98-037

       Petitioner appeals from the decision of an impartial hearing officer which found that petitioner's son should not be classified as a child with a disability and that petitioner did not demonstrate the appropriateness of her son's placement at the Winston Preparatory School (Winston Prep) for the 1997-98 school year. Respondent cross appeals from the hearing officer's determination that the subcommittee of its committee on special education (CSE), which recommended that the child not be classified, was not properly constituted. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Preliminarily, I will address the procedural issues in this appeal. Petitioner asserts that respondent's cross-appeal is untimely because it was included in respondent's answer which was served more than 40 days after respondent had received the hearing officer's decision. She argues that she agreed only to respondent's request for an extension of time to file its answer, not to file a cross-appeal. However, respondent was authorized to include a cross-appeal in its answer (8 NYCRR 279.4 [b]). Petitioner filed a reply to the cross-appeal, and therefore has not been deprived of an opportunity to address the issues raised therein. Under the circumstances, I find that petitioner has not been prejudiced by respondent's delay in filing a cross-appeal, and I will consider it.

        While petitioner raises additional allegations in her reply to respondent's cross-appeal, I must note that pursuant to Section 279.6 of the Regulations of the Commissioner of Education, her reply is limited to any procedural defenses interposed by respondent or to additional documentary evidence included with the answer. Consequently, I have not considered those allegations raised by petitioner in her reply to respondent's cross-appeal which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence included with the answer.

        Petitioner's son was 13 years old and in the eighth grade at Winston Prep at the time of the hearing. Winston Prep is a private school in New York City which has not been approved by the State Education Department to provide special education. The child attended Roosevelt Island School for kindergarten through the fifth grade. He began attending Wagner Junior High School for the sixth grade during the 1995-96 school year.

        A private educational evaluation was completed on October 6, 1996 when the child was in the seventh grade, because petitioner believed that her son was experiencing increased academic difficulties. The child's parents believed that their son's academic difficulties were intensified by his emotional and behavioral reaction to frustrating situations. The private evaluator noted that the child displayed a low frustration tolerance in varying degrees, intermittent over-anxiety, poor impulse control, and low self-esteem throughout the testing. She indicated that he would not grapple with items that he found personally arduous in cognitive areas, and in areas of academic accomplishment, he personalized items of difficulty and expressed dismay over his lack of prowess "to the point of becoming tearful". On the Woodcock Johnson Psycho-Educational Battery Revised (WJ-R) Tests of Cognitive Ability, the child's broad cognitive score was in the average range, however, the private evaluator noted that there was a wide variance in the child's capacity for specific cognitive functions. His long-term retrieval, fluid reasoning, comprehension-knowledge and visual processing skills were in the high average range, but in auditory processing, the child scored in the dull normal range. On the WJ-R Tests of Achievement, the child achieved average scores in broad reading. The private evaluator noted that the child's scores indicated a poor ability in sounding out new words, and a sporadic comprehension ability, which, she indicated, was consistent with his weak auditory processing capabilities. While the child achieved a grade equivalent score of 6.9 in broad math, his calculation abilities were characterized by the private evaluator as limited, having achieved a grade equivalent score of 5.9. The child achieved grade equivalent scores of 7.4 on the broad written language component of the WJ-R Tests of Achievement and 9.4 on the broad knowledge component. On the dictation subtest of the broad written language component of the test, the child achieved a grade equivalent score of 5.6. However, when given an opportunity to express his thoughts in specific subject areas, such as on the science subtest, the child achieved a grade equivalent score of 16.0, which was in the superior range. The private evaluator concluded that the child's standardized test results suggested a specific learning disability in auditory processing, and that the child had significant weaknesses in the skills necessary for grade level performance in math and written language. She recommended the use of a multi-modal teaching method, assistance for note taking, training in sound blending and phonemic segmentation, and teaching decoding and spelling by emphasizing the sound symbol associations. She also recommended counseling and/or involvement in a peer support group to assist the child in reconciling the scope of his strengths and weaknesses, understanding the meaning of a learning disability, helping him comprehend the meaning and effect of an attention deficit hyperactivity disorder (ADHD), which he had been diagnosed as having in August, 1996, and to strengthen his social skills. Additionally, the private evaluator suggested tutoring to improve in math and writing skills, strengthen reading skills, and address organization of school work and time usage. She also suggested the use of a word processor to assist the child with his homework.

        By letter dated December 13, 1996, the child's parents, at the suggestion of a guidance counselor at the child's school, contacted respondent's CSE requesting that it review the October, 1996 private educational evaluation in an effort to obtain an appropriate program for their son. In a January 7, 1997 letter, petitioner formally requested a CSE evaluation of her son.

