99-069

       Petitioner, the child’s father, appeals from that portion of the hearing officer’s decision which denied his request for tuition reimbursement for the cost of his son’s tuition at the Kildonan School (Kildonan) for the 1998-99 school year. Respondent cross-appeals from the hearing officer’s determination that it failed to refer the child to the committee on special education (CSE) or act upon petitioner’s referral. The appeal must be dismissed. The cross-appeal must be sustained in part.

        Preliminarily, I note that petitioner authorized his sister, the child’s aunt, to act on his behalf with respect to his son’s educational issues (Parent Exhibit 6).

        The child was 12 years old and in the seventh grade at Kildonan at the time of the hearing. Kildonan, a private school in Amenia, New York, serves children with specific reading and writing disabilities. It has not been approved by the New York State Education Department to provide education to children with disabilities.

        The child attended private school for first and second grades (District Exhibit 5). In an interim report completed when the child was in the second grade during the 1993-94 school year, his teacher noted that he had difficulty paying attention and following directions in a group. She further noted that he needed directions to be repeated and one-on-one instruction to accomplish tasks (Parent Exhibit 11). The child transferred to respondent’s school district for the third grade during the 1994-95 school year. On November 1, 1994, he was evaluated by a speech/language pathologist, who reported that the child demonstrated adequate language skills, but had a three-year delay in rote auditory memory skills (District Exhibit 15). She noted that the child appeared to have difficulty maintaining attention. The speech/language pathologist did not recommend speech/language services for the child, but she did suggest that the child’s teachers be advised of his memory deficit so that they could employ various strategies with him, such as shortening directions and providing visual information. The child successfully completed the third and fourth grades without any special education services.

        When the child was in fifth grade during the 1996-97 school year, his father received two 5-week notice reports advising him that his son’s current academic status was borderline/failing (Parent Exhibit 13). On one of the reports, the child’s teacher noted that the boy prepared assignments poorly, was inattentive in class, and turned in much of his work late. She suggested that his grades would be better if he completed practice work.

        The child entered middle school for sixth grade during the 1997-98 school year. At a parent-teacher/team conference held on November 13, 1997, the child’s teachers indicated that he had made little progress (District Exhibit 3). They noted that the child had exhibited attention/concentration difficulties, was unprepared, had weak academic skills, and performed poorly on tests. The child’s father reported that his son had a history of difficulty concentrating. The child’s father and teachers agreed to refer the child for an evaluation pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504) (District Exhibit 2) and the child’s father signed a consent form for his child to be evaluated (Parent Exhibit 5). Although the consent form did not specify the purpose of the evaluations, the child’s teachers and the evaluators believed that the child was being evaluated to determine his eligibility for Section 504 services. The conference record includes a plan of action providing for a full battery of testing and various strategies to assist the child. Additionally, attention deficit disorder evaluation scale forms were distributed to the child’s father and his teachers.

        In a psychoeducational evaluation conducted on December 8, 1997, the school psychologist noted that the child was referred to the Section 504 committee jointly by the sixth grade team and his father because of his low academic performance, writing deficits, and attention difficulties. The child achieved a verbal IQ score of 111, a performance IQ score of 103, and a full scale IQ score of 107 on the Weschler Intelligence Scale for Children - III (WISC-III), placing him in the average range of intellectual functioning (District Exhibit 4). The school psychologist noted that the child’s performance on the WISC-III may not have reflected his actual ability because of the child’s inattention, poor motivation, or boredom. She noted that the child’s freedom from distractibility index was significantly lower than his verbal comprehension index. The child obtained average scores on the Beery Test of Visual Motor Integration. The psychologist performed an intelligence achievement discrepancy analysis comparing the child’s IQ scores and his scores from the Woodcock Johnson Tests of Achievement (WJ-R). She reported that there was a significant discrepancy between the child's intellectual ability and achievement in the areas of letter-word identification, calculation, dictation, writing and broad writing. She also noted that the child might be experiencing a moderate level of anxiety. The school psychologist concluded that the child demonstrated an educational disability which qualified him for Section 504 services. She recommended that the child be closely monitored, and that he be considered for special education services if his learning remained problematic or deteriorated.

