93-042

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for an order directing respondent to pay for their child's tuition during the 1993-94 school year in a private school selected by petitioners. The appeal must be dismissed.

Petitioners' child is 11 years old. In September, 1987, the child entered kindergarten in respondent's School 18. She remained in School 18 through the 1991-92 school year. The child's kindergarten teacher reported that the child was capable of doing average school work, but that she lacked the social and emotional skills which were important to achieve success in school. The child's scores on a standardized test with national norms were within the average range. In the first grade, the child was described by her teacher as being very social, and, on occasion, distracting to others. The child received instruction in remedial mathematics. Her standardized test results in the first grade revealed that the child had substantial deficits in reading and mathematics.

At the end of the first grade, petitioners obtained a private evaluation of the child. The evaluator reported that the child had attained a verbal IQ score of 100, a performance IQ score of 85 and a full scale IQ score of 91. Noting that there was a significant difference between the child's verbal and performance IQ scores, the evaluator opined that the difference was more likely to be the result of motivational issues than a basic difficulty in learning. The evaluator further opined that the child's attention difficulties were the result of self-centered behavior, rather than an attention deficit disorder.

While in the second grade during the 1989-90 school year, the child continued to have difficulty focusing upon her work, and her academic performance, as revealed on standardized tests, continued to be below average. The child's pediatrician prescribed Cylert, a medication to assist her in remaining focused on her work. At the end of the second grade, the child's teacher reported that the child had made some progress academically and behaviorally.

Nevertheless, in April, 1990, respondent's committee on special education (CSE) recommended that the child be classified as learning disabled and be provided with resource room services.

The child has remained classified as learning disabled, and her classification is not in dispute.

Despite the paucity of evaluative information in the record to support the child's classification, I may not review the appropriateness of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 ÝN.D.N.Y., 1987¨).

The child's individualized education program (IEP) for the 1990-91 school year provided that the child was to receive five periods per week of resource room services and was to be evaluated to ascertain whether she should receive either individual or group counseling by a guidance counselor. The record does not reveal whether such counseling was provided. The IEP further provided that the child should receive extended time for tests and could take tests in an alternate site. The IEP revealed that the child was reading at the high first grade level and that her mathematical skills were at the beginning second grade level. Her resource room teacher testified in the hearing in this proceeding that by the end of the second grade, the child's oral reading skills were at the mid-second grade level. In the Spring of 1991, the child received a score slightly above the statewide reference point on the third grade Pupil Evaluation Program (PEP) Mathematics Test, but scored below the statewide reference point on the third grade PEP Reading Test. Her teacher reported that the child was manageable while she was on medication, and that her writing was uncoordinated.

With petitioners' concurrence, the child was retained in the third grade for the 1991-92 school year. During her second year in the third grade, she continued to receive resource room service once per day, and she received private tutoring. In January, 1992, the child ceased taking medication for her alleged hyperactivity. In an assessment completed in March, 1992, the child's reading skills were found to be at the low second grade level and her mathematic skills were at the low third grade level. In May, 1992, the child achieved scores above the statewide reference point on both the third grade Reading and Mathematic PEP tests. At the hearing in this proceeding, the child's mother testified that the child continued to have trouble reading, and that her teachers had recommended that she be enrolled in a summer reading program offered by a local college in order for her to be ready for the fourth grade. The child's resource room teacher testified that the child had begun the 1991-92 school year with middle second grade level reading skills, and ended the school year with oral reading skills at the third grade level and reading comprehension skills at the fourth grade level. Her third grade teacher testified that the child had worked hard and made academic progress.

For the 1992-93 school year, the CSE recommended that the child continue to receive resource room services once per day, while enrolled in a regular education fourth grade class.

However, petitioners did not accept the CSE's recommendation, and enrolled the child in the Hartland School, which is a private school. At the time of the child's enrollment, the Hartland School had not been approved by the State Education Department to provide instruction to children with disabilities. The Hartland School was subsequently approved by the Education Department to provide such instruction. The record reveals that during the 1992-93 school year, the Hartland School had an enrollment of 12 children, who received instruction from three teachers in a classroom located in an elementary school of the North Colonie Central School District. While in the Hartland School, the child passed the New York State Fourth Grade Science Examination as well as the third grade Reading and Mathematics PEP tests. The child's IEP for the 1992-93 school year, prepared by the CSE, reported that the child had third grade reading and mathematics skills. On tests completed in the Hartland School in May, 1993, the child reportedly obtained grade level equivalent scores of 5.0 in reading comprehension, 2.3 in reading decoding, 4.5 in mathematical computation, and 4.9 in mathematical applications.

