be attending school before a referral to the CSE could take place (March 15, 2001 Transcript pp. 65-66). The student was not referred to the CSE during that year (March 15, 2001 Transcript pp. 50, 63-64).

        In the fall of 1999, petitioners contacted an academic consultant to locate another educational placement for their granddaughter (April 11, 2001 Transcript pp. 105-06). The educational consultant reviewed the studentís records, met with the family, and suggested several out of state schools (April 11, 2001 Transcript p. 107). Petitioners selected the Discovery Academy, a residential treatment facility in Provo, Utah, which had a therapeutic approach and a demerit/reinforcement system, as well as levels of independence and privileges (Exhibits P-22 & 23). The student began attending the Discovery Academy on or about December 28, 1999 (April 11, 2001 Transcript p. 113).

        A psychological and educational assessment was conducted at the Discovery Academy in December 1999. The examining psychologists noted that there was an intense conflict between the studentís anger toward those with whom she had a personal relationship and her co-existent feelings of guilt and self-condemnation. She was reported to be pessimistic about the future, feeling a sense of hopelessness and despair, as well as brooding about the past, while feeling resentment towards others and sorry for herself. The assessment indicated that the studentís discontent, outbursts and moodiness frequently evoked critical reactions from others, reinforcing the studentís self-protective, depressive withdrawal. Her low self-esteem and apprehensive fear of loss led her to feel increasingly hopeless, and to possibly consider suicide. The evaluators at the Discovery Academy noted that she had previously been diagnosed as having ADD, but they did not personally observe behavior to support that diagnosis. However, they suggested the use of stimulant medication. Academic testing showed that she had poor language mechanics and broad knowledge, as well as very weak dictation skills, perhaps reaching the level of a learning disability in written expression (Exhibit SD-7).

        By letter dated June 16, 2000, the grandparents requested an impartial hearing, asserting that respondent had neglected to classify the student and had failed to provide her with a free appropriate public education (FAPE) for the 1998-99, 1999-2000, and 2000-01 school years. They also claimed respondent had failed to inform them of their procedural due process rights. They sought tuition reimbursement for the 1999-2000 academic year at Discovery Academy, prospective placement and/or tuition reimbursement for the 2000-01 academic year, and compensatory education for the 1998-99 school year (Exhibit SD-9).

        Progress reports throughout the studentís first year at Discovery Academy reveal that she had difficulty adjusting, and was reluctant to make an effort (Exhibits P-24-31). Her counselor at the Discovery Academy testified she was a very difficult student, defiant and resisting authority, and, as a result, spent a lot of time in the intensive supervision unit (ISU) for infractions, such as fighting and other altercations (April 12, 2001 Transcript pp. 76-77, 83-84). In August 2000, the counselor noted that medication was helping the student to moderate her frustration and annoyance. He further noted that the student was struggling in math and science, possibly because of a learning disorder (Exhibit P-29). The studentís English teacher reported that the student seemed to struggle with ADD, and showed classic symptoms of a learning disability (Exhibit P-33). In September 2000, the counselor reported that the student was better able to control her anger and had become more confident and willing to work independently (Exhibit P-31).

        The hearing began on November 1, 2000. The Board of Education moved to dismiss the complaint on the ground that petitioners had not referred the student to the CSE. The motion was denied by the hearing officer, who indicated that he did not have enough evaluative information to determine whether the student was entitled to receive services under the Individuals with Disabilities Education Act (IDEA). He ordered respondent to perform a comprehensive evaluation of the student, including updated social and medical histories, when she returned home for the holidays in December 2000. The hearing officer advised petitioners that they would have an opportunity to review the results of the evaluation at a CSE meeting to be scheduled in January 2001, and that he would reconvene the hearing if the petitioners felt an independent evaluation was in order. He further noted that the hearing would be reconvened in any event, because the CSE could not resolve the additional issue of tuition reimbursement for prior years at the Discovery Academy (November 1, 2000 Transcript pp. 39-40).

        Respondentís school psychologist tested the student on December 26 and 27, 2000. The psychologist did not observe the student in class at the Discovery Academy but did interview one of the studentís teachers, a counselor, the student, her grandmother, her therapist, and a tutor. She extensively summarized the studentís educational and evaluative history. She reported that the student had achieved a composite IQ score of 89, within the average range of intelligence, on the Stanford-Binet Intelligence Scale-Fourth Edition. On the Weschler Individual Achievement Test (WIAT), the student received grade equivalent scores ranging from 10.5 for basic reading to 5.1 for written expression. Her math skills were found to be in the low range of achievement on the WIAT and on the Woodcock-Johnson Tests of Achievement-Revised. On the latter, she achieved a grade equivalent score of 12.3 for writing samples, but only 4.6 for dictation. On the Test of Written Language (TOWL), she received a standard score of 81 for overall writing, which was in the low average range. At the hearing, the psychologist testified that the studentís relatively low scores on portions of the WIAT and the TOWL were attributable to a lack of motivation, rather than a lack of knowledge (March 14, 2001 Transcript p. 70).

