96-057

        Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioner's daughter not be identified as a child with a disability for purposes of receiving special education services. The hearing officer also denied petitioner's request for an order requiring respondent to reimburse her for the cost of her child's tuition at the private school in which she unilaterally enrolled the girl. The appeal must be sustained in part.

        Petitioner's daughter is fourteen years old. During the 1995-96 school year, the child attended the Stephen Gaynor School, a private school which is located in New York City. She was enrolled by her parents in the Stephen Gaynor School in September, 1994, and had remained in that school until at least the time of the hearing in this proceeding. Petitioner's daughter has never been identified by the CSE as a child with a disability.

        The child reportedly attended a preschool program, before she was enrolled by her parents in the Bank Street School for Children in New York City. There is very little information about her education in that school in the record which is before me. In May, 1993, as she was completing the fifth grade, petitioner's daughter was evaluated by a school psychologist who was associated with the Bank Street College. The school psychologist revealed in her report that petitioner's daughter had previously received language therapy, but was no longer receiving such therapy. She reported that the child had achieved a verbal IQ score of 113, a performance IQ score of 94, and a full scale IQ score of 103. The child's lowest score was achieved in the object assembly test, which was in the below average range. Her score on the similarities subtest was in the exceptional range, while all of her other scores, except object assembly, were in the average range. The school psychologist reported that the child had "confusion in both visual and auditory processing", and that her language skills were unevenly developed. Academically, the child was reported to be at the sixth grade level for reading words, the fourth grade level for spelling, and at the end of the third grade for mathematical computation. On another reading test, the child achieved a grade equivalent score of 5.2 in reading decoding. The school psychologist reported that the child's handwriting was poor, and that she exhibited a lack of organization in her writing. She opined that the child was learning disabled in various areas of language, and that the child was highly anxious and impulsive because of her insecurity and inability to perform certain tasks in the classroom. The school psychologist recommended that an "educational therapist" work with the child.

        By letter dated March 1, 1994, petitioner referred her daughter, who was then in the sixth grade of the Bank Street School for Children, to the CSE of Community School District No. 3 to recommend an educational program for the 1994-95 school year. However, she reportedly objected to the fact that the CSE chose to perform its own evaluation of the child, rather than rely upon the private psychological evaluation which had been performed in May, 1993. In any event, petitioner withdrew her referral of the child, on or about June 2, 1994. As noted above, the child was unilaterally enrolled by her parents in the Stephen Gaynor School for the 1994-95 school year. She remained in that school for the 1995-96 school year, again at her parents' expense.

        In a letter dated January 5, 1996, petitioner again referred her daughter to the CSE of Community School District No. 3. She formally consented to having the child evaluated on January 30, 1996. Petitioner was interviewed on that date by a school social worker, who reported that petitioner had indicated that her daughter displayed age-appropriate behavior which coincided with normal developmental milestones. The child had reportedly begun to have difficulty keeping up with the curriculum in the first grade, and began to be tutored while in the second grade. According to petitioner, the child did not do well academically in either the third or the fourth grade in the Bank Street School for Children. However, the child remained in that school through the sixth grade. The child was enrolled by her parents in the Stephen Gaynor School for the 1994-95 school year.

        On February 8, 1996, the child was evaluated by a CSE school psychologist, who described the girl as a verbal, intelligent adolescent who looked and acted like her chronological age of thirteen years. Petitioner's daughter achieved a verbal IQ score of 110, a performance IQ score of 103, and a full scale IQ score of 107. Although she exhibited perceptual organizational skills which were generally in the above average range, the girl scored in the low average range on one subtest requiring visual recognition skills. On the Bender Gestalt Test, which measures perceptual motor integration skills, the child reportedly exhibited a deficit. Her freedom from distractibility and her processing speed were reported to be consistent with her cognitive skills, i.e., they were in the average range. The school psychologist reported that the child had some anxiety which inhibited her expressive language skills, but not to the extent which would warrant either waiving test limits for her, or providing her with special education.