On June 23, 1993, petitioners met with the CSE to discuss the child's program for the 1993-94 school year. The CSE reviewed the results of an observation of the child in the Hartland School conducted by respondent's school psychologist. The child's teacher in the Hartland School described to the CSE the child's progress during the 1992-93 school year. Petitioners requested that their child continue in the Hartland School for the 1993-94 school year, and that respondent pay for the child's tuition. They were advised that the CSE would consider their request, but they were not allowed to participate in the development of the child's IEP for the 1993-94 school year. The CSE subsequently recommended that for the 1993-94 school year, the child be enrolled in a regular education fifth grade class and that she receive a total of five periods per week of resource room services, three of which were to be provided in her regular education class and the remaining two periods were to be provided in a resource room.

Petitioners disagreed with the CSE's recommendation, and requested that an impartial hearing be held. Before the hearing was held, the child was evaluated by respondent's school psychologist, who conceded at the hearing in this proceeding that the child's triennial re- evaluation had been inadvertently omitted during the 1992-93 school year. The school psychologist reported that, on a different version of the test to assess the child's cognitive skills than was used by the private evaluator in 1989, the child achieved a verbal IQ score of 84, a performance IQ score of 69, and a full scale IQ score of 75. The child's score on a test of her visual motor skills was approximately three years below her age level. The school psychologist opined that the child would assimilate material at a slower rate than her peers, and would benefit from a program which reinforced new material learned in the classroom.

The hearing commenced on August 9, 1993 and was concluded on August 13, 1993. In a decision dated August 29, 1993, the hearing officer held that the CSE had improperly barred petitioners from actively participating in the development of the child's IEP for the 1993-94 school year. The hearing officer found that he was unable to determine whether the program recommended by the CSE for the 1993-94 school year was appropriate because there was insufficient evaluative information in the record to clearly establish the child's educational needs, especially her need, if any, for small group primary instruction. Although the CSE had apparently relied upon the results of the private psychological evaluation which petitioners had obtained in July, 1989, in order to classify the child in April, 1990, respondent introduced no evidence to establish that it had conducted a physical examination, a social history or any other appropriate assessment required by State regulation in order to initially classify a child (8 NYCRR 200.4 Ýb¨Ý1¨). Indeed, the record does not reveal whether the CSE has ever conducted an educational evaluation, although the child's resource room teacher did administer some individualized tests in February, 1992. In view of his finding that respondent had failed to provide sufficient information about the child to determine her instructional needs, the hearing officer held that respondent had failed to meet its burden of proving the appropriateness of the program recommended by the CSE. The hearing officer declined to order that the child be placed in the Hartland School for the 1993-94 school year, because the absence of sufficient information about the child's needs precluded him from determining the appropriateness of such placement. The hearing officer remanded the matter to the CSE, with the direction that the CSE conduct a complete triennial re-evaluation of the child to ascertain whether she remains eligible to receive special education and to determine an appropriate program for her.

Petitioners assert that the hearing officer erred in finding that he lacked sufficient information to determine the needs of the child and should have found that an IEP prepared by the Hartland School for the 1993-94 school year would be appropriately implemented in that school. They further assert that the IEP for such school year, which the CSE prepared, is inappropriate because they were excluded from participating in its development, the CSE failed to conduct the child's triennial re-evaluation and the IEP does not identify or meet the child's needs.

Although respondent has not cross-appealed from the hearing officer's decision, it nevertheless asserts that petitioners were not precluded from participating in the development of the child's IEP for the 1993-94 school year. Respondent's assertion is premised upon its erroneous belief that a CSE must simply afford parents an opportunity to express their concerns.

An opportunity for parental participation in CSE meetings in which IEPs are prepared is required by both Federal and State regulations (34 CFR 300.415 Ýa¨; 8 NYCRR 200.4 Ýc¨Ý3¨). Merely listening to the parents' concerns and then withdrawing to prepare a child's IEP in executive session, as happened in this case, does not afford the parents meaningful participation in the IEP process (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Handicapping Condition, Appeal No. 92-7).

Respondent bears the burden of establishing 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 Suspected of Having a Disability, Appeal No. 93-9). 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 objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-12). In this instance, there is no dispute that the child did not receive the triennial re-evaluation required by State regulation (8 NYCRR 200.4 Ýe¨Ý4¨), prior to the CSE's preparation of the child's IEP for the 1993-94 school year. I find that the IEP prepared by the CSE does not reflect the results of a current evaluation.

