Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Jericho Union Free School District
Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that the individualized education program (IEP) developed by respondent’s Committee on Special Education (CSE) was appropriate for petitioner's son and which denied petitioner’s request for an order requiring respondent to pay for the cost of his son’s tuition at The Cedars Academy, a private, residential school in Bridgeville, Delaware, for the 1996-97 school year. The appeal must be dismissed.
Preliminarily, I will address the procedural issues raised in this appeal. Petitioner asserts that the hearing officer failed to render a decision within 45 days of his request for a hearing. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512[a]; 8 NYCRR 200.5[c]). Petitioner’s request for a hearing was dated November 2, 1996. There is no indication in the record when respondent received the request. The record shows that respondent appointed a hearing officer at its November 26, 1996 meeting, and so advised the hearing officer by letter dated December 3, 1996. By letter dated December 9, 1996, that hearing officer advised respondent that he was withdrawing from serving as the hearing officer, reportedly at the request of petitioner. By letter dated December 9, 1996, respondent advised Samuel Cohen, Ed.D., that he was appointed to serve as hearing officer in this matter. The record shows that the hearing began on December 20, 1996 at which time the 45-day rule was discussed. Although petitioner did not waive the 45-day rule, the record is clear that the parties agreed to commence the hearing and understood that the hearing itself could not be completed within the required time frame. The hearing lasted fifteen days and took place over more seven months. All hearing dates were arranged at the mutual convenience of the parties. I find that under the circumstances, it was impossible for the hearing officer to comply with the 45-day rule.
Petitioner also asserts that the hearing officer should have been an attorney. Neither Federal nor State law require that a hearing officer be an attorney. Pursuant to the Regulations of the Commissioner of Education, in order to be certified as a hearing officer, an individual must successfully complete a training program which provides information regarding applicable laws and regulations relating to the education and needs of students with disabilities (8 NYCRR 200.1 [s]). An individual who has been certified by the Commissioner of Education as a hearing officer eligible to conduct hearings has received the required training and is permitted by law to conduct such hearings regardless of whether that individual is an attorney.
Additionally, petitioner challenges the hearing officer’s denial of petitioner’s request to call the superintendent of schools, the president of the board of education and the school physician as witnesses at the hearing. The hearing officer ruled that the testimony that petitioner sought to elicit from those witnesses was beyond the scope of the hearing in that it was not relevant to the placement, evaluation or classification of the child. Federal and State regulations afford each party to a hearing the right to present evidence and testimony (34 CFR 300.508[a]; 8 NYCRR 200.5[c]). A party’s right to present evidence is not without limit. It has previously been held that a hearing officer has the right to limit the introduction of evidence, including testimony, which is either irrelevant or redundant (Application of a Child with a Handicapping Condition, Appeal No. 92-18). The hearing officer may ask the parent to make an offer of proof prior to issuing subpoenas, in order to determine the relevancy of the proposed testimony (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 290). I find that the hearing officer acted well within his power to insist upon some demonstration of relevance to the proposed testimony.
Petitioner also challenges the qualifications of the members of respondent’s CSE, and the failure of respondent to have the child’s neurologist in attendance at the meeting during which the IEP for the 1996-97 school year was developed. Petitioner believed that the CSE members were not sufficiently familiar with his son’s medical condition, and therefore, were not in a position to recommend an appropriate placement. There is no requirement that the individual members of the CSE be familiar with the particular medical condition of the child. Nor is there a requirement that the child’s private physicians attend the CSE meetings. Federal regulation and State statute set forth the requirements regarding the composition of CSE’s (34 CFR 300.346[a]; Section 4402[b]. Such committees shall be composed of at least the child’s teacher, a school psychologist, a representative to the school district qualified to provide or administer or supervise special education, and a parent of a handicapped child residing in the school district. Although the school physician also is a required member of the CSE, he or she need not attend a CSE meeting unless specifically requested by a child's parents. The chairman of the CSE, a psychologist, testified that in addition to himself, the child’s tutor, a special education teacher, the assistant principal, a parent member and the child’s parents were in attendance at the July 15, 1996 CSE meeting. I note that the school physician was not present at the CSE meeting. The record shows that petitioner did request the presence of the school physician. However, when petitioner was advised by respondent that the school physician was unavailable on the scheduled meeting date, petitioner agreed to proceed without him. Accordingly, I find that the CSE was properly composed.