        The psychologist also testified that responses from her grandparents and teachers on behavior scales indicated significant problems with hyperactivity, aggression, conduct, anxiety and depression (March 14, 2001 Transcript pp. 73-76). In her evaluation report, the psychologist indicated that the student was severely anxious and depressed, and was unable to reach out to others to help her solve her problems. The psychologist concluded that the studentís "genetic heritage, early instability and trauma, continual difficulties at home, difficulties in school since the middle of sixth grade, and issues such as anger, anxiety, non-compliance, depression and lack of insight all make it difficult for her to see school as an asset and means of independence" (Exhibit SD-1). Nonetheless, the school psychologist recommended that the CSE not classify petitionersí granddaughter as a student with a disability, a position she also maintained at the hearing (March 14, 2001 Transcript p. 81).

        Petitioners moved out of the school district on October 1, 2000. Respondentís CSE reportedly did not learn of this until the psychological evaluation in December 2000. I note that the fact that they had moved out of the district was not disclosed in the transcript of the hearing held on November 1, 2000. No physical examination of the student was obtained by the CSE, nor was an updated social history obtained. The CSE did not meet to review the school psychologistís report or develop a program for the 2000-01 school year. The hearing continued on March 14 and 15, April 11 and 12, 2001. On August 31, 2001, the hearing officer found that respondent had met its "child find" obligations and that it had fully assessed the student to determine if she were eligible to receive services under the IDEA and its implementing regulations (34 C.F.R. ß 300.125). He further found that there was an inadequate basis in the record for classifying her as either emotionally disturbed or learning disabled. He further found that respondentís program during the 1998-99 and 1999-2000 school years was appropriate for the student, and that consequently there was no basis for an award of compensatory education. Finally, he found that respondent had not violated petitionersí due process rights.

        Petitioners challenge the hearing officerís determination that their granddaughter was ineligible to receive special education pursuant to the IDEA. They assert that the results of the December 2000 psychological evaluation demonstrate that the student was entitled to be classified as either emotionally disturbed or as learning disabled. Petitioners also argue that respondent should reimburse them for the cost of the studentís tuition at the Discovery Academy from December 1999 until they moved out of the district in October 2000, because it violated the child find provisions of the IDEA and denied the student the FAPE she should have received under the IDEA and Article 89 of the Education Law. They also seek compensatory education for the 1998-99 and 1999-2000 school years.

        Respondent argues that it was under no obligation to provide a FAPE to petitionersí granddaughter during the 1998-99, 1999-2000, and 2000-01 school years because she was not classified during those years. A school district must provide a FAPE to students who have met the criteria for identification as students with disabilities under the IDEA and Article 89 of the New York State Education Law. However, the IDEA also places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 USC ß 1412[a][3]; 34 C.F.R. ß 300.125[a][1][i]). This child find provision applies to "children who are suspected of being a child with a disabilityÖ and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. ß 300.125[a][2][ii]). To satisfy that requirement, a board of education must have procedures in place that will enable it to find such children (Application of a Child with a Disability, Appeal No. 93-41).

        In this instance, the issue is not whether the procedures were in place, but whether upon the facts presented, the student should have been referred to the CSE (Application of a Child with a Disability, Appeal No. 01-058; Application of the Board of Educ., Appeal No. 00-052). A districtís ignorance of a childís possible disability and need for special education will not relieve it of its child find obligation if it should have suspected the student had such disability. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S, 158 F. Supp. 2d 1190 [D. Haw. 2001]).

        The record reveals that this student was successful in school through the sixth grade during the 1997-98 school year. While in the seventh grade during the 1998-99 school year, the studentís attendance and school performance significantly declined, and she ultimately failed all of her academic subjects. Her grandmother had provided a copy of the neuropsychologistís report to her granddaughterís guidance counselor. The neuropsychologist had opined that the student had an educational disability. In the fall of 1999, the studentís new guidance counselor came to the studentís house on more than one occasion to escort her to school. The student was failing most of her seventh grade subjects once again.

        I disagree with respondentís assertion that the studentís problems were essentially attendance related and did not merit a referral to the CSE (March 15, 2001 Transcript pp. 67, 69-70). A studentís failure to perform in school because of absence from school does not per se afford a basis to suspect that the student has a disability (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33). However, the record in this case reveals that the studentís absences involved more than truancy. She did not attend school for an extended period of time, despite having received assistance from a therapist, a guidance counselor, and school personnel.

        I also disagree with respondent that the studentís problems were strictly related to family problems and neighborhood children, and that she was merely maladjusted. A child may be both socially maladjusted and in addition have a serious emotional disturbance that would qualify her for services under the IDEA (Application of a Child with a Disability, Appeal No. 99-73). There were several warning signs of an emotional impairment, including her sudden decline in academic performance, her absenteeism, her disciplinary violations, her turbulent family background and the cautionary notes in the neuropsychologistís report. She was found to have major depressive disorder and then dysthymia, both of which are characterized by a pervasive mood of depression, and oppositional-defiant disorder (April 12, 2001 Transcript pp. 30-31). I conclude that respondent had sufficient information to warrant a referral to its CSE by the fall of 1999. It failed to do so, and it cannot rely upon its failure to refer the student to the CSE to avoid responsibility under the IDEA for an award of tuition reimbursement (Application of the Bd. of Educ., Appeal No. 01-058).