        The school psychologist observed the child in his science class on December 10, 1997. She reported that the child appeared to be organized and focused, and he had behaved appropriately while other students were giving presentations. She indicated that the child’s activity level was unremarkable, and that his attention span appeared to be good in comparison to other students in the class. He also displayed good effort and concentration, was cooperative and compliant with the rules of the classroom, and was friendly and outgoing with his peers.

        An educational evaluation of the child was conducted in January, 1998 by the child’s writing lab instructor (District Exhibit 5). On the WJ-R, the boy achieved grade equivalent (and standard) scores of 7.1 (109) for broad reading, while his subtest scores ranged from 5.8 (99) for letter-word identification to 10.0 (120) for passage comprehension. He also achieved grade equivalent (and standard) scores of 6.9 (112) for broad math, indicating that he was capable of doing average to low average class work in math. His broad knowledge skills were in the average range, except that his knowledge of the humanities was slightly below grade level. The child’s broad written language skills were reported to be at a 4.2 grade equivalent, which was more than two years below grade level. The examiner recommended that the child receive services pursuant to Section 504. She further recommended that the child participate in a 10-week program of direct remediation in an every other day writing lab. Noting that the child was being tutored after school, the evaluator recommended that the tutor concentrate on developing the child’s study skills. The evaluator recommended strategies to address the child’s auditory memory skills and anxiety. She suggested that the results of the attention scale and school reports be shared with the child’s pediatrician. The evaluator noted that the boy was scheduled to undergo an "outside" evaluation, and recommended that the Section 504 committee review the results of that evaluation to determine if the child should be referred to the CSE.

        The educational evaluation included a report of an observation of the child which the examiner conducted in October, 1997. The examiner reported that the child had attended to task and appeared to be happy during a language arts lesson. He volunteered to read aloud a poem that he had written about a classmate. The evaluator noted that the boy had legibly and accurately copied his assignment into an agenda book. However, he had taken only minimal notes from a book which had been read, and he did not add details to his notes during a class discussion. Rather, he put his head down and began to draw. During a written test, the child was unable to develop his thoughts on paper, and appeared to be very frustrated.

        Another parent-teacher/team conference was held on February 2, 1998, during which the boy’s psychoeducational and educational evaluations were reviewed (District Exhibit 8). The meeting participants developed a Section 504 services plan which included a 10-week writing lab, use of a computer for state testing, and various strategies for developing the child’s study skills (District Exhibit 7). No referral to the CSE was made at the meeting.

        On March 16, 1998, another parent-teacher/team conference was held. The boy’s aunt reportedly discussed the results of private testing which had been done at Kildonan in February, 1998. I note that there is no written report of that evaluation in the record, and that the person who had tested the boy at Kildonan testified at the hearing that she had administered a brief screening to the boy in February, 1998. The parent-teacher/team reviewed the boy’s Section 504 plan, and recommended continuation of the writing lab for an additional ten weeks, but did not recommend any other changes. No referral to the CSE was made.

        In early June, 1998, the child’s aunt telephoned the school’s principal to request a specific classification for her nephew, and a meeting (Transcript p. 398). The principal reportedly advised the aunt that there wasn’t enough time left to meet before the end of the school year. The teacher/team did not meet with the child’s father or aunt again that school year.

        In a June 1, 1998 progress report, the child’s social studies teacher indicated that the boy had completed only one homework assignment, and was failing (Parent Exhibit 16). The teacher for the child’s regular education study skills lab indicated that the boy’s academic average was unsatisfactory because of missing classwork. She noted that the child needed to devote more time and effort to his assignments, and that he needed to continue to work on organizational skills. The teacher further noted that the child had trouble focusing on the task at hand and distracted others. In a June 10, 1998 progress report, the child’s writing lab teacher commented that the child had made minimal progress (District Exhibit 14). She noted that he did not attend to task unless he was directly supervised. The teacher reported that the child needed to be encouraged to develop more independence. The child achieved final grades of P in writing lab, C in skills lab, C- in library, D+ in social studies, D- in math, C- in computer, B+ in art and C+ in physical education for sixth grade (Parent Exhibit 17).