        In an educational evaluation which was performed on February 10, 1996, the child achieved grade equivalent scores of 10.7 in letter-word identification, 16.9 in passage comprehension, 7.5 in spelling, 8.9 in mathematical computation and 9.4 in applied [mathematics] problems. Her writing skills were reported to be well above grade level. She also achieved grade equivalent scores of 8.5 in social studies, and 6.9 in science. The evaluator reported that the child's fund of information and knowledge of concepts in science appeared to be slightly weak. However, the child did not evidence any significant academic deficiency.

        A physical therapist, who evaluated the child on February 14, 1996, reported that the child was able to perform all of the basic physical skills without difficulty, and that she did not need physical therapy. Respondent's CSE also had a report of an occupational therapist, who had evaluated the child in March, 1994, and had concluded that she did not require occupational therapy.

        On March 28, 1996, petitioner met with the CSE, which consisted of a school psychologist, an educational evaluator, a parent member, and a "district representative". At the hearing in this proceeding, the CSE's designee testified that the district representative was a school social worker. The designee was questioned about the qualifications of the parent member of the CSE. In a post-hearing memorandum to the hearing officer, the CSE's designee acknowledged that the individual who had attended the March 28, 1996 CSE meeting lacked the qualifications to serve as a parent member (see Section 4402 [1][b][1] of the Education Law). No representative of the child's private school participated, in person or by telephone, in the CSE meeting. The CSE's designee was unable to testify at the hearing whether a representative of the Stephen Gaynor School had been invited to participate in the CSE meeting. He acknowledged that the CSE had failed to observe the child in the Stephen Gaynor School (cf. 8 NYCRR 200.4 [b][4][viii]), and that it had not obtained a written report of the child's academic performance from the private school.

        The CSE's designee testified that after reviewing the results of the child's evaluations, the CSE concluded that she was not eligible for classification as a child with a disability under Federal and State regulatory criteria. He specifically noted that the child did not have a severe discrepancy between her ability and her academic achievement. The CSE recommended that the child be placed in respondent's regular education program. On or about April 12, 1996, the child was offered a placement in the regular education program in P. 166.

        Petitioner requested that an impartial hearing be held to review the CSE's recommendation. The hearing was scheduled to take place on May 13, 1996, but was adjourned at the request of the parties until May 30, 1996. On that date, the hearing was held, and completed. Petitioner, through her attorney, argued that the CSE had not obtained adequate information to render an informed decision about the child's educational needs, because the CSE had not observed the child in the Stephen Gaynor School, and it had not obtained any information about her from the private school. Petitioner further argued that the child had special education needs, which had been addressed by the Stephen Gaynor School. She asked that respondent be required to reimburse her and her husband for their expenditures for the child's tuition at the private school. The CSE's designee contended that the child's evaluations, as well as her report card for the 1995-96 school year in the private school, supported the CSE's recommendation that she not be classified as a child with a disability. He argued that there was no authority under Federal or State law for an order requiring respondent to pay for the child's tuition in the private school.

        In a decision which was rendered on July 25, 1996, the hearing officer found that although the child exhibited some learning difficulties, she nevertheless was performing on or near her actual grade level. The hearing officer further found that there was no evidence of a significant discrepancy between the child's actual and expected academic achievement which would support her classification as a child with a learning disability (34 CFR 300.7 [a] [10]; 8 NYCRR 200.1 [mm] [6]). She acknowledged that a classroom observation of the child might have been useful, but held that it was not a required component of the child's evaluation. The hearing officer did not address the issue of the CSE's composition. Having found that the CSE's recommendation was appropriate, the hearing officer denied the parents' request for tuition reimbursement.

        Petitioner challenges the hearing officer's decision on the ground that the hearing officer ignored the fact that the CSE was not properly constituted, and that it failed to observe the child in her classroom. She contends that the CSE's recommendation that the child be educated in regular education classes was incorrectly based upon inadequate information about the child. Petitioner asserts that her daughter has a learning disability, and a significant language problem. She requests that the hearing officer's decision be annulled, and that she receive the relief of tuition reimbursement.

        Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that petitioner's daughter not be classified as a child with a disability (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 of its failure to have a validly constituted CSE, and its failure to observe the child in her classroom.