A pediatric neurologist who examined the boy when he was ten years old reported that the child was diagnosed as having neurofibromatosis soon after birth, and had been followed by a physician at the Child Development Center at North Shore for the first three years of his life. Additionally, the pediatric neurologist noted that at the age of three, the child began receiving speech therapy for treatment of a lisp and poor articulation which continued for three years. The child reportedly was diagnosed as having nodes on his vocal cords, and voice modulation exercises were recommended. Further, the pediatric neurologist noted that at the time of the evaluation, the child was receiving speech therapy in school, and had been receiving adaptive gym because of poor gross motor coordination until the fourth grade.
The pediatric neurologist confirmed the diagnosis of neurofibromatosis, and also reported that the child exhibited emotional difficulties which were first noted by camp counselors in the summer of 1991 and confirmed by the child’s parents. The child had been portrayed as a loner who had difficulty initiating and maintaining contact with other children. He also was described as impulsive, temperamental, and prone to depression. Additionally, he was reported to have a fear of elevators and heights, and to have a few compulsive behaviors. At the time of the evaluation, the child was under psychiatric care.
The child was referred to respondent’s CSE in October, 1993, when he was eleven years old and in the sixth grade. He was referred because of low academic functioning, especially in math, and speech difficulties. The child was evaluated by a school psychologist on various dates in October and November, 1993. The child achieved a verbal IQ score of 107, a performance IQ score of 86 and a full scale IQ score of 97 on the WISC-III, placing him in the average range of intellectual ability. The school psychologist reported that verbal comprehension was an area of strength for the child, while perceptual organization was an area of weakness. Additionally, on the Wide Range Achievement Test- 3rd Revision, the child’s test scores indicated that his word recognition and spelling skills were well developed, while his arithmetic calculations skills were slightly below grade level. On the Bender Gestalt Test of Visual-Motor Integration, the child displayed poor visual organization and poor planning abilities. The school psychologist reported that the child was having difficulties adjusting to the demands and stresses of his environment. He indicated that the child was tense, and felt pressured, overwhelmed and victimized by his peers. He also noted that the child also displayed signs of emotional trauma as a result of an automobile accident in which his parents were involved the previous year. Additionally, the school psychologist noted signs of anxiety and speech articulation difficulties during the testing. The school psychologist recommended that the child be given extra time on written tests and to complete written classroom assignments. Additionally, he recommended remediation of the child's math deficits. He also recommended that the child be encouraged to participate in peer socialization activities and in-school group counseling. Further, he recommended a conference with the child’s parents to discuss strategies for addressing their son's emotional issues.
On November 3, 1993, the child was administered the Detroit Tests of Learning Aptitude to assess his overall learning aptitude. It was reported that most of the child’s scores fell within the average range. Weaknesses were noted in the areas of visual memory, nonverbal reasoning, perception, fine-motor control, and eye-hand coordination which is indicative of difficulties with tasks involving complex motor abilities, sight perception and spatial orientation. It was noted that during the testing the child exhibited anxiety, low tolerance, distractibility, and impulsivity.
A speech/language evaluation was completed on November 4, 1993. The evaluator noted that the child exhibited age appropriate receptive and expressive language functioning, but that his vocal quality was poor with marked tension in the neck, mandible, and vocal tract. The speech language therapist recommended that the child be evaluated by an otolaryngologist to determine the presence of a vocal tract pathology such as vocal nodules. Additionally, she recommended articulation therapy to facilitate appropriate production of the "r" sound.
