99-099

          Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer’s decision which found that respondents’ son should be classified as a child with a disability, and which ordered it to reimburse respondents for the cost of their son’s tuition at Winston Preparatory School (Winston Prep) for the 1998-99 school year. The appeal must be sustained in part.

        Respondents’ son was 16 years old and in the ninth grade at Winston Prep at the time of the hearing. Winston Prep has not been approved by the State Education Department to provide instruction to children with disabilities. The student’s educational history and initial evaluations were described in a prior decision (Application of a Child with a Disability, Appeal No. 98-37), and will not be repeated here. He was unilaterally enrolled by his parents in Winston Prep for eighth grade during the 1997-98 school year after a subcommittee of the CSE recommended that the boy not be classified as a child with a disability.

        The student’s parents requested an impartial hearing challenging the subcommittee’s recommendation. The impartial hearing was held in April 1998, and the hearing officer rendered his decision on July 1, 1998. He found that the CSE subcommittee properly refused to classify the student. The decision in that proceeding was the subject of the above-referenced appeal. In that appeal, I determined that the record did not establish that the student was a child with a disability, as defined by the federal and state regulations in effect at the time (34 CFR 300.7[a][1]; 8 NYCRR 200.1[mm]).

        The student received A’s and B’s in all subjects as final grades on his report card from Winston Prep for the 1997-98 academic year (Exhibit 23). However, his teachers’ comments indicated that he continued to have difficulty with writing, paying attention, and working with his classmates.

        By letter dated July 24, 1998, respondents asked petitioner’s CSE to reevaluate their son (Exhibit 1). They expressed concerns about his excessive anxiety at school, overly sensitive interaction with his peers, and difficulty taking notes in class (Exhibit 12). In a social history report dated August 20, 1998, the interviewer noted that the student was taking medication for attention deficit disorder (ADD) and clinical depression (Exhibit 9). The student’s parents described their son as sensitive and in search of approval, and they expressed concern about his low self-esteem. They indicated that their son had difficulty reading social cues. The student’s parents advised the interviewer that their son had performed well at Winston Prep, that he was comfortable at the school, and that his emotional well-being had improved. They indicated that Winston Prep was able to address their son’s difficulty coping with frustration, as well as his anger and aggressive behavior.

        A psychological evaluation was conducted on August 20, 1998 by one of petitioner’s school psychologists. During the evaluation, the student was generally cooperative, but he became tired, frustrated, and impatient as the testing continued (Exhibit 12). The psychologist reported that some of the student’s responses were impulsive, and that he became distracted while giving long explanations with considerable detail. As a result, it took some time before he was able to answer questions appropriately. She described the student as a highly verbal youngster who tended to speak in long monologues, using a sophisticated vocabulary that was beyond his age expectancy. However, she noted that he had difficulty engaging in two-way conversations.

        On the Wechsler Intelligence Scale for Children-III (WISC-III), the student achieved a verbal IQ score of 118, a performance IQ score of 102, and a full-scale IQ score of 111, placing him in the high average range of intellectual functioning. However, the school psychologist cautioned that the student’s scores should be considered to be a minimal estimate of his abilities because of his performance anxiety, impulsivity, and other attentional and emotional factors. The student’s lowest scores were on a test measuring visual motor dexterity, psychomotor speed, and symbol-associative skills. He had the most difficulty on rote repetitive tasks which required short-term memory and the ability to concentrate. The school psychologist noted that the student’s behavior during tests measuring his perceptual motor functioning suggested that he had some deficits for which he was compensating, but doing so further exacerbated his anxiety and impulsive tendencies. During projective testing, when the student was confronted with unstructured emotionally-laden and unfamiliar situations, he reacted in a disparaging manner which, the school psychologist noted, indicated an excessive suspiciousness and fear of attack.

        The school psychologist described the student as an insecure adolescent who very much wanted to be validated and recognized. She noted that he continued to feel socially isolated and different from his peers. The school psychologist expressed concern about the student’s extreme sense of vulnerability and oversensitivity which led him to misinterpret situations and lash out at others with extreme aggression. She opined that his overly demanding demeanor and insistence that his needs be immediately as well as specifically met could result in his pushing people away, leaving him more frustrated, angry and depressed. The school psychologist concluded that the student was demanding, needy, and fragile, with a pseudo-confidence that further interfered with receiving the validation and recognition he so desperately sought. She recommended that the student be placed in a supportive and structured environment to address his social/emotional difficulties and learning problems related to ADD.

        An educational evaluation was completed on September 10, 1998 (Exhibit 15). The educational evaluator reported that the student’s reading and mathematical skills were above grade level, but his spelling and writing mechanics skills were delayed. She noted that the student appeared to be anxious about doing extremely well in school-related matters, and he required additional time to complete class assignments and tests in all academic areas. He also required additional time to express his thoughts verbally. The educational evaluator recommended that the student be placed in an environment that would encourage and support his high intellectual abilities while addressing his need to work at a slower pace in order to produce adequate schoolwork.