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parentís claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        I note that the CSE failed to obtain a physical examination even though the hearing officer directed it to do so. While I would not normally designate a studentís classification in the absence of a complete evaluation including a physical examination, I find that it would be inequitable to further delay this matter by remanding it to the CSE to complete the evaluation. I also find that there is enough evaluative information in the record before me to conclude that the student would have been appropriately classified as emotionally disturbed. As such, she would have been entitled to special education services under the IDEA, which respondent failed to provide.

        Petitioners bear the burden of proving the appropriateness of the services provided by the Discovery Academy from December 28, 1999 until October 1, 2000 (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, they must show that the private school offered an educational program which met the studentís special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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 individualized education program (IEP) for the student (Application of a Child with a Disability, Appeal No. 94-20).

        I find that the Discovery Academy adequately addressed the studentís academic needs. Her special education teacher for English and history testified that the courses were broken down into smaller concepts that the student could master more easily (April 12, 2001 Transcript p. 120). In addition, she was required to concentrate for only 15 minutes segments and was allowed to retake tests (April 12, 2001 Transcript pp. 121, 130). There were peer tutors in classes of only nine students, and three counselors in the room, which enabled the special education teacher to provide almost one-on-one supervision of the student (April 12, 2001 Transcript pp. 124, 147). While the student did not make a great deal of academic progress during the period, I find that she was at least attending classes and was held accountable for learning eighth grade concepts.

        I further find that the Discovery Academy adequately addressed the studentís emotional difficulties by providing a structured and highly supervised environment (April 12, 2001 Transcript p. 104). Her counselor there testified that he provided individual and group therapy and crisis intervention (April 12, 2001 Transcript p. 74). He further testified that after being at the Academy, her behavior had changed to the point where she had begun to love her grandmother, was somewhat more appropriate in peer relationships and was better able to resolve conflicts (April 12, 2001 Transcript p. 89). After working with her intensively, he strongly believed the student required a therapeutic, structured setting to be successful. Although the residential placement selected by petitioners is highly restrictive, I am not persuaded by the record before me that there was a less restrictive placement that was available to petitioners. I find that this was the type of educational placement the student needed at the time, and conclude that petitioners have met their burden of proof.

        In order to obtain an award of tuition reimbursement, a parent must also show that equitable considerations support their claim for reimbursement (Burlington School Comm. v. Depít of Educ., 471 U.S. 359 [1985]). The record indicates that petitioners cooperated with the CSE when their granddaughter was referred in first grade, and that the studentís grandmother remained actively involved in attempting to get help for the student, meeting or speaking with school personnel on a weekly basis, and permitting them into her home to help bring the student to school. She also shared the neuropsychologistís report about her granddaughter with school staff on two occasions. I am concerned about the grandparentsí failure to notify respondent that they were no longer residents of the school district, especially by the time the hearing commenced. However, their failure to do so did not preclude respondent from performing its duties under the IDEA. Therefore, I find petitionersí claim is supported by equitable considerations.

        I note that respondent argues it should not have to reimburse petitioners for tuition at the Discovery Academy because petitioners did not provide prior notice of their intent to remove the student and place her in a private school in accordance with the provisions of 20 U.S.C.ß 1412(a)(10)(c)(iii)(I)(bb). However, there is no proof that respondent ever notified petitioners of their duty to provide such notice to the Board of Education, as the latter was required to do pursuant to 20 U.S.C.ß 1412(a)(10)(c)(iv).

        Petitioners claim that their granddaughter is entitled to receive compensatory education for the 1998-99 and 1999-2000 school years. Compensatory education is instruction provided to a student after he or she is no longer eligible, because of age or graduation, to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]). I must note that there is no evidence that the student was excluded from school during either the 1998-99 or 1999-2000 school year. The 1998-99 school year was the studentís first year in the seventh grade. It was the first year in which the student began to manifest significant difficulties. When her performance did not improve in the fall of 1999, she should have been referred to the CSE. While I do not condone respondentís failure to refer the student to the CSE, I cannot conclude on the record before me that the student is entitled to an award of compensatory education for either school year (Applications of a Board of Educ. and a Child with a Disability, Appeal Nos. 00-091 & 01-018).



        IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent that he found that petitioners were not entitled to be reimbursed for the cost of their granddaughterís tuition at the Discovery Academy from December 28, 1999 until October 1, 2000.

        IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of the granddaughterís tuition at Discovery Academy from December 28, 1999 until October 1, 2000, upon petitionersí submission of proof of payment for such expenditures.





Albany, New York


July 18, 2002