An educational evaluation was completed on November 5, 1993. The evaluator reported that the child’s total reading score indicated that he was reading at or above grade level, but that he was functioning below average in mathematics. The evaluator warned that as the difficulty level of the material presented increased, the child's deficit would become more significant.
In a social and developmental history completed on November 16, 1993 based on an interview with the child’s parents, it was reported that the child was diagnosed with neurofibromotosis and required frequent monitoring using MRI’s. The child’s parents indicated that in addition to having medical and emotional difficulties, their son was immature, and had difficulties in math and with organizational skills.
The CSE met on December 9, 1993. Based on a review of the above information, the CSE classified the child as other health impaired. The boy has remained classified as other health impaired, and the issue of his classification was not raised in the petition. The CSE recommended continued placement in the regular sixth grade class, speech services twice per week for 40 minute sessions, and tutoring support five times per week for 40 minutes sessions, each with a maximum student to teacher ratio of 3:1. Testing modifications of extended time, and the use of a calculator and word processor were also recommended.
The child's IEP indicated that the child had some problems relating to peers, that he needed additional assistance in order to function in an educational setting, and that he had moderate academic deficits which adversely affected his educational performance. The IEP included a goal to improve study skills, mathematics goals to improve measurement skills and operation skills with whole numbers, speech/language goals to produce appropriate voice quality and articulation skills, a perceptual development goal to improve organizational and study skills, and a behavior goal to demonstrate appropriate social skills within the academic environment.
The annual review for the 1993-94 school year indicated that the child met in part most of the goals on his IEP, however, his achievement of his behavior goal was rated as "erratic". The annual report included comments on the child’s progress. It was noted that the child evidenced growth socially and emotionally, that he made some progress academically, but that lack of organizational and study skills interfered with such progress. The child’s report card revealed that for the 1993-94 school year he received passing grades in all subjects for his final grades.
The CSE met on May 12, 1994 to prepare the child’s IEP for the child’s seventh grade year in 1994-95. The CSE recommended the same placement as the previous school year with enhanced testing modifications. Math tutoring three times per week for 40 minute sessions was added as a related service, while speech services were dropped. The IEP description of the child’s present level of academic performance provided that the child was prone to distractibility and off-task behaviors. His management needs indicated that he required individualized, and/or small group settings for instruction in mathematics, and that he needed to become more self-reliant and less dependent on others. To address these needs an additional goal and an objective were included on the IEP.
The 1994-95 annual review indicated that the child either met, or met in part, most of the goals listed on his IEP. His progress towards achieving the perceptual development goal and the social goal related to demonstrating appropriate feelings, emotions and behavior was rated as "erratic". The comments noted that the child was successful, that he increased his ability to handle frustration, that he demonstrated growth both socially and emotionally, and that he was a participant on the cross country team. The child’s report card indicated that for the 1994-95 school year, he received passing grades in all subjects for his final grades.
The CSE met on June 22, 1995 to prepare the child’s IEP for the child’s eighth grade year in 1995-96. The CSE recommended the same placement as was recommended for the prior school years. Testing modifications and the related service of tutoring support remained unchanged from the previous school year, while math tutoring was reduced to two times per week. The child’s present level of social development indicated that he required teacher support and guidance, and was often frustrated by school related responsibilities. His management needs provided that he needed to assume greater responsibilities regarding school related tasks. To address these needs, additional objectives were added to the child's IEP.
The 1995-96 annual review indicated that the child either met, or met in part, most of the goals listed on his IEP. The child did not meet the goal to complete the eighth grade math curriculum and his achievement of the modified goal in math was rated as "erratic". The narrative comments included that the child’s attitude and appearance improved, and that he worked to meet class deadlines and generally worked to improve organizational skills. The child’s report card indicated that for the 1995-96 school year, he received passing grades in all subjects for his final grades.
