98-048

        Petitioner appeals from the decision of an impartial hearing officer which denied petitioner’s request for an award of tuition reimbursement for his son’s unilateral placement at the Windward School (Windward), a private school for children with learning disabilities in White Plains, New York, for the 1997-98 school year. The appeal must be dismissed.

        Petitioner’s son was 14 years old and in the eighth grade at Windward at the time of the hearing. He attended the All Souls Nursery School for kindergarten, then the Allen-Stevenson School (Allen-Stevenson) from first grade through seventh grade. Allen-Stevenson is a private regular education school in New York City. When the child was in the first grade, he was reportedly diagnosed with an Attention Deficit Disorder (ADD) for which he takes Ritalin. The child reportedly experienced difficulty with learning throughout his years at Allen-Stevenson, where he attended the school’s resource room/learning center. He also received private tutoring at home twice per week. By the time the child was in the seventh grade, it became increasingly difficult for him to keep up with the demands of the curriculum. His teachers and private tutor recommended that petitioner explore other schools that would better meet his son’s needs.

        On April 24, 1997, toward the end of the child’s seventh grade year, petitioner referred his son to respondent’s CSE. The CSE conducted an evaluation consisting of a social history, a psychological evaluation, and an educational evaluation. It also obtained a medical history of the child which indicated that the child had ADD, asthma and allergies. The district’s educational evaluator attempted to conduct a classroom observation of the child on June 10, 1997, however, the child did not attend school that day, which was the last day of the school year. The educational evaluator reported that she spoke to the director of the school’s resource room/learning center who indicated that the child received remedial reading as well as assistance in completing assignments on the computer because he exhibited grapho-motor delays. Unable to conduct a classroom observation because the school year had ended, the educational evaluator observed the child on June 14, 1997 while he was undergoing a psychological evaluation. She indicated that the child was cooperative and compliant with the psychologist.

        The CSE met on July 24, 1997. It found that the child demonstrated average to high average intellectual abilities and that his general written expression skills were adequate. The CSE noted that the child’s handwriting was an area of concern, but recommended that it could be addressed through general education. The CSE recommended that the child not be classified as a child with a disability. Petitioner objected to the CSE’s recommendation and unilaterally placed his son at Windward for the 1997-98 school year. Windward has not been approved by the New York State Education Department to provide special education to children with disabilities.

        On September 3, 1997, petitioner requested an impartial hearing challenging respondent’s determination not to classify his son and requesting tuition reimbursement for the 1997-98 school year. Although scheduled to begin on September 17, 1997, the hearing was adjourned at the parties’ request on various dates until May 8, 1998. On May 8, 1998, the CSE representative conceded that the CSE’s recommendation was flawed because the CSE had not observed the child in his current educational setting as required by 8 NYCRR 200.4(b)(4)(viii). However, the CSE representative contended that the private placement was too restrictive.

        The hearing officer rendered his decision on July 7, 1998, which he amended on July 17, 1998. Recognizing that petitioner’s request for tuition reimbursement was necessarily premised upon a determination that the child was in fact a child with a disability under Federal and State law, the hearing officer attempted to determine whether the child would have been appropriately classified as learning disabled. He found that the child did not meet the Federal and State criteria for classification as learning disabled (34 CFR 300.541; 8 NYCRR 200.1[mm][6]). Although the hearing officer found that the child should not be classified as learning disabled, he nevertheless included in his decision the analysis for an award of tuition reimbursement assuming, in the alternative, that the child had been found to be a child with a disability.

        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). The hearing officer noted that respondent conceded the first criterion for an award of tuition reimbursement. In reviewing the second criterion for an award of tuition reimbursement, i.e., that the services selected by the parents were appropriate, the hearing officer found that petitioner had not met his burden of establishing that Windward was the least restrictive environment for his son. Accordingly, the hearing officer denied petitioner’s request for tuition reimbursement.

        Petitioner appeals from the hearing officer’s decision. He challenges the adequacy of the evaluation conducted by the CSE on several grounds including the failure of the CSE to conduct a classroom observation. Respondent admits that there was a procedural defect with regard to the classroom observation component of the review conducted by its CSE. As noted above, an evaluation of a child suspected of having a disability must include an observation of the child in the child’s current educational setting (8 NYCRR 200.4[b][4][8]). The failure to perform an adequate observation of a child affords a basis for annulling a CSE’s recommendation (Application of a Child with a Handicapping Condition, Appeal No. 91-20; Application of a Child Suspected of Having a Disability, Appeal No. 93-32).

        Having found that respondent did not meet its burden of proof with respect to the appropriateness of the recommendation made by the CSE, I must determine the appropriate remedy. Petitioner requests that respondent be required to reimburse him for the cost of his son’s tuition at Windward. 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., hereinafter referred to as 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.

        The appropriate remedy would have been for the hearing officer on May 8, 1998 to immediately order the CSE to perform an observation prior to the end of the 1997-98 school year, in order to afford a basis for determining whether the child was eligible for classification as a child with a disability during that school year. When this appeal was commenced on August 25, 1998, that remedy was no longer available. In determining what would be appropriate, I have considered the fact that an order requiring the CSE to observe the child in his current setting during the 1998-99 school year would not yield evidence of what the child’s needs were during the 1997-98 school year. I find that I am obliged under the circumstances to determine whether the child was eligible for classification as a child with a disability based upon the evidence which is presently before me.

        In a private psychological evaluation conducted over several days in the fall of 1996, the child achieved a verbal IQ score of 104, a performance IQ score of 106, and a full scale IQ score of 105 on the WISC-III, placing him in the average range of intellectual functioning. On the Wechsler Individual Achievement Test (WIAT), the child attained standard scores of 93 in basic reading, 95 in spelling, 112 in mathematical reasoning, and a composite achievement score of 100. The private psychologist concluded that the child’s scores indicated that his basic academic skills were at the level predicted by his WISC-III IQ scores. He noted that the child demonstrated a relative weakness with his reading and spelling skills, as well as his grapho-motor skills.

        In an educational evaluation conducted on May 31, 1997, the child achieved standard scores of 107 in word identification, 108 in reading comprehension, 108 in listening comprehension, and 91 in spelling on the WIAT. On the Kaufman Test of Educational Achievement, the child achieved a standard score of 114 in mathematics. The educational evaluator noted that the child demonstrated some delays in spelling, written organization and sentence structure. In a psychological evaluation conducted on June 14, 1997 by the district’s psychologist, the child achieved a composite score of 111 on the Stanford-Binet Intelligence Scale-Fourth Edition, placing him in the high average range of intellectual functioning.

        The record shows that on the IQ tests administered to the child, he consistently scored in the average range or better. With respect to his academic achievement, his standard scores are between 93 and 112, also in the average range. While the child displayed a relative weakness in his spelling and reading skills, his scores still fell within the range expected given his IQ. There is no indication in the record that the child exhibited a discrepancy of 50 percent or more between expected achievement and actual achievement as required by 8 NYCRR 200.1(mm)(6), or a severe discrepancy as required by Federal regulation (34 CFR 300.541) for the child to be deemed to have a learning disability. Based upon the record before me, I find that the child should not be classified as a child with a disability (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).

        I have considered petitioner’s other arguments which I find to be without merit.

THE APPEAL IS DISMISSED.