94-041

        Petitioners' child, who is 16 years old, is enrolled in respondent's Stuyvesant High School for the 1994-95 school year. When tested at the age of three, the child was reportedly identified as intellectually gifted. She was enrolled in respondent's P.S. 11 for kindergarten and part of the first grade. She attended school in Los Angeles for the remainder of the first grade and second grade. The child was enrolled in respondent's P.S. 41 for the third grade during the 1985-86 school year. She remained in P.S. 41 for the fourth, fifth and sixth grades. Through the third grade, the child received satisfactory marks and thereafter received generally excellent marks for the remainder of elementary school. Nevertheless, some of her teachers opined that the child should exert more effort.

        In September, 1989, the child was enrolled for the seventh grade in the Saint Ann's School, a private school in Brooklyn which reportedly offers instruction for gifted children in small classes. She remained in the private school through the ninth grade. Although she was described as lively and bright by her seventh grade teachers, the child was perceived by her French, science and mathematics teachers as not always willing to work on the details in their respective courses. The child's seventh grade English teacher reported that the child had some difficulty with grammatical concepts, and that her writing style was poorly organized. On standardized tests administered in March, 1990, the child's vocabulary and reading comprehension skills were reported to be in the ninety-ninth percentile, using national norms. Her English expression skills were reported to be at the ninety-seventh percentile, and her mechanics of writing skills were reported to be at the seventy-eighth percentile. The child's mathematical concepts skills were reported to be at the eighty-seventh percentile and her mathematical computation skills were reported to be at the ninety-first percentile.

        The child's eighth grade teachers expressed concern about the child's ability to remain focused. Her science teacher reported that the child's presence of mind and participation in class fluctuated wildly. The child's ninth grade teachers found her to be an able student, but her French, mathematics and science teachers reported that the child was at times unprepared. Her scores on standardized tests of English and mathematics administered in March 1992, when she was in the ninth grade, were above the ninetieth percentile, except for her score for the mechanics of writing which was at the eighty-third percentile. In June, 1992, an administrator of the Saint Ann's School described the child as " ... an extremely talented and perceptive young woman who has yet to resolve that academic excellence is her goal". She also reported that the child evaded responsibility and avoided encounters to discuss her evasion.

        In September, 1992, the child was enrolled for the tenth grade in respondent's Stuyvesant High School, a specialized high school to which children are admitted on the basis of a competitive citywide examination. Petitioners' child reportedly received a very high score on the Stuyvesant admission examination. At Stuyvesant, she was enrolled in English, French, history, chemistry, mathematics and drafting courses. The mathematics course involved the study of geometry. At the end of the first marking period for the 1992-93 school year, the child's chemistry and mathematics teacher reportedly advised petitioners that the quality of the child's work varied. In December, 1992, the child's mother met with a Stuyvesant guidance counselor to discuss the child's reported unauthorized absences from various classes and her academic difficulties. The counselor reviewed study techniques with the child, recommended private counseling for the child and her family, and tutors in chemistry and mathematics for the child. For the first semester of enrollment in Stuyvesant, students do not receive numerical grades, but are given letter grades. Her first semester grades were satisfactory, except for a "needs improvement" in chemistry and an "unsatisfactory" in mathematics. At the recommendation of the chemistry teacher, the child did not continue with chemistry for the second semester of the 1992-93 school year.

        In January, 1993, petitioners obtained a language and auditory evaluation of the child. The evaluator reported that the child's receptive language skills were well above average, and that her expressive language skills were age appropriate, but that her responses were slow. The child's hearing was found to be within normal limits, with super sensitivity for hearing sound at certain frequencies. However, the child's auditory discrimination, i.e., ability to distinguish between sounds presented simultaneously, was reported to be significantly reduced when tested against a background of noise. Additional auditory testing of the child's attention span and ability to recall revealed that she had deficits in those areas. The evaluator opined that the child had language processing and central auditory processing deficits. The evaluator suggested that the child should receive preferential seating in class to be near her teachers, whose instructions to the child should be clear and simple. The evaluator suggested that the child might benefit from a short-term program of auditory therapy, and recommended that she be evaluated by a physician to ascertain whether the child had an attention deficit disorder.

