97-055

         Petitioner appeals from the decision of an impartial hearing officer which denied petitioner’s request that respondent be ordered to reimburse petitioner for the cost of his son’s tuition at the York Preparatory School (York) for the 1996-97 school year. The appeal must be sustained in part.

        At the time of the hearing, petitioner's son was 14 years old and in the seventh grade. He attended the Grace Church School (Grace), from kindergarten through the end of his first semester of the sixth grade. While at Grace, the child reportedly had academic difficulties. During the 1994-95 school year, the child’s fifth grade year, he received B’s in spelling and history, a D+ in mathematics, and C’s in the remaining academic subjects.

        In the spring of 1995 during the child’s fifth grade year, he was referred for a neuropsychological evaluation because of attentional problems and poor academic performance. The neuropsychological report indicated that the child had repeated kindergarten because of social interaction difficulties. It was also reported that the child had been initially evaluated when he was nine, and had achieved a verbal IQ score of 103, a performance IQ score of 106, and a full scale IQ score of 105 on the WISC-R. It was reported that the child had an above average fund of general information, and that his relative weaknesses included arithmetic skills and abstract thinking. The neuropsychological report also indicated that the child had been referred for a reevalaution in June, 1994 when he was eleven years old, to determine factors that "underlie his apparent distractability, dysforia, and anxiety." During that 1994 evaluation, the child achieved a verbal IQ score of 91, a performance IQ score of 76, and a full scale IQ score of 83 on the WISC-III. The testing revealed a decrease in the child’s intellectual performance, and reportedly, the child had difficulty with visual processing and grapho-motor skills, and had poor conceptual integration. The 1994 assessment described the child as socially immature and anxious, with inadequate coping mechanisms.

        A number of tests were administered to the child as part of the spring, 1995 neuropsychological evaluation. On the WISC-III, the child achieved a verbal IQ score of 91, a performance IQ score of 78, and a full scale IQ score of 83. The evaluators indicated that the child’s test results showed a low-average overall level of intelligence, and noted that there was a marked variability in the child’s performance. They reported that the child’s strengths included verbal skills and visual-motor integration, but that he performed poorly on tasks of complex visual organization and abstract visual reasoning. Additionally, it was noted that although the child’s performance in mathematics was comparable to his peers, his reliance on visual strategies suggested weakness in basic mathematical operations. With respect to the child’s performance on measures of attention and concentration, the evaluators reported that the child had the capacity to stay on task and apply sustained effort. Although the child displayed some evidence of impulsivity and internal distractability, the evaluators noted that the child’s test results did not indicate a diagnosis of Attention Deficit-Hyperactivity Disorder. The evaluators opined that anxiety and underlying emotional concerns were the more likely sources of the child’s distraction. They concluded that the child did not demonstrate the severe impairment characteristic of a specific reading or arithmetic disability, but cautioned that as academic demands increased over time, the child’s level of frustration and problems achieving academic success could also increase.

        During the 1996-97 school year, the child’s sixth grade year, he reportedly became increasingly aware of his academic weaknesses and was unhappy. Staff at Grace suggested that petitioner explore another school for his son, and in January, 1996, petitioner enrolled his son in York. The child was referred to respondent’s CSE for an evaluation by his mother in July, 1996 because she believed that her son had special education needs. She expressed concern about his academic skills in mathematics and science, his concentration and his attention span.

        The CSE initiated an evaluation which consisted of a social history, a psychological evaluation, an educational evaluation, a classroom observation and a vocational assessment. There is no record that a physical examination was conducted as part of the CSE’s evaluation (cf. 8 NYCRR 200.4 [b][1][i]). The psychological evaluation was conducted on August 27, 1996. On the WISC-III, the child achieved a verbal IQ score of 102, a performance IQ score of 100 and a full scale IQ score of 101, which placed him in the average range of intellectual functioning. The evaluator reported that the child scored in the low-average range in the freedom from distractibility subtest. Despite the child's difficulties in attention and concentration, the evaluator observed that he appeared careful and cautious rather than impulsive.

        In an educational evaluation completed on August 27, 1996, the child achieved a composite grade equivalent score of 10.3 in reading placing him in the 86th percentile, and a composite grade equivalent score of 6.6 in mathematics placing him in the 37th percentile on the Kaufman Test of Educational Achievement. The evaluator reported that the child had good writing skills. The child reportedly had achieved grades in the 80’s in most of the major subjects during the second semester of his sixth grade year at York.