        The student was observed on September 25, 1998 while in a language in literacy class consisting of eight students in Winston Prep’s computer lab. The observing school psychologist reported that the student excused himself to use the rest room and did not return for 15 minutes (Exhibit 20). After reorienting himself to the class and receiving teacher direction, the student began to work, but soon thereafter, initiated off-task behavior, such as engaging in conversations with a classmate. Although the student responded to teacher directives to return to work, he again reverted to off-task behavior. The school psychologist noted that the student needed consistent refocusing and restructuring toward the end of the lesson because he seemed unable to remain focused on completing the assignment. The student easily transitioned to the classroom for the second half of the lesson. When called upon to read his work out loud, the student refused to do so, indicating that he was embarrassed because he did not complete the assignment. Despite encouragement from his peers and teacher, the student continued to refuse to read his work. The school psychologist indicated that the student was easily distracted, and tended to become involved in unrelated activities or stimuli around him. She further indicated that the student was able to perform when given much structure and intervention in pressure-free situations. She noted that the student had interacted with only one classmate.

        The CSE met on October 7, 1998. It recommended that respondents’ son not be classified as a child with a disability because he was functioning above his grade level and did not require special education (Exhibit 7). Respondents disagreed with the CSE’s recommendation. On October 30, 1998, they requested an impartial hearing, which was held on June 22, August 3, and October 14, 1999. The hearing officer rendered her decision on November 5, 1999. She held that the Board of Education had failed to meet its burden of proving the appropriateness of its CSE’s recommendation that the student not be classified. She found that the student had difficulty organizing, processing, and conveying what he understands, and that he had specific difficulty with written language, attention, and executive functioning, as well as with peer interactions due to a "social learning disability." The hearing officer concluded that the student should be classified as learning disabled. Additionally, she found that respondents had satisfied their burden of proving the appropriateness of the program at Winston Prep for the student, and that equitable considerations supported their claim for tuition reimbursement. Accordingly, the hearing officer granted respondents’ request for tuition reimbursement for the 1998-99 school year.

        The Board of Education asserts that the hearing officer erred in finding that the student was learning disabled, and it argues that a social learning disability is not recognized as one of the classifications under the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA). It also argues that the student manifested the same conditions in the 1998-99 school year as he did in the previous school year, when I found that he did not meet the criteria for classification as a child with a disability. It further argues that the student’s current evaluations are consistent with his previous evaluations and that his performance at Winston Prep was consistent with his performance in the public school. Petitioner further claims that the student’s condition does not adversely impact upon his ability to succeed academically in a general education program.

        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). In order to be classified as a child with a disability under federal regulation (34 CFR 300.7[a][1]), or its state counterpart effective at the time of this proceeding (8 NYCRR 200.1[mm]), a student must not only have a specific physical or mental condition, but such condition must adversely impact upon the student'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).

        In determining whether the student meets the criteria for classification as a child with a disability, I must base my decision upon the record which is before me. The record in this appeal includes certain information which was not in the record of the previous appeal. First, I note that a psychiatrist who began treating the student in the summer of 1997 and who did not testify in the prior proceeding did testify in this proceeding. She testified that the student’s ADD was severe, and she believed that he would have difficulty in a large class setting, especially with regard to completing written assignments (Transcript p. 173). The psychiatrist noted that the student continued to experience occasional anxiety when faced with writing assignments, despite receiving tutoring on a daily basis and much individual attention in the small, supportive setting provided by Winston (Transcript p. 177). The psychiatrist further testified that due to his ADD, the student did not pick up on social cues, which tended to alienate others. She stated that the student would offend his classmates by interrupting them and that he would not know when to stop talking (Transcript p. 178). As a result, he was teased and ostracized by his classmates, and often became the scapegoat (Transcript p. 172). The psychiatrist described the boy as having a great number of violent fantasies. She opined that he needed a safe, emotional setting because he was so fragile and needy he would become panicky and shut down if threatened (Transcript p. 178).

        The present record also includes the results of a new evaluation by a CSE school psychologist. In her report, petitioner’s psychologist noted the student’s cognitive functioning was lower in August, 1998 than when he was previously evaluated in February and March 1997. His verbal IQ score declined from 124 to 111. The psychologist noted that inter-test scatter of scores suggested that the student’s cognitive skills were probably much higher than her testing indicated, and she opined that his anxiety and impulsivity, in addition to attentional and emotional factors, had depressed some of his scores. She further noted that the student had difficulty focusing on the demands of a task, and that he was easily distracted by details. The psychologist reported that the student continued to feel socially isolated and different from his peers, while noting his poor social skills and tendency to lash out at and disparage others. I note that she recommended a supportive and structured environment for the student, while the CSE psychologist who had evaluated the student in the prior proceeding had recommended that he receive only group counseling and test modifications. In addition, there is a new educational evaluation by a CSE educational evaluator who noted that the student appeared to have some difficulty orally expressing himself because of his intense thought processing activities, and that he might require repetition of information presented to him because of his anxiety to do extremely well in school. The educational evaluator also suggested that the student would benefit from a placement which took into account the student’s need to work at a slower pace.