        In late February and early March, 1993, a psychiatrist neurologically evaluated the child. The psychiatrist opined that the child had a neurologically based attention deficit disorder, auditory perceptual dysfunction, receptive and expressive language dysfunction, and learning disabilities secondary to such dysfunctions. He prescribed medication for the child's attention deficit disorder, and recommended that she receive language therapy. In a letter to the guidance counselor, the psychiatrist requested that, where possible, the child be assigned to teachers with low pitched voices, that she receive preferential seating, and that she be allowed to take major examinations in a quiet place without time limits.

        The child reportedly had difficulty eating and sleeping because of the medication which she took for her attention deficit disorder. She began coming to school late, and chose not to attend her French class. Her average in mathematics dropped because of her poor attendance in that class. The record reveals that she was present for only three of the eleven examinations given in the mathematics class for the second semester, and that she was absent from school for 34 days during the second semester. She also had academic difficulty in drafting, which is a required course at Stuyvesant. Although the drafting teacher had reportedly offered to tutor the child at the beginning of the school day, the child availed herself of this opportunity on only one occasion.

        In April, 1993, the child was briefly treated by a psychotherapist, for reasons which were not disclosed in the record. She also underwent audio-training therapy at the Long Island College Hospital during the last two weeks of April, 1993. She received some tutoring in mathematics and history and received class notes and assignments from other students during this period.

        On May 12, 1993, the child was evaluated by a speech/language pathologist, who administered IQ tests and interpreted the results of those tests, although the record does not disclose the pathologist's qualifications for doing so. In any event, the speech/language pathologist reported that the child achieved a verbal IQ score of 122, a performance IQ score of 110, and a full IQ score of 117. The child's scores on each of the IQ subtests were above average, except for those which required short-term auditory and visual recall skills. On achievement tests, the child achieved standard scores of 121 in reading, 104 in spelling, and 111 in mathematics. Her comprehension skills on an oral reading test were reported to be above the twelfth grade level. On a test of written language, the child achieved a standard score of 125, although her performance on subtests involving spelling, contextual style and syntactic maturity was in the average range. She further reported that the child's perceptual speed was in the average range and that her freedom from distractibility was at the lowest level within the average range. The speech/language pathologist recommended that the child would " ... fare best in a boarding school geared towards bright learning disabled adolescents ... ", and recommended that the child receive psychotherapy to cope with her impulsivity and lack of control. The speech/language pathologist also provided the child with language training for approximately one month during which the child missed school two mornings a week.

        In early May, 1993, a representative of the Advocates for Children of New York, Inc. requested that the child be allowed to drop all of her courses, except history and mathematics, with the option of repeating her French course during the next school year. The representative also requested that the child be provided with tutoring in mathematics. The representative asserted that the child was entitled to the requested modifications and services under the provisions of Section 504 of the Rehabilitation Act of 1973. Shortly thereafter, the child's guidance counselor referred the child to the CSE. However, the referral was withdrawn at the request of the child's mother, who did not wish to have the child undergo any further evaluations before the end of the school year.

        At the end of the second semester of the 1992-93 school year, the child had a 90 average in both English and social studies. However, she had difficulty in French, mathematics and drafting, and did not receive academic credit for those courses. The child's guidance counselor asked each of the child's teachers to report the grade of "no credit" for each course in which the child was failing. The child reportedly failed the Regents examination in mathematics.

        During June and July, 1993, the child was evaluated by a private psychologist at petitioners' request. The psychologist did not test the child's IQ or her academic achievement. Instead, he administered a series of tests to assess the child's visual and auditory perception and recall skills. Although the child was taking medication for her attention deficit disorder, she nevertheless presented mild signs of that disorder, such as mild inattentiveness, while being evaluated. The psychologist reported that the child's clinical profile, as established by personality tests, suggested that she had an above average activity level, with restlessness and distractibility. He opined that the child's clinical profile demonstrated that she might be at an increased risk for problems associated with a conduct disorder, such as poor school adjustment and family conflict. The psychologist further opined that the child's placement in a residential school had "... the highest probability of meeting [the child's] needs and encouraging her to make the most of her intellectual potential."