At a CSE meeting on June 14, 1996, which petitioner was unable to attend, the child’s mother indicated that her family had concerns about the child’s continued placement at the Jericho Middle School because the child had a difficult eighth grade year. She indicated that The Cedars Academy was the more appropriate placement. The child had been placed in that school by his parents in June, 1996 for a summer program at the recommendation of the child's private psychiatrist. Due to the concerns expressed by the child's mother, the CSE meeting was rescheduled to gather additional information.
Both petitioner and his wife were in attendance at the rescheduled CSE meeting on June 26, 1996. Petitioner and his wife believed that there had been a marked deterioration in their son’s functioning in school and at home during the 1995-96 school year. At that meeting, the CSE considered a letter sent to the CSE chairperson from the child’s psychiatrist who had been treating the child for academic difficulties including inattentiveness, concentration difficulties and poor performance, and emotional difficulties including depression and difficulties relating to adults and peers since September 7, 1995. The psychiatrist reported that the child had not made significant progress academically or emotionally, and recommended a residential placement at The Cedars Academy. The child's psychiatrist listed Attention Deficit Disorder, Dysthymic Disorder and Neurofibromatosis as the child’s diagnoses. Based on the parent's concerns, it was decided that a more comprehensive plan and additional information were needed. Again, the meeting was rescheduled.
The CSE ultimately developed the child’s 1996-97 IEP at a meeting on July 15, 1997. The CSE’s review included the child’s scores on the California Achievement Tests administered in May, 1995. The child achieved a grade equivalent score of 5.4 in mathematics and 7.8 in reading. The CSE recommended placement at the Jericho High School with related services of group and individual counseling once per week, earth science support twice per week for 40 minute sessions, and, Learning Center support five times per week for 40 minute sessions. The Learning Center was described as a department that services students with special needs by providing them support in basic academic areas, with classroom assignments and in preparing for exams. Further, the child’s management needs described on the IEP included that he required a highly structured, task oriented approach to learning, and a structured approach to encourage organization and completion of independent work. Under academic needs, the IEP included that the child required continued reinforcement of previously taught materials. Petitioner requested an impartial hearing to review the CSE’s recommendation.
The hearing commenced on December 20, 1996 and continued for 15 days over the next several months concluding on June 3, 1997. The hearing officer rendered his decision on August 26, 1997. He found that the IEP and the recommended placement for the 1996-97 school year were appropriate. He also found that petitioner failed to prove that his unilateral placement of the child at The Cedars Academy was appropriate. Accordingly, the hearing officer found that petitioner was not entitled to tuition reimbursement.
Petitioner challenges the hearing officer’s decision on a number of grounds. He contends that the IEP is not valid because it failed to state the child’s functional levels; it failed to list clear objectives; it failed to specify strategies for adequately evaluating the child’s academic progress; and it did not include a goal for mathematics which was the child’s greatest weakness. He claims that the school failed to notice his son’s difficulties in the eighth grade, and that his son's eighth grade IEP should not have been relied on to prepare the ninth grade IEP. Petitioner also argues that mainstreaming was not appropriate for his son. Further, he claims that his son’s math tutoring was not properly provided because the math tutor was not certified in special education. Further, petitioner claims that the child’s grades were misleading and an unrealistic measure of the child’s academic performance. He also asserts that the child’s needs for occupational therapy and physical therapy were not addressed, that the child’s psychiatrist’s recommendation for placement was not properly regarded, and that the career assessment was not considered by the CSE. He also claims that his son is entitled to compensatory education. In addition to tuition reimbursement, petitioner claims that he should be reimbursed for the neurologic testing, and psychiatric and speech services he arranged for his son. Petitioner also claims that the IEPs for the child’s sixth, seventh and eighth grade years were inappropriate. However, I find that petitioner has not challenged those IEPs in a timely fashion. Accordingly, I will address only the 1996-97 IEP.
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 ). 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). 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]).