        In a psychological report dated January 29, 1997, the program director of the Attention-Deficit Hyperactivity Disorder Center at Mount Sinai Medical Center (ADHD Center) reported that the child was initially evaluated at the ADHD Center because his parents were concerned about his difficulties in academic, social, and emotional functioning. He indicated that the child had been evaluated and had received psychological and psychiatric treatment for ADHD, primarily inattentive type, at the ADHD Center since August, 1996. The program director indicated that the child's problems with attention and concentration combined with his auditory processing difficulties had severely impaired his academic functioning. He further indicated that the child had been receiving medication, as well as behavioral interventions and cognitive behavior therapy to foster self-efficacy and to address behavioral issues related to motivation and attention. The program director opined that the child's treatment had been helpful in increasing the child's abilities and reducing the negative emotional response the child experienced due to his limitations. However, the program director noted that there was room for continued improvement especially in the area of academic functioning. He recommended that the child be classified as other health impaired, and suggested that the child would benefit from increased structure in the classroom, including individualized instructional material as necessary and receiving long range assignments in advance, more frequent monitoring and feedback during independent class work, the use of a multi-sensory teaching strategy, assistance with note taking, the use of a recording device to tape classroom lectures, the use of a computer, and extended time on tests. The program director stressed the importance of a system of positive reinforcement and shaping to provide consistency with the child's at home behavioral treatment program.

        In a social history conducted on February 11, 1997, the child's mother advised the district's social worker that her son was experiencing difficulty in the seventh grade at Wagner Junior High School where he was participating in the special progress program, an advanced program for students functioning significantly above grade level. The child's mother described her son as behaving in an anxious and nervous manner, and she indicated that he was overly sensitive in his reactions to various interactions with his peers. The child's mother further indicated that her son was unable to maintain friendships because of his subdued and introverted personality, and his inability to understand social cues. She described her son as an "indoor kid", interested in video games, books, and fantasy and creative play with his action figures. Petitioner expressed concern about her son's auditory processing difficulties, phonetic difficulties, and writing fluency problems, which she claimed manifested themselves by his slowness in copying dictation. She also referred to his tendency to stammer and stutter when expressing himself verbally, his confusion with oral directions, his inability to use cursive writing, and his difficulty with expository writing. Petitioner also expressed concern about her son's lack of adequate study skills. She indicated that he was unable to take notes and that he lacked the skills required to make use of outlines. The child's mother indicated that she had employed a tutor to assist her son with homework and completion of assignments. She also indicated that she contacted the school and requested that her son's seat be changed to enable him to better read and copy from the board.

        On February 12, 1997, the child was observed during his mathematics class. The educational evaluator reported that the child was one of several children completing problems on the blackboard. She noted that the child's answer was laughed at by the class, but that he did not appear to be upset. The educational evaluator reported that the child was very attentive during the class, that he was an active vocal participant, and that he appeared eager to notice the mistakes of others. The child raised his hand for almost every problem, and his answers were correct and lucid.

        In an educational evaluation conducted by the district's educational evaluator on February 25, 1997, the child indicated that he did not like doing homework because it was boring, and that he often daydreamed because of his ADHD. He advised the educational evaluator that he was taking Ritalin and Prozac. The educational evaluator reported that the child was extremely well-focused and worked diligently on all tasks presented. She noted that the child was anxious about his performance, but refused to give up when tasks became difficult. The educational evaluator reported that the child exhibited satisfactory and appropriate receptive language skills. He was easily able to follow all directions and expressed his thoughts with complete, complex and well-articulated sentences. The child achieved a grade equivalent score of 12.0 on the Oral Vocabulary Test of Synonyms and Antonyms of the Woodcock Language Proficiency Battery (WLB). He achieved grade equivalent scores of 10.2 in decoding and 12.9+ in reading comprehension (96^th percentile) on the Kaufman Test of Educational Achievement (KTEA). The educational evaluator noted that the child displayed mixed abilities in written communication arts, but assessed the child's overall writing skills as satisfactory. He wrote a three paragraph letter using complex, well-developed and grammatically correct sentences, with correct letter form, capitalization and punctuation, and made only three spelling errors. The educational evaluator described the child's handwriting as immature, but legible. On the WLB Dictation Test which assesses spelling, usage and punctuation, the child achieved a grade equivalent score of 6.4. The child achieved grade equivalent scores of 12.9+ in applied problems and 11.7 in computation on the KTEA. The educational evaluator indicated that the testing revealed that the child was functioning above age level in language skills, reading and mathematics. His expressive writing, written fluency, and use of writing mechanics were assessed to be grade appropriate. While he displayed some spelling weaknesses and an immature handwriting, his overall performance was assessed to be satisfactory.

        In a psychological evaluation conducted in February and March, 1997, the child achieved a verbal IQ score of 123, a performance IQ score of 119, and a full scale IQ score of 123 on the WISC-III placing him in the superior range of intellectual functioning. The child scored in the superior range on tasks measuring verbal knowledge and knowledge obtained informally and through formal education. He also scored in the superior range on tasks measuring the ability to interpret and organize visually perceived material within a time limit and non-verbal abstract reasoning, suggesting very superior logical reasoning with spatial relationships. On tasks measuring attention, short-term memory and rote copying ability, the child scored in the average range. The district's psychologist opined that the depressed score for these tasks could be due in part to the child's high anxiety level. Visual motor and perceptual-motor functions were assessed to be adequate. The child's designs were poorly organized, overworked and redrawn, suggestive of the child's anxiety. On the personality assessment, the district's psychologist observed that the child was overly anxious and experienced difficulty developing stabilizing defense mechanisms. She reported that he was confused about himself, and that he was unhappy with himself unless he was perfect. She noted that he was uncomfortable in unstructured situations without consistent controls. The district's psychologist reported that, socially, the child felt isolated and different from his peers, and that his interpersonal relationships were conflictual. She indicated that the child over interpreted the actions of others towards him as having hostile intentions, and was likely to respond with aggressive attacks over minimal, if any, provocation. She noted that the child did have some awareness of his problems and was learning to consciously direct himself to deal better with reality. The district's psychologist recommended that the child receive group therapy outside of school to provide more opportunity for peer interaction, and that he be given as much opportunity as possible to socialize with peers both in and outside of school. She further recommended test modifications in order to allow the child more time because of test anxiety.

        In a psychiatric summary of the child dated March 10, 1997, the child's psychiatrist indicated that he had been treating the child for ADHD and minor mood disorder since August, 1996. The psychiatrist reported that the child acknowledged difficulties with attention, organizing work, reading social cues, interacting appropriately with peers, and self-esteem. He indicated that the child was on a trial of Ritalin which had provided considerable additional benefits for the child's attention and organization. The child was also receiving a small dose of Prozac because of persistent mood problems. The psychiatrist indicated that the child required a structured educational setting.

        On March 11, 1997, the child was observed while in his language arts class. The district's psychologist described the class as well-structured. He observed that the child appeared attentive and relaxed. He noted that the child had no difficulty with transitions. The district's psychologist observed that the child advised his teacher that he was having difficulty understanding part of the assignment. The teacher indicated that she would explain the assignment to the whole class during discussion time. The district's psychologist reported that the child was "clearly able to wait to have his need met." The district's psychologist spoke to the child and indicated that the child maintained excellent eye contact and demonstrated well-developed pragmatic communication skills. The district's psychologist reported that the child performed appropriately academically and socially, and presented no unusual management or instructional needs.

        The child's report card shows that he received an 85% as a final grade in English, social studies and mathematics, a 93% in science, and a 75% in French. He received a final rating of 84.6% which qualified him for "Honors" status.

        A subcommittee of respondent's CSE met on March 12, 1997. The participants at the meeting included the child's parents and psychologist, the district's educational evaluator, social worker, and school psychologist, and a guidance counselor from the child's school. The subcommittee found that the child did not require any special education services, and did not classify the child. However, it did recommend that he receive group counseling.

        Petitioner requested an impartial hearing. The hearing was held on April 22, 1998, and the hearing officer rendered his decision on July 1, 1998. Although he found that the CSE subcommittee properly refused to classify the child, he nevertheless applied the analysis established by the Supreme Court in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985) for an award of tuition reimbursement under the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA). The hearing officer found that respondent did not meet its burden of demonstrating that it made a valid and timely placement offer because it could not show that the subcommittee that it had appointed to review the case was validly constituted. He further found that petitioner did not demonstrate the appropriateness of the private placement she selected for her son. Accordingly, the hearing officer denied petitioner's request for tuition reimbursement.