        Petitioners enrolled the child in the Landmark School, a private school in Massachusetts for the Summer of 1993. The child received instruction in geometry, social studies, language arts, grammar and composition, study skills, and art. The child was reportedly successful in the summer program, which focused upon developing her organizational, writing, and study skills. Near the end of summer school, the child ceased taking medication for her attention deficit disorder because she disliked the medication's side effects.

        On August 10, 1993, the child was examined by a second psychiatrist, who diagnosed the child as having an attention deficit disorder with hyperactivity (ADHD), which was described as a neurologically based disorder of brain regulation, and that the child also had an unspecified learning disability. The psychiatrist opined that the child required placement in a residential school that would provide a high level of academics and remedial treatment for her learning disability, including psychotherapy as needed. The psychiatrist recommended that the child remain in the Landmark School for the 1993-94 school year.

        Petitioners enrolled the child at their expense in the Landmark School, where she remained for all of the 1993-94 school year. The child took courses in American literature, U.S. history, algebra, chemistry and English composition. An administrator of the Landmark School testified at the hearing that the school used a traditional high school curriculum, but that its program focused upon developing student skills, rather than learning course contents. Although the child reportedly did well academically, she was involved in at least two disciplinary incidents, and was not invited to return to the Landmark School for the 1994-95 school year.

        At petitioners' request, the child was referred to respondent's CSE in October, 1993. On November 3, 1993, when the CSE met with the child's mother, petitioners consented to having the child evaluated. The CSE decided to have the child's cognitive skills retested because of concerns about the qualifications of the speech/language pathologist to administer and interpret the IQ test given to the child in May, 1993. The child was evaluated by one of respondent's school psychologists on November 9, 1993. The school psychologist readministered the same IQ test which had been administered to the child in May, 1993, notwithstanding the fact that the speech/language pathologist had reportedly reviewed the test questions and answers with the child after administering the exam to her. The school psychologist reported that the child had achieved a verbal IQ score of 139, a performance IQ score of 127, and a full scale IQ score of 136, which were approximately 17 points above the scores which she had achieved in May, 1993. Her score for the freedom from distractibility index also improved from 90 in May to 131 in November.

        The CSE met with the child's mother and her advocate on November 15, 1993. After reviewing its evaluation, as well as those which petitioners had obtained, the CSE recommended that the child not be classified as learning disabled. The CSE's recommendation was based upon its belief that the child's "academic and psychosocial levels" did not warrant her identification as a child with a disability or the provision of special education services to her.

        In December, 1993, the private psychologist who had evaluated the child in June, 1993 completed an additional evaluation of the child. Using a different test to assess the child's cognitive skills, the psychologist reported that the child had achieved a standard score of 134. He further reported that the child's standard scores on achievement tests were 122 in reading, 123 in mathematics, 111 in written language and 142 in oral language. The psychologist also evaluated the child's information processing abilities, by testing her attention and memory skills. Her standard scores ranged from 104 in attention and concentration to 120 in verbal memory, indicating that the child had a weakness in attention and concentration compared to scores in verbal memory, vocabulary and comprehension. The psychologist opined that the child had deficits in auditory processing, speed of processing, attention to detail, organization and integration of information, and attention and concentration. He further opined that the child's reading ability was impaired by a weakness in phonics, and her writing skills were impaired by deficits in spelling and word usage.

        At petitioners' request, an impartial hearing was held to review the CSE's recommendation. The hearing commenced on June 8, 1994 and concluded on July 12, 1994. In a decision dated October 12, 1994, the hearing officer held that the child did not meet the Federal and State regulatory definitions of the term child with a learning disability (34 CFR 300.541; 8 NYCRR 200.1 [mm][6]), because she did not manifest a severe discrepancy between her expected and actual achievement. The hearing officer found that although the child had learning deficits, she had done well in classes which she had attended regularly and in which she had worked. The hearing officer opined that the child's failure in other classes was not directly attributable to her learning deficits, but to her failure to avail herself of additional assistance and counseling which respondent had offered to her at the Stuyvesant High School. The hearing officer also held that petitioners were not entitled to receive reimbursement for the tuition which they paid for the child's enrollment in the Landmark School during the 1993-94 school year.