        As respondent well knows, the recommendation of a CSE which did not include each of the required members is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, Appeal No. 91-41, Application of a Child with a Handicapping Condition, Appeal No. 91-41). Respondent has not addressed the issue of the purported parent member's ineligibility to serve as a parent member of the CSE. I find that the CSE was invalidly composed because of the lack of a qualified parent member.

        Even if respondent had satisfactorily addressed that issue, I would nevertheless be constrained to find that the CSE was not validly composed. Federal regulation and State statute require that a child's teacher attend the CSE meeting (34 CFR 300.346 [a] [2]; Section 4402 [1] [b] [1] of the Education Law). Since the child was not enrolled in respondent's schools, respondent was free to designate one of its teachers to serve as the child's teacher member of the CSE. However, respondent was required to show that the educational evaluator member of the CSE was qualified to teach the child in the area of her suspected disability, in order for the evaluator to serve as the child's teacher on the CSE. In addition to the child's teacher, a CSE must include a school district representative who is qualified to provide or supervise the provision of special education (34 CFR 300.346 [a] [1]). The district representative on the CSE which met on March 28, 1996 was a school social worker. Respondent has not offered any proof that the school social worker could lawfully provide or supervise the provision of special education. This omission affords an additional basis for finding that the CSE's recommendation was a nullity (Application of a Child with a Disability, Appeal No. 95-65).

        I further find that the hearing officer erred by finding that there was no legal requirement that this child be observed in her classroom (8 NYCRR 200.4 [b] [4] [viii]). A failure to observe a child as part of a child's initial evaluation also provides a basis for annulling the CSE's recommendation (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-31). There is very little information in the record about how the child functions in the classroom, except for a progress report from the Stephen Gaynor School which was not part of the materials which the CSE reviewed. I note that respondent's educational evaluator conceded at the hearing that her evaluation of petitioner's daughter would have been more complete if she had been provided with information about the child's educational performance in school.

        Having found that respondent did not meet its burden of proof with respect to the appropriateness of the CSE's recommendation, I must next determine what is the appropriate remedy. Petitioner requests that respondent be required to reimburse her for the cost of her daughter's tuition in the Stephen Gaynor School. The remedy of tuition reimbursement is available for a child who is entitled to receive a free appropriate public education pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq). In order for parents to obtain tuition reimbursement, a board of education must have failed to offer the child appropriate special education services, the child's parents must have obtained appropriate services for the child elsewhere, and the parents' claim must be supported by equitable considerations (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). However, the threshold issue in this proceeding is whether petitioner's daughter is a child with a disability for purposes of the Individuals with Disabilities Education Act, or its State counterpart, Article 89 of the Education Law. Although respondent failed to meet its burden of proof in this proceeding, it does not follow that petitioner's daughter necessarily meets the statutory and regulatory criteria for classification as a child with a disability.

        I have carefully considered the evaluation reports, the testimony of the various witnesses, including that of the Assistant Director of the Stephen Gaynor School, and the child's progress report for the 1995-96 school year. The Assistant Director testified that the child had learning disabilities in her reading, spelling, and mathematics skills, and that the child often went off on tangents when questioned about the written information which she had read. She also described the child as "enormously vulnerable to intervention", and as a "bright young woman with residual language and dyslexic issues". Although the grade equivalent scores for the child's reading, spelling and mathematics skills which appeared on the private school's progress report for the 1995-96 school year were lower than those which were reported by respondent's educational evaluator when she tested the child in February, 1996, the lower scores on the progress report were not significantly below grade level for the child. Upon the record which is before me, I find that there is insufficient information to conclude that the child required special education and related services to benefit from instruction, i.e., that she was a child with a disability in the 1995-96 school year (34 CFR 300.7 [a][1]); 8 NYCRR 200.1 [mm]). Accordingly, petitioner's request for tuition reimbursement must be denied because it has not been established that the petitioner's daughter is a child with a disability (Roane County School System v. Ned A., 22 IDELR 574, [U.S. D.C. E.D. Tenn., 1995]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled.