99-049

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their daughter’s tuition at the Trevor Day School (Trevor) for the 1998-99 school year. Respondent cross-appeals from the hearing officer’s determination that its committee on special education (CSE) improperly declassified the child. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Preliminarily, I will address the procedural issues raised in this appeal. Petitioners have annexed a June 25, 1999 affidavit by the Director of the Elementary Division at Trevor to their petition. They argue that the affidavit is necessary to clarify some confusion in the transcript with respect to whether Trevor has a psychologist on staff. Petitioners assert that the child’s teacher was unavailable to clarify her testimony, which could be misconstrued. Respondent argues that the information set forth in the affidavit was readily available at the time of the hearing and was not part of the record before the hearing officer. It contends that the affidavit should not be considered in this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from a 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). The affidavit merely clarifies information that was elicited at the hearing and I will accept it so that I have a more complete and accurate record.

        Petitioners argue that respondent’s cross-appeal is untimely. They assert that by agreeing to respondent’s request for an extension of time to file its answer, they did not agree to extend respondent’s time to cross-appeal from the hearing officer’s decision. However, respondent was authorized to include a cross-appeal in its answer (8 NYCRR 279.4 [b]). I find that its cross-appeal is timely.

        Petitioners’ daughter was nine years old and in the third grade at Trevor at the time of the hearing. Trevor is a private, regular education school which has not been approved by the New York State Education Department to provide education to children with disabilities. After attending a therapeutic nursery school, the child attended the West End Day School for four years from pre-kindergarten through the second grade. She reportedly attended the West End Day School at respondent’s expense. The child began attending Trevor during the 1998-99 school year.

        Although the record is unclear with respect to the child’s early history with the CSE, she has apparently been classified as emotionally disturbed since at least June, 1996 (Exhibit A). In May, 1997, the CSE recommended that she remain classified as emotionally disturbed. The individualized education program (IEP) developed at that meeting includes the results of a December, 1996 psychological evaluation, in which the child reportedly slapped and kicked the psychologist, knocked supplies off the desk, jumped on the desk and chairs, engaged in name-calling and made unfriendly statements. The psychologist indicated that the child appeared to enjoy being destructive. She noted that the child was referred to a psychiatrist in June, 1996, but recommended that the child’s oppositionalism and focused physically destructive acts required in-depth exploration.

        The CSE began the child’s annual review in the spring of 1998. In a psychological evaluation conducted on March 24, 1998 (Exhibit 2), the school psychologist reported that the child had a history of oppositional behavior in school and at home since pre-school. The school psychologist described the child as friendly, cooperative and extremely focused during the entire evaluation. She indicated that the child worked hard and had a very high tolerance for frustration. She also noted that the child had a slow, methodical style, which lowered her score in some areas, even though the tasks were clearly not difficult for her. The school psychologist concurred with the opinions of other professionals who reportedly believed that the child’s slow, methodical manner was a means of maintaining control, not an indication of a learning disability. On the WISC-III, the child achieved a verbal IQ score of 131, a performance IQ score of 104 and a full scale IQ score of 121, placing her in the superior range of intellectual functioning. The school psychologist acknowledged that the child could be stubborn and oppositional when not given her way, but indicated that the child had demonstrated much improved behavior at home and in school.

        In a classroom observation conducted on March 24, 1998 during a math class (Exhibit 4), the school psychologist noted that the child was on task for most of the class period. She indicated that the child interacted well with her teacher, but also appeared to enjoy engaging in negative attention seeking behavior. The teacher was able to re-direct the child back to the lesson with minimal effort. The school psychologist observed that the child had excellent receptive and expressive language abilities during the lesson. She was able to follow directions given and clearly articulate her thoughts.

        In a social history update which was completed on March 28, 1998, the child’s mother reported that her daughter was receiving counseling on an as needed basis at her private school (Exhibit 1). The child’s mother indicated that her daughter had been physically aggressive in the past, but now had friends at school. She described her daughter as very anxious. She noted that her daughter needed to feel safe in order to function in any setting, and that she regressed when she felt vulnerable. The child’s mother further indicated that her daughter’s behavior was better at school than at home, and that she need to have firm limits set for her. She also reported that the child responded well to behavior modification.

        In an educational evaluation conducted on March 28, 1998 (Exhibit 3), the educational evaluator noted that the child was initially resistant to the testing, but after several minutes appeared very serious and worked to the best of her ability. On the Woodcock Johnson-R Tests of Achievement, the child achieved grade equivalent scores of 4.8 in broad reading, and 2.1 in broad math. The educational evaluator reported that the child’s ability to print and to write clear sentences using proper punctuation was good. He concluded that the child was functioning significantly above average in reading, average in math, and that her writing skills appeared to be age appropriate.

        On April 8, 1998, a school social worker observed the child in her classroom in the West End Day School (Exhibit 5). She noted that there were ten students in the class, which was being taught by two special education teachers. She reported that the child was an active participant in a discussion about nature. During a grammar lesson, the child was very involved and readily volunteered to answer questions, while other students were distracted. However, during a discussion of a story, the child called out answers without raising her hand, until asked to stop by her teacher. In a post-observation conference, the child’s teacher advised the social worker that the child liked to be the center of attention, and frequently called out in class, but was very helpful and did beautiful work. She also indicated that the child constantly rocked in her seat. The teacher reported that the child was performing slightly below grade level in reading, and on grade level in math.

        A social worker who had provided counseling to the child at the private school reported that the child had made progress socially and academically. The child began making and maintaining friendships, and began to relate to her peers in a more cooperative way. She developed better coping strategies to enable her to handle her feelings in a less destructive manner. Academically, the child was working on focusing on the actual work rather than being distracted by her worries about the work. She had made progress in meeting classroom task and behavior expectations, as well as requiring less attention. The private social worker reported that the child was not a behavior problem, despite her tendency to become anxious and tense. She noted that the child responded to her teacher’s efforts to redirect her and calm her down, but warned that the teacher had to be vigilant to observe problems and intervene. The social worker concluded that the child continued to need a small, supportive, structured environment, and expressed concern that the child might regress in a mainstream setting. She suggested that the child’s parents explore a small, mainstream program, and recommended that the child continue counseling twice per week.

        On July 20, 1998, the CSE recommended that petitioners’ daughter no longer be classified as a child with a disability, and that she be placed in a general education program with transitional services of counseling (Exhibit 10). The child’s parents disagreed with the CSE’s July recommendations and requested that the CSE reconvene to review specific areas of the testing and evaluations. A different CSE team met on August 14, 1998. It reviewed a letter from the assistant director of the child’s summer camp, who described the child’s mood as unpredictable (Exhibit 9). However, the CSE reached the same conclusion as had the prior CSE (Exhibit 11). It determined that the child could function in a general education classroom. No changes were made to the IEP. Although there is no final notice of recommendation in the record, I note that the CSE’s representative at the hearing testified that the child had been offered a placement at P.S. 111.

        Petitioners unilaterally placed their daughter at Trevor for third grade during the 1998-99 school year. She began receiving private tutoring twice per week in November, 1998. On November 16, 1998, they requested an impartial hearing. The hearing was held on March 15 and April 6, 1999.

        The hearing officer rendered his decision on May 21, 1999. He found that the CSE’s recommendation was defective because it had not included any provision for assistance to the child’s regular education teacher as a declassification support service pursuant to the provisions of 8 NYCRR 200.4 (c) (10) (iii) (a) and 8 NYCRR 100.1 (q). He found that the related service of counseling appeared to have been added by the CSE as an afterthought, and there were only two vague goals in her IEP to assist her in making the transition to a regular education placement. Therefore, he determined that the child remained classified as emotionally disturbed. He ordered the CSE to reconvene to make appropriate recommendations for the child’s education. The hearing officer further found that Trevor was not an appropriate placement for the child, noting that it did not consistently provide a small classroom environment and that it did not provide specific support services to thc child or her teacher. Accordingly, he denied petitioners’ request for tuition reimbursement.

        I will first consider respondent’s cross-appeal before reaching the merits of petitioners’ appeal. Respondent contends that the hearing officer inherently agreed with the CSE’s recommendation that the child be declassified. It disputes his finding that the CSE failed to recommend adequate declassification support services for the child, while arguing that even if that finding was correct, the hearing officer should have simply directed the CSE to amend its recommendation to include assistance to the child’s regular education teacher. Respondent asks me to find that the child should be declassified. Petitioners contend that their daughter still meets the definition of an emotionally disturbed child for purposes of the Individuals with Disabilities Act (IDEA) and Article 89 of the New York State Education Law.

        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).

        The amended IDEA (20 USC 1400 et seq.) requires a board of education to evaluate a child with a disability before determining that that child is no longer eligible for classification (Section 1414[c][5]). As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related service provider observations (Section 1414[c][1][A]). After reviewing that information and information provided by the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have a disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (20 USC 1414 [c][1][B]). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child’s parents of that determination and the reasons for such determination. The CSE must also inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability ( 20 USC 1414 [c][4][ii]).

        The record shows that at its July, 1998 meeting, respondent’s CSE reviewed the updated social history (Exhibit 1), educational evaluation (Exhibit 3), psychological evaluation (Exhibit 2), and a classroom observation (Exhibit 4). It reviewed that information again at the August meeting, in addition to the letter from the assistant director of the day camp the child attended (Exhibit 7). The CSE apparently believed that it had sufficient information to determine the child’s ineligibility for classification. At the hearing, the child’s mother testified that she had asked the CSE to do a psychiatric evaluation (Transcript, page. 129). There is no documentation in the record demonstrating that petitioners were notified of the determination that no additional data were needed, or that they were advised of their rights based upon that determination as required by Section 1414 [c][4][ii] of the IDEA.

        The record reveals that the child is academically performing at or near her grade level. However, her academic performance is not commensurate with her cognitive potential, which is in the superior range. The child’s behavior in school has improved, but she has had a history of inappropriate and volatile behavior in school. At the hearing, petitioners’ attorney asked one of respondent’s witnesses about a 1996 psychiatric evaluation report which was reportedly in the child’s file but which is not part of the record in this proceeding (Transcript, page 27). The CSE’s representative asserted at the hearing that the report was irrelevant. I disagree with that assertion. In view of this child’s behavioral history and that fact that her educational performance is still not commensurate with her ability, I find that the CSE should have obtained a psychiatric evaluation of the child before determining whether she should be declassified. Therefore, I must dismiss respondent’s cross-appeal.

        Petitioners contend that the hearing officer erred in denying their request for tuition reimbursement. 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). Since the CSE’s recommendation cannot be sustained, I find that petitioners have prevailed with respect of the first of the three criteria for an award of tuition reimbursement.

        Petitioners bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at Trevor during the 1998-99 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, petitioners must show that the services were "proper under the act" [IDEA] (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). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        I have reviewed the record to ascertain the nature and extent of the child’s educational needs so that I could determine whether Trevor met those needs. As noted above, the child was functioning in the superior range of intelligence and performing near, at, or above grade level in reading, math, and writing. Her teacher at Trevor indicated that the child had no special education academic needs (Transcript p. 86). However, I note that the child was receiving tutoring twice per week because she was reportedly having difficulty adjusting to Trevor, and had academic difficulties in math and writing (Transcript p. 110). The tutor testified that the child required a great deal of reinforcement, encouragement, and adult intervention. She described the child as being fragile and defensive, which affected her attitude in school and her ability to initiate work. The child’s tutor further testified that the child required direct, specific rules and constant reminders of what was expected of her. She also stated that the child needed to be advised of her boundaries and that her behavior was to fit within those boundaries. Additionally, the child’s teachers and therapist were consistent in their opinions that she required a small classroom environment.

        The record shows that Trevor provided a mainstream environment, where the child was in a class with a student to teacher ratio of no more than 12:1 for reading, math, and writing, and 24:1 for science and social studies. However, there is nothing in the record to show how Trevor specifically addressed the child’s management needs other than offering individualized attention when she was in the small class. There is no evidence in the record that Trevor used a behavior modification plan or other strategies to address the child’s management needs. Nor is there any consistent information demonstrating that the child benefited from whatever plan was in place. While the record shows that the child made some progress at the school after a difficult adjustment period, it also shows that she continued to exhibit inappropriate behavior. Her teacher at Trevor testified that the child had made academic progress during the 1998-99 school year, but had not progressed socially in terms of interacting with her classmates. Under the circumstances, I am unable to find that Trevor offered an educational program that met the child’s needs. Accordingly, I find that petitioners have not met the second criterion for an award of tuition reimbursement.

        I note that petitioners’ attorney argues that at the very least, petitioners should be reimbursed for their daughter’s tutoring expenses. However, the record is inconsistent with respect to the child’s academic performance and whether tutoring addressed the child’s special education needs. The tutor testified that there were gaps in the child’s understanding, and that she had difficulty expressing he thoughts in writing. However, the child's teacher at Trevor did not identify any academic weakness when she testified. I must also note that the results of the child’s educational evaluation in March, 1998 revealed that her only weakness was in doing applied math problems. The tutor testified that she worked on multiplication and subtraction with the child, but the child had demonstrated that she had appropriate calculation skills during the educational evaluation.

        I have considered petitioners’ other claims, which I find to be without merit.

THE APPEAL MUST BE DISMISSED.

THE CROSS-APPEAL MUST BE DISMISSED.