A child with a disability or suspected of having a disability must be assessed in all areas of the suspected disability, including where appropriate, social and emotional status, academic performance, and communicative status (8 NYCRR 200.4 Ýb¨Ý4¨Ývi¨). Although the child has been suspected of having an attention deficit disorder and/or dyslexia, there is remarkably little evidence in the record to establish either the etiology of her learning disability or the manner in which the disability impairs her ability to benefit from regular instruction. The brief report of the private psychological evaluation and the July, 1993 psychological evaluation do not support the claim that the child has an attention deficit disorder. The child's school records for kindergarten through her first year of the third grade suggest that the child had difficulty focusing upon her work. However, I find that the documentary and testimonial evidence relating to the child's performance in the second year of the third grade and thereafter do not afford a basis for concluding that the child continues to have difficulty remaining focused upon her work.

The director of the Hartland School testified that, if the child attended that school for the 1993-94 school year, she would receive instruction in reading, writing and spelling in a group of 3 children. Although the parties strongly disagree about the child's alleged need to have instruction provided in a small class or group, I find that the record does not afford a basis for determining the child's management or other need for small group instruction. There is conflicting evidence in the record of the child's alleged dyslexia. However, the resolution of that issue would not be dispositive of the nature of the child's educational needs. In order to plan an appropriate program for the child, it is essential to have adequate information about her learning style, her expressive and receptive language skills, the impact of her decoding skill deficit upon her ability to benefit from grade level content courses, and the nature of her alleged deficit in written expression. I find that the CSE lacked adequate information about the child's needs and activities to plan an appropriate program for her (Application of a Child with a Disability, Appeal No. 93-19), and concur with the hearing officer's conclusion that respondent failed to meet its burden of proving the appropriateness of the program recommended by the CSE.

Although I have found that the CSE lacked sufficient information to prepare an appropriate program for the child, I must nevertheless ascertain whether there is an adequate basis in the record to determine if the Hartland School's program would be appropriate for the child (Application of a Child with a Handicapping Condition, Appeal No. 92-21; Application of a Child with a Disability, Appeal No. 93-19). In addition to the information which the CSE had before it, the record includes the July, 1993 psychological evaluation and the testimony of the director of a private tutoring organization and the director of the Hartland School. While the psychological evaluation provided some useful information about the child, it nevertheless does not provide an adequate basis for determining the appropriateness of the Hartland School's program, in which there is a minimal opportunity for the child to interact with non-disabled peers. Similarly, the testimony of both individuals also provided some useful information about the child, but left unanswered questions about the child's needs and the appropriateness of the private school's program, especially the extent of her need for instruction in so restrictive an environment as the Hartland School. Despite references by witnesses in the hearing to a report about the child which was prepared by the staff of a local college and which was considered by the CSE prior to making its recommendation, neither party introduced the report into evidence.

In appropriate circumstances, a board of education may be compelled to pay for the cost of a child's instruction in a private school selected by the child's parents (School Committee of the Town of Burlington v. Dept. of Education Massachusetts, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 93-1). A board of education must pay for a child's tuition, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents are appropriate, and equitable considerations support the parents' claim.

Respondent did not meet its burden of proof with respect to the first of three elements, i.e., the appropriateness of its program. However, petitioners bear the burden concerning the second element, i.e., proving the appropriateness of the Hartland School's program for the 1993-94 school year. I find that they have not met their burden of proof, because of the inadequacy of the present record to ascertain the child's needs and the appropriateness of the private school's program.

In accordance with the hearing officer's decision, the child must receive an appropriate triennial re-evaluation to adequately identify her needs. The CSE must then afford petitioners an opportunity to participate in the preparation of the child's IEP for the 1993-94 school year.

If petitioners are dissatisfied with the child's IEP, they may seek review of the IEP in an impartial hearing.

Petitioners also assert that they are entitled to receive attorney's fees with regard to the impartial hearing and the appeal in this proceeding.

Federal statute provides, in part, that:

"In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party." (20 USC 1415[e][4][B]¨)

Although attorney's fees may be awarded for success at the administrative level, the statute does not authorize an administrative officer to award attorney's fees (Application of a Child with a Handicapping Condition, Appeal No. 90-17).

THE APPEAL IS DISMISSED.