        With regard to petitioners' claim under Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the hearing officer found that the child was a "handicapped person" as that term is defined in the statute and its implementing regulations, and that she could have received appropriate modifications and accommodations from respondent during the 1993-94 school year in the Stuyvesant High School if petitioners had not removed the child from school. She directed respondent to prepare a plan for such modifications and accommodations during the 1994-95 school year.

        Petitioners challenge the hearing officer's holding that their child was not a child with a disability for purposes of the Individuals with Disabilities Education Act (20 USC 1400 et seq.), or its State counterpart, Article 89 of the Education Law. Respondent asserts that the hearing officer's decision upholding the CSE's recommendation is supported by the record. Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that the child not be classified (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36). I must find that respondent has not met its burden of proof because its CSE did not comply with the applicable Federal and State statutes and regulations in evaluating the child and having a multidisciplinary team make the recommendation.

        There is no evidence in the record before me that the CSE conducted an observation of the child. Both Federal and State regulations require that a child who is suspected of having a learning disability must be observed in his or her regular education class (34 CFR 300.542 [a]; 8 NYCRR 200.4 [b][viii]). In the event that the child is not in school, he or she must be observed in an environment which is appropriate for a child of that age (34 CFR 300.542 [b]). At the time of this child's referral to respondent's CSE in the Fall of 1993, she was attending the Landmark School. However, the child's enrollment in a private school did not relieve the CSE of its obligation to conduct an observation (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Disability, Appeal No. 93-1). The CSE's failure to conduct an observation requires me to annul the hearing officer's decision and the CSE's recommendation (Application of a Child with a Disability, Appeal No. 93-1).

        Federal regulation (34 CFR 300.346 [a][2]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be part of the multidisciplinary team, i.e., CSE, which determines whether that child has an educational disability. The recommendation which is at issue in this proceeding was made at a meeting of the CSE which was held on November 15, 1993. The written record of that CSE meeting reveals that the CSE consisted of a school psychologist, a school social worker, an educational evaluator and a parent member. Although Federal regulation allows the local educational agency, i.e., the school district, to designate a teacher to participate in the CSE meeting as a child's teacher when the child is not in school (34 CFR 300.344 [note c]), there is no evidence that respondent designated any teacher for that purpose. If it had chosen an educational evaluator to be the child's teacher, respondent was obligated to indicate in the record the nature of the evaluator's teaching license or certificate (Application of a Child with a Handicapping Condition, Appeal No. 92-31), but it did not do so. Moreover, even if the evaluator had been designated to be the child's teacher at the CSE meeting, the CSE would then have lacked an individual, other than the child's teacher, who was qualified to provide or supervise the provision of special education, as required by 34 CFR 300.344 (a)(1) and Section 4402 (1)(b)(1) of the Education Law. Respondent's failure to have a properly constituted CSE requires that the CSE's recommendation be annulled (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 92-9).

        I must also find that the CSE's recommendation did not comply with the requirement of Federal and State regulations that the CSE must prepare a written report which explains the basis for its determination that the child did not have a learning disability (34 CFR 300.543 [b]; 8 NYCRR 200.4 [c][1]). Although the CSE made its recommendation in an individualized education program as required by State regulation, I find that its statement that the child's "academic and psychosocial levels do not warrant a handicapping label and special education services" is too conclusory and inadequate to comply with the Federal and State regulatory requirement of an explanation of its determination, because it would not provide meaningful information for a school administrator to determine what, if any, educationally related support services would be appropriate for the child (8 NYCRR 200.4 [c][1][i]).

        This matter must be remanded to the CSE, notwithstanding the fact that the 1993-94 school year has ended and that the record is already in excess of 1200 pages. Petitioner's request for an order finding that the child was, and continues to be, eligible for services under the Individuals with Disabilities Education Act must be denied, because such order would have to be premised upon a finding that the student is a child with a disability under the Act. However, no such finding can be made without the observation which Federal and State regulations require.

        The requirement for an observation is not a mere technicality. An educator who testified on behalf of petitioners at the hearing asserted that she would not determine whether a child was learning disabled without having observed the child in the classroom to ascertain whether the child could do what the child's teacher required. Similarly, the private psychologist also testified that an observation would be valuable.