        By letter dated July 8, 1998, the child’s father informed respondent’s Superintendent of Schools of his intention to enroll his son in Kildonan (Parent Exhibit 20). In a subsequent letter dated August 28, 1998, the child’s father advised the Superintendent that he had made arrangements to place his son at Kildonan, and he requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Parent Exhibit 2).

        The child was enrolled in the seventh grade at Kildonan during the 1998-99 school year. In an Academic Performance Inventory dated October 19, 1998, the child’s teachers, with the exception of his art teacher, consistently commented that he had difficulty sustaining attention, following directions, and organizing and completing his work (District Exhibit 17).

        On October 27, 1998, the child was evaluated by a pediatric neurologist who described the boy as having "…a history of significant attention deficit disorder albeit mild hyperactivity, and some learning disabilities particularly in the areas of written expression." (Parent Exhibit 21) He opined that the child would benefit from stimulant medication and recommended that the child begin a blind trial of Dexedrine. I note that the record before me contains no evidence of any diagnosis of either an attention deficit disorder or an attention deficit disorder with hyperactivity.

        On November 23, 1998, the child’s language training tutor at Kildonan reported that the child initially had difficulty completing homework assignments on a regular basis (Parent Exhibit 9). She noted that while the boy was more successful in completing assignments after his tutor was changed, he had nevertheless completed only a portion of them on a regular basis. The tutor reported that the child had made good progress in developing his sentence skills and expository writing, but only slow progress in independent reading. The child’s math teacher reported that the boy’s progress had been impeded by poor organizational skills and failure to complete assignments. The child’s literature teacher reported that the boy occasionally engaged in side conversations, and submitted his weekend assignments late. He often missed important notes in class. The child’s science teacher noted that the boy’s previously disruptive behavior had improved, and that he had started to participate in class discussions with positive and thoughtful answers. With improved study habits, the boy had raised his quiz grades and completed most of his science assignments on time. The child’s history teacher noted that the boy had difficulty keeping still, paying attention, taking notes, and handing in his assignments at the beginning of the year, but that he had become more focused and able to concentrate, take good notes and organize his work. An Attention Control Inventory was completed by the child’s history teacher on December 8, 1998 (Parent Exhibit 22). She reported that there were only occasional instances of attention difficulties.

        The impartial hearing in this proceeding began on November 12, 1998, and continued on January 26, 1999. The hearing ended on March 9, 1999. On July 6, 1999, the hearing officer rendered his decision. He found that the school psychologist and the educational evaluator had suspected that the boy had an educational disability requiring special education or related services, and that the 504 team had sufficient evidence at its March 16, 1998 meeting to warrant referral of the boy to the CSE. In addition, the hearing officer found that the request for assistance which the boy’s father had made in November, 1997 and his consent to an evaluation was a referral to the CSE. He concluded that respondent had violated the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as the IDEA) and Section 504 by not referring the child to the CSE or following up on his parent’s referral to the CSE.

        The hearing officer then addressed petitioner’s claim for tuition reimbursement. He noted that a board of education may be required to pay for educational services obtained for a child by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and the parents' claim was supported by equitable considerations (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The hearing officer found that the parent had prevailed with regard to the first criterion for an award of tuition reimbursement because the school district had not demonstrated that it had offered an appropriate program to the boy. However, he further found that the record did not demonstrate that Kildonan offered a specially designed program to meet the child’s individual needs. Accordingly, he found that the child’s father failed to demonstrate that the services he obtained for his son were appropriate, and he denied the father’s request for tuition reimbursement. The hearing officer ordered the CSE to reconvene to reevaluate the child to determine his eligibility for special education services.

        I will first address the Board of Education’s cross-appeal because petitioner’s appeal would become moot if respondent prevails on its cross-appeal. Respondent challenges the hearing officer’s finding that the boy had been referred to the CSE within the meaning of 8 NYCRR 200.4 (a). It asserts that there was no written referral by the parent, and argues that there could not have been a referral for purpose of the Regulations of the Commissioner of Education because 8 NYCRR 200.4 (a) requires that the referral be in writing. The regulation does not prescribe the form which a referral by a parent must take, but it does require that it be in writing. I have examined the consent form which the boy’s father signed in November, 1997 (Parent Exhibit 5), which does not indicate whether the evaluation is for purposes of Section 504 or the IDEA. However, I decline to construe the form as a written referral, in view of evidence in the record that petitioner had agreed to have his son evaluated for purposes of Section 504 eligibility. Therefore, I must annul that part of the hearing officer’s decision.

        Respondent also challenges the hearing officer’s finding that the school psychologist and educational evaluator who tested the boy in December, 1997, and January, 1998, respectively, suspected the boy of having an educational disability requiring the use of special education or related services, and should have referred him to the CSE. I must also disagree with the hearing officer’s finding on this issue. It is readily apparent from reading the reports which both individuals prepared that they were aware that he had recently been referred to the district’s 504 committee, and had not as yet received services under that statute. Both evaluators assumed that the 504 committee would proceed to address the boy’s difficulties, and if that intervention proved to be unsuccessful, would refer the boy to the CSE. In view of the fact that school employees who refer a child to a CSE must indicate on the referral what steps have been previously taken to remediate the child’s performance, I find that the evaluators’ assumption that the child should receive 504 services first was reasonable. The record shows that the child was evaluated, a Section 504 plan was developed and implemented, and the child’s teachers and evaluators continued to meet with the child’s father and aunt during the school year. Based upon the information before me, I have no basis to conclude that the child should have been referred to the CSE by respondent’s staff as a result of the two evaluations. However, that is the extent to which respondent’s cross-appeal can be sustained.

        The question remains whether respondent’s staff should have referred the boy to the CSE at some point during the remainder of the 1997-98 school year. The boy had received Section 504 services for approximately five months. During that period, the boy received extra help in the writing lab. The June 1, 1998 progress report by the boy’s social studies teacher and the June 2, 1998 progress report by his skills lab teacher (Parent Exhibit 16) indicated that the boy continued to manifest the same attention and organizational difficulties which he had previously displayed. In the boy’s final report card for the sixth grade, his writing lab teacher, skills lab teacher, and math teacher commented about his distractibility and failure to complete assignments (Parent Exhibit 17). He achieved final grades of D+ in social studies, D- in math, C- in computer, and C in skills lab. Based upon the information before me, I find that the child should have been referred to the CSE by respondent’s staff by the end of the school year. Although the boy had been receiving Section 504 services since February, 1998, there was no change in his educational performance. As noted above, the school psychologist had recommended that the child be considered for special education services if he continued to have academic problems. Since he continued to have academic problems, he should have been referred to the CSE.

        I now turn to petitioner’s appeal. Petitioner seeks an award of tuition reimbursement. The remedy of tuition reimbursement is available for a child who is entitled to receive a free appropriate public education pursuant to the IDEA, and who did not receive such education from his or her school district. Before an award of tuition reimbursement can be made, it must first be determined whether the child is a child with a disability for purposes of the IDEA or its State counterpart Article 89 of the Education Law. I agree with the hearing officer that the matter should be remanded to respondent’s CSE, so that a complete evaluation can be performed, consistent with the requirements of 8 NYCRR 200.4 (b) to determine whether the child should be classified as a child with a disability pursuant to IDEA. In doing so, I note for the CSE’s benefit that the appropriate standard is not whether the boy demonstrates an inability to learn, as some of respondent’s staff appear to have believed to be the standard. In the event that the CSE determines that the boy should be classified as a child with a disability, it must also determine what special education services he requires. Until there is an adequate basis to determine whether the boy should have been classified, and if so, what services he should have received, I find that petitioner’s request for an award of tuition reimbursement is premature. Accordingly, I must dismiss petitioner’s appeal.

        Additionally, I will not review the appropriateness of the Section 504 services provided to the child. The New York State Education Law makes no provision for State-level administrative review of hearing officer decisions in Section 504 hearings (Application of a Child with a Disability, Appeal No. 99-10). Petitioner’s remedy is to seek review in the Courts. I have considered petitioner’s other claims which I find to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent it found that the child had in fact been referred to the CSE by his father, and that petitioner had prevailed with respect to the first criterion for an award of tuition reimbursement.