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 instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). With respect to the child’s 1996-97 IEP, petitioner asserts that it did not accurately reflect the child’s functional level. The record shows that the child had difficulties in math, that his organizational skills were weak, that he had problems relating to peers, and that he had emotional issues stemming from difficulties at home. The IEP listed the child’s IQ test scores and his test scores on the California Achievement Tests which indicated that the child was functioning approximately two years below grade level in math, and one year below grade level in reading. His IEP indicated that he was prone to distractibility and that he needed continued reinforcement of previously taught materials. These difficulties also were reflected in the present levels of performance section of the IEP under academic development and management needs. With respect to mathematics, the IEP indicated that the child required individualized and/or small group instruction. The child’s lack of organizational skills also was reflected in the IEP under management needs. Also, the child’s social difficulties were reflected under the IEP description of his social development. I find that the IEP accurately reflected the child’s tests results and level of functioning.
The boy's IEP included annual goals for reading, language arts, social studies, mathematics, science, perceptual development and social skills. Petitioner claims that the child’s IEP did not set forth clear objectives. As stated above, the IEP must establish short-term instructional objectives which support his annual goals and which are related to the child's educational deficits. With the exception of mathematics and science, the IEP included objectives for each of his annual goals. Although the IEP did not include objectives for the mathematics goal, the record shows that the CSE proposed to address the child's difficulties in mathematics through the regular education program. The child was scheduled to be placed in a pre-sequential mathematics class which was described as a small sized regular education class, designed to meet the needs of students who were not ready for ninth grade mathematics and who needed remediation with basic math skills. An IEP must include annual goals and short-term objectives for each area in which a child is to receive either direct or supplementary special education instruction. In this instance, the CSE did not recommend that the child receive any special education instruction in mathematics. Although the CSE's inclusion of an annual goal for mathematics on the child's IEP was confusing, I find that the CSE did not have to include objectives for mathematics, since it did not recommend that the boy receive special education for that subject.
The CSE also failed to include short-term objective to support the child's single goal of passing the Regents Competency Test in science. The child was to achieve that goal while taking a regular education earth science course with the support of the Learning Center. The child's schedule was arranged so that his Learning Center support would follow the earth science lab. The child's eighth grade science teacher testified that with the proper support, the child was capable of handling the work in earth science. The science teacher further testified that academically the child didn't have major difficulties, but that he was disorganized and had difficulties focusing. The IEP did contain a goal to address these difficulties. Under the perceptual development skills goal, the child was to improve organizational study skills. The objective for that goal included increasing on-task behavior and attention span. Nevertheless, I find that the CSE should have included objectives for the child's science goal. However, I further find that the CSE's failure to do so does not amount to a denial of a free appropriate public education to the boy.
I also find that the services which respondent's CSE recommended to address the boy's special education needs were appropriate. The CSE recommended Learning Center support five times per week to address the child's organization difficulties and need for reinforcement of previously taught material. The record shows that this strategy had been successful during the child's eighth grade year. A tutor that worked with the child in the Learning Center from March through June 1996 testified that the child learned material best through repetition. She testified that she used repetition when she worked with the child and that he had made progress. Having considered the testimony of the child's eighth grade mathematics teacher, I am persuaded that the regular education pre-sequential mathematics class which the CSE recommended would have been appropriate for the child.
Counseling services were also included on the IEP. The record shows that the child had significant emotional and social issues. It further shows that the child clearly benefited from his relationship with his guidance counselor in middle school. Though there were no formal counseling sessions, the child's guidance counselor testified that he saw the child on a regular basis in seventh grade, but by the end of the eighth grade, he saw the child only infrequently. He testified that the child had fewer difficulties in eighth grade. The child's guidance counselor also testified that he was concerned about the child's transition to high school. The coordinator of the Learning Center testified that counseling was a necessary component to a successful program. She stated that she was aware of the child's emotional needs and that the child's parents indicated that there was a need for counseling services. With regard to petitioner's claim that no services were provided to address the child's speech deficits, the record shows that respondent's speech/language therapist did not recommend speech therapy. Petitioner did not submit any evidence to refute that recommendation. In fact, the coordinator of the Learning Center testified that the parents and CSE mutually determined not to include speech services on the IEP.
Based on the record before me, I find that the Learning Center and counseling services were appropriate to address the child's special education needs. Having found that the child's IEP was appropriate, with the one exception noted above, I find that respondent has met its burden of proof with respect to the appropriateness of the educational services which it offered to provide to the child. Therefore, it has prevailed on the first criteria for an award of tuition reimbursement.
With respect to the second criterion for an award of tuition reimbursement, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at The Cedars Academy during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). Additionally, the Individuals with Disabilities Education Act (20 USC 1400 et seq.) requires that children with disabilities be placed in the least restrictive environment.
In resolving whether petitioner has met his burden, it is necessary to determine whether this child required an out-of-state, residential, private, preparatory school for students who demonstrate a need for enhanced scholastic and social skill development during the 1996-97 school year in order to receive educational benefits, and if so, whether the education provided by The Cedars Academy met the child’s special education needs. When the IEP was prepared at the end of the child’s eighth grade year, he had achieved passing grades in all academic subjects. I note that petitioner claims that his son’s grades were misleading and an unrealistic measure of his son’s academic achievement. I find this argument unpersuasive. The child’s math teacher testified that because the child was in a modified curriculum, the highest grade he could achieve was a C, which the child did achieve as his final grade. Moreover, the child’s academic deficits were described as "moderate" on the IEP. Additionally, as described above, the IEP stated that the child had social and management needs which needed to be addressed to enable the child to function in an academic setting.
Petitioner indicated during the hearing that his son was successful at The Cedars Academy and introduced the child’s grades for the first semester of his ninth grade year, which revealed that the child achieved A’s and B’s. However, no one from The Cedars Academy testified at the hearing about the special education services, if any, which the boy received there, or how any of his special education needs were addressed at the private school. Upon the evidence which is before me, I am unable to find that petitioner’s son required a full-time residential placement outside of his school district in order to receive educational benefits during the 1996-97 school year. The record shows that the child was generally successful while enrolled in respondent's schools, notwithstanding his deficits in organizational skills and mathematics. Although his emotional condition worsened while in the eighth grade during the 1995-96 school year, the CSE proposed to address that condition with individual and group counseling. While I have considered the letter by the boy's psychiatrist, I am not persuaded that it affords a basis for concluding that this child required a residential placement in order to receive meaningful benefit from his educational placement (see Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1980]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir.,1991]; Application of a Child with a Disability, Appeal No. 95-33). Therefore, I concur with the hearing officer's determination that this child did not require a residential placement during the 1996-97 school year.
I note that petitioner also requests that he be reimbursed by respondent in the amount of $30,473 for neurologic testing, psychiatric service and speech service. However, he has not indicated in the petition when those services were provided. With respect to the provision of speech/language therapy, the record indicates that the related service was discontinued with petitioner's consent. School districts are not required to provide medical treatment as part of a child's free appropriate public education (34 CFR 300.16 [a]). Absent further information about the psychiatric services provided to the boy, I have no basis for considering petitioner's claim for reimbursement. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However their right to an independent evaluation is subject to the school district's right to initiate a hearing to demonstrate the appropriateness of its evaluation. If the hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][vi][a]). Since this appears to be a new issue which was not addressed by the hearing officer, I will not order respondent to pay for the unidentified evaluation without affording it the opportunity to initiate a hearing.
As petitioner has not prevailed on the first two criteria for an award of tuition reimbursement, it is not necessary to address the third criterion. Based on the above, petitioner’s request for tuition reimbursement must be denied.
I have considered petitioner’s other assertions which I find to be without merit.
THE APPEAL IS DISMISSED.