        Petitioner challenges the hearing officer's decision on a number of grounds. Initially, she claims that although she requested a CSE meeting, respondent's CSE appointed a subcommittee to evaluate her child, and that subcommittee did not include a parent member. Pursuant to Section 4402(1)(b)(1)(b) of the Education Law, the boards of education in city school districts of over 125,000 inhabitants must appoint subcommittees of the CSE to the extent necessary to ensure timely evaluation and placement of pupils with handicapping conditions. The membership of each subcommittee must include the child's teacher as defined by applicable federal regulations, a representative of such school district who is qualified to provide, administer or supervise special education, and a school psychologist, whenever a new psychological evaluation is reviewed. There is no requirement that there be a parent member of the subcommittee, as is the case for a CSE. If a child's parent disagrees with a subcommittee's recommendation, the parent may submit a written request to have the matter referred to the full CSE. There is no evidence of a written request to do so in this case. Therefore, I find that petitioner's contentions that respondent's review was technically deficient because it was conducted by a subcommittee and did not include a parent member are without merit.

        Nevertheless, the hearing officer found that the subcommittee was not properly constituted because the child's "actual teacher" did not attend the CSE subcommittee meeting. Respondent cross-appeals from that portion of the hearing officer's decision. The record shows that a school psychologist was present at the March 12, 1997 meeting. A school social worker also was present at the meeting. Respondent claims that the social worker served as the representative of the school district who was qualified to provide, administer or supervise special education (34 CFR 300.345 [a][1]) because the social worker could provide counseling which is one special education service. An educational evaluator also was present at the meeting. Respondent argues that the educational evaluator served as the child's teacher, as that term is used in Federal regulation and State law to prescribe mandatory members of a CSE, or its subcommittee. Respondent has attached the educational evaluator's teaching licenses to its answer. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). I will accept the documents offered by respondent so that I have a more complete record. For the same reason, I will accept the documents attached to the petition.

        The evidence shows that the educational evaluator identified by respondent to serve as the child's teacher member of the CSE subcommittee was licensed by the City School District of New York as a Teacher of Common Branches - Day Elementary School, which pursuant to Section 80.22 (j)(2)(ii)(c) of the Regulations of the Commissioner of Education is the equivalent of a State certification to teach nursery school, kindergarten and grades one through six. She also is licensed as a teacher of Greek (Bilingual-Common Branches), again qualifying her to teach through the sixth grade. There is no evidence in the record that she is licensed to instruct beyond the sixth. At the time of the CSE evaluation, the child was in the seventh grade, and the year which is the subject of this proceeding is the 1997-98 school year, the child's eighth grade year. Pursuant to 34 CFR Section 300.344 note(1)(c), if the child has more than one teacher, the agency may designate which teacher will participate in the meeting. Either the teacher or the agency representative should be qualified in the area of the child's suspected disability. There is no evidence in the record to show that the educational evaluator is qualified in the area of the child's suspected disability. Moreover, pursuant to 34 CFR 300.533(a)(3), the district must ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data and the placement options. There is no evidence in the record that the educational evaluator ever evaluated the child, or was qualified to explain the results of the child's evaluation. She was not one of the child's teacher's, nor was she qualified to instruct him because she was only licensed to teach through the sixth grade. Based on the record before me, I find that the subcommittee appointed by respondent's CSE did not meet the requirements set forth in federal and state law and regulations, and thus was not properly constituted.

        Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that petitioner's son 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 subcommittee. 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).

        Having found that respondent did not meet its burden of proof with respect to the appropriateness of the recommendation made by the subcommittee appointed by respondent's CSE, I must determine the appropriate remedy. Petitioner requests that respondent be required to reimburse her for the cost of her son's tuition at Winston Prep. The remedy of tuition reimbursement is available for a child who is entitled to receive a free appropriate public education pursuant to the IDEA. However, the threshold issue in this proceeding is whether petitioner's son is a child with a disability for purposes of the IDEA, 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 son necessarily meets the statutory and regulatory criteria for classification as a child with a disability.

        In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a][1]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). I have carefully considered the evaluation reports and the testimony of the various witnesses. Although the record shows that the child had some auditory processing weaknesses and behavioral management issues, he was nonetheless achieving above average grades in most subjects. He received an Honors classification in the special progress program at his school. The standardized tests demonstrate that the child was functioning in the above average to superior range, which was consistent with his cognitive ability. Although the child could apparently benefit from counseling, it does not follow that he is eligible for special education. Counseling is an educationally related support service which can be provided to children who have been classified (see Section 3602 [32] of the Education Law]. Upon the record which is before me, I am unable to conclude that the child required special education and related services to benefit from instruction, i.e., that he was a child with a disability during the 1997-98 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 her son is a child with a disability (Roane County School System v. Ned A., 22 IDELR 574, [U.S. D.C. E.D. Tenn., 1995]).

        I have considered petitioner's other arguments, which I find to be without merit. I have also considered respondent's other affirmative defenses, and find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.