        In a social history dated August 27, 1996 based on an interview with the child’s mother, it was reported that the child was receiving psychotherapy from a private psychiatrist, and that he was taking Dexedrine on school days only.

        The CSE conducted its review on September 25, 1996, when it found that the child did not show any academic delays, and that he demonstrated the capacity to learn in a regular education setting. Accordingly, the CSE recommended that the child should not be classified as a child with a disability. By letter dated October 7, 1996 to respondent’s impartial hearing office, petitioner’s attorney requested an impartial hearing.

        The record shows that there was at least one postponement of the hearing. The hearing was held on May 12, 1997. The issue before the hearing officer was petitioner’s request for tuition reimbursement for the private school placement of his son for the 1996-97 school year. In a decision dated June 30, 1997, the hearing officer noted that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        The board of education bears the burden of demonstrating 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 with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        The hearing officer held that respondent was unable to demonstrate that its CSE’s recommendation was appropriate because it failed to document that a medical evaluation of the child was conducted. Accordingly, the hearing officer found that respondent was unable to meet its burden of demonstrating that the recommended program was reasonably calculated to allow the child to receive an educational benefit. However, the hearing officer noted that respondent’s failure to document a medical examination did not mean that the child should be classified as a child with a disability. She noted that the child's educational achievement was commensurate with his cognitive ability (cf. 8 NYCRR 200.1 [mm] [6]), and that he had not been diagnosed as having an attention deficit disorder. Recognizing that the child would have to be found to be eligible to receive special education services, i.e., meet the criteria for classification as a child with a disability, in order for petitioner to obtain an award of tuition reimbursement pursuant to the Burlingtondecision, the hearing officer found that petitioner had not prevailed with respect to the second Burlington criterion.

        With respect to the third Burlington criterion, i.e. whether equitable considerations support petitioner’s claim for reimbursement, the hearing officer found that petitioner had delayed too long in waiting until March, 1997 to request a hearing. Having found that petitioner did not meet his burden with respect to the second and third Burlington criteria, the hearing officer denied petitioner’s request for tuition reimbursement.

        The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (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; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). Petitioner claims that his child is learning disabled. A learning disabled child is defined in State regulation as:

"A student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability" (8 NYCRR 200.1 [mm][6]).

        The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). The CSE may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of visual, hearing, or motor impairment; mental retardation; emotional disturbance; or environmental, cultural or economic disadvantage (34 CFR 300.541[b]).

        At the hearing in this proceeding, the chairperson of respondent’s CSE testified that that the child’s file did not contain a record of a physical examination. Federal regulation requires that a multidisciplinary team, i.e., CSE, must prepare a written report of the results of the evaluation which must include whether the child has a specific learning disability and the educationally relevant medical findings, if any (34 CFR 300.543[b][5]). State regulation requires that an initial evaluation include a physical examination of the child (8 NYCRR 200.4 [b][1][i]). Absent a report of a physical examination, the CSE could not comply with the regulatory requirements. Although there does not appear to be any evidence before me demonstrating a discrepancy to the extent required by Federal and State regulations, between the child’s expected and actual achievement, without a physical examination, I must find, as did the hearing officer, that respondent has not met its burden of establishing the appropriateness of its CSE’s recommendation that the child not be classified as a child with a disability (Application of a Child with a Disability, Appeal No. 94-15; Application of a Child with a Disability, Appeal No. 94-16).

        Before a request for tuition reimbursement under the Individuals With Disabilities Education Act (IDEA) can be entertained, it must be determined whether the child is a "child with a disability" as defined by IDEA. Without a physical examination of the child, that determination could not have been made by either respondent’s CSE or the hearing officer. Similarly, I cannot determine upon the record which is before me whether the child meets the criteria for classification as a child with a disability under IDEA, or Article 89 of the Education Law. That threshold issue must be resolved before addressing the appropriateness of the educational services offered by respondent and those which petitioner obtained for his son at York. I find that the hearing officer should have remanded the matter back to the CSE to obtain a physical examination of the child and to make a new recommendation. I will now remand the matter to the CSE to do precisely that. If petitioner disagrees with the CSE's recommendation pursuant to this remand, he may have that recommendation reviewed by a new impartial hearing officer.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that within 20 days after the date of this decision the CSE shall either obtain the results of any physical examination which was performed at the time of, or soon after the CSE's review of the child in September, 1996, or have a physical examination of the child immediately performed. The CSE shall immediately thereafter conduct a review, and make a recommendation with respect to the 1996-97 school year, which petitioner may have reviewed in a new due process proceeding.