        The record is replete with evaluative data, including charts designed to show the child's relative strengths and weaknesses in performing various tasks. However, such clinical data is not dispositive of the issue of whether the child should be classified as learning disabled. Petitioner and respondent need to explore whether there is a nexus between the clinical findings and the child's classroom performance. That "exploration" ought to include an assessment of the academic environment and the extent to which it interests, challenges, and rewards a child, who by all measures, is "bright". I cannot order but strongly recommend that the child be a partner in this "exploration". Given her age, her native intelligence, and the stake she has in this matter, such participation as a partner, not a mere subject, seems in order.

        Federal regulation defines a specific learning disability as:

" ... a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such condition as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia ... " (34 CFR 300.7 [a][10])

        However, every child who has an imperfect ability to think, speak, read, write, spell, or to do mathematical calculations because of a disorder in the child's psychological processes is not eligible to be classified as a child with a learning disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-36). A child may be classified as learning disabled under the applicable Federal regulation only if:

" (1) The child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in (a)(2) of this section, when provided with learning experiences appropriate for the child's age and ability levels; and

(2) The team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of the following areas -

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

(iv) Basic reading skill;

(v) Reading comprehension;

(vi) Mathematics calculation; or

(vii) Mathematics reasoning. " (34 CFR 300.541 [a])

        In determining whether a severe discrepancy between the child's achievement and intellectual ability exists, the CSE must consider the child's academic performance in detail. It is not sufficient for the CSE to merely rely upon the fact that the child has progressed through the grades at the normal rate (Blazejwski v. Bd. of Ed. Allegany CSD, 560 F. Supp. 701 [W.D.N.Y., 1983]). However, the CSE may certainly consider the fact that the Stuyvesant High School which the child attended in the 1992-93 school year and is attending during the current school year is a highly competitive specialized high school. The CSE must ascertain whether the child has failed to acquire certain skills, or whether she has failed to apply the skills she has to the curriculum. When it analyzes the child's achievement, the CSE must consider not only the child's grades, but the comments of her teachers relative to the way in which those grades were achieved. The CSE should also consider the extent to which the child has developed compensatory techniques to overcome whatever learning deficits she may have. It must also consider what, if any, attempts have been made to remediate the child's performance, using supplementary aids or support services (8 NYCRR 200.4 [a][2][ii]).

        Petitioners assert that they should be reimbursed by respondent for the cost of the child's tuition at the Landmark School during the 1992-93 school year because respondent denied the child the free appropriate public education which she should have received under the Individuals with Disabilities Education Act and Article 89 of the Education Law. In the alternative, they assert that they should receive tuition reimbursement because respondent allegedly violated the child's rights under Section 504 of the Rehabilitation Act of 1973 by failing to make accommodations for the child. Tuition reimbursement may be an appropriate remedy for violations of the Individuals with Disabilities Education Act under certain conditions (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]), or for violations of Section 504 of the Rehabilitation Act of 1973 (Gregg B. v. Bd. of Ed. Lawrence Sch. Dist., 535 F. Supp. 1333 [E.D.N.Y., 1982]). As noted above, petitioners have not established that their daughter is a child with a disability under the Individuals with Disabilities Education Act. Therefore, they cannot rely upon that statute to provide them with tuition reimbursement.

        The hearing officer's decision that the child is a "handicapped person" under Section 504 is unchallenged by either party. Under Section 504, a board of education must provide each handicapped student with " ... regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met ... " (34 CFR 104.33 [b][1]). The record reveals that the possibility of providing the child with modifications or accommodations in her regular education program for purposes of complying with Section 504 was initially discussed by the child's mother and her advocate with the child's guidance counselor and respondent's attorney in May, 1993. Those modifications or accommodations were sought for the remainder of the 1992-93 school year. Some of the requested modifications or accommodations were obtained. Thereafter, the child was unilaterally enrolled by petitioners in the Landmark School, and the parties dealt with each other through the CSE process under the Individuals with Disabilities Education Act. There is no evidence that accommodations or modifications were sought, or would not have been provided, under Section 504. Therefore, I must sustain that portion of the hearing officer's decision which denied petitioners' request for tuition reimbursement under Section 504, because there is no showing that the child's rights under Section 504 were violated during the 1993-94 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it upheld the recommendation of respondent's CSE, is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall conduct an observation of the child in class consistent with the terms of this decision, and shall make its recommendation regarding her appropriate classification, if any.