        Respondents’ son has been diagnosed as having ADD and depression. The record shows that his IQ was in the high average range, and that he performed above grade level on standardized tests in most subjects. However, there were delays in his written expression. The record also shows that the student received above average grades at Winston Prep. As petitioner points out, those grades were comparable to the grades he received when he attended public school. However, the record further shows that despite taking medication for ADD and being in much smaller classes at Winston Prep than in the public schools, the student continued to be highly distractible and exhibit other difficulties because of his ADD. The Head of Winston Prep testified that the student’s attention difficulties complicated his ability to perform up to his intellectual potential in the classroom (Transcript p. 127). He further testified that it was very difficult for the student to organize and process information, and convey what he understood (Transcript p. 128). The Head of Winston Prep opined that the student’s ADD affected almost every aspect of his school experience from listening to lectures, to expressing himself, to interacting with his peers (Transcript p. 133).

        The hearing officer found that the student had a disability for which he required special education services and programs, and she determined that he should be classified as learning disabled. The Board of Education contends that the hearing officer erred because respondents’ son did not manifest a significant discrepancy between his expected and actual achievement (see 34 CFR 300.7 [10]; 8 NYCRR 200.1 [mm][6]). While the student’s cognitive ability, and therefore his expected achievement, may have been higher than was indicated in his October 1998 IQ test results, I must agree with petitioner that the student did not manifest a significant discrepancy between expected and actual achievement. Therefore, I cannot support the hearing officer’s determination that the student was learning disabled, as that term is defined by federal and state regulation. I also agree with petitioner that that a "social learning disability" is not one of the defined classifications. Neither the CSE nor the hearing officer was at liberty to create a new classification (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-6). However, that is not dispositive of this appeal.

        A student who has ADD may be classified as other health impaired (Application of the Board of Education of the Wappingers Central School District, Appeal No. 97-24). An other health impaired child means:

A student who is physically disabled and who has limited strength, vitality or alertness due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes or tourette syndrome, which adversely affects a student's educational performance. (8 NYCRR 200.1[mm][10])

        I find that the student’s ADD adversely affected his educational performance. It impacted his ability to express himself, especially with respect to writing assignments, as well as in simple two-way conversations. It also affected his ability to relate to his peers in a regular classroom setting. Petitioner’s psychologist and educational evaluator both recognized that the student had certain needs which could not be effectively addressed in a regular classroom setting. I find that the student met the definition of an other health impaired child.

        Petitioner also appeals from the hearing officer’s award of 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). 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550[b]; 8 NYCRR 200.6[a][1]). The CSE did not classify the student, and therefore did not recommend a special education program. Accordingly, I find that respondents have prevailed with respect to the first criterion for tuition reimbursement.

        With respect to the second criterion for tuition reimbursement, the student’s parents bear the burden of proof with regard to the appropriateness of the services which they obtained for their son at Winston Prep 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, the parents must show that the services were proper under the IDEA (Burlington, supra 370), i.e., that the private school offered an educational program which met the student’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 student (Application of a Child with a Disability, Appeal No. 94-20).

        As noted above, respondents’ son was highly distractible, and had deficits in some of his writing skills, and in his ability to interact appropriately with other students. The record shows that the student required a supportive, structured environment (Exhibit 12, Transcript pp. 128 and 173). The Head of Winston Prep testified that there were approximately 83 students enrolled in grades six through 12 during the 1998-99 school year. About one-half of the students had been classified as learning disabled (Transcript p. 125). The student’s classes consisted of six to eight students, with as many as three adults (Transcript p. 136). Writing skills and the writing process were taught together as a double period each day in a language skills and literature class, during which smaller groups were often created to work on specific skills, such as writing mechanics (Transcript p. 138). The school utilized a multi-sensory methodology for its reading and language curriculum combined with teacher generated and adapted materials (Transcript p. 139). The Head of Winston Prep testified that because of the school’s low student to teacher ratio, it was able to provide the academic, behavioral and social feedback that the student required to address his ADD and social/emotional issues (Transcript p. 129). Additionally, he stated that four times per week, the students are required to take a course in socialization and communication skills, a focus of the curriculum (Transcript p. 130). Winston Prep had two psychologists on staff who worked with the student and with his teachers (Transcript p. 142). The student’s psychiatrist testified that his attitude about school was quite negative when she first began treating him in 1997, but that he now loved school (Transcript pp. 172, 177). She further testified that the student was very fragile and required a safe emotional setting (Transcript p. 178). Based upon the information before me, I find that Winston Prep offered an educational program which met the student’s academic and social/emotional needs. Consequently, I find that respondents have prevailed with respect to the second criterion for an award of tuition reimbursement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents’ claim. There is no indication in the record that respondents failed to cooperate with the CSE. I find that respondents have met their burden of proof with respect to the third criterion for tuition reimbursement. Since they have prevailed with respect to all three criteria for an award of tuition reimbursement, I find that they are entitled to receive such an award, as directed by the hearing officer.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that she found that the student should be classified as learning disabled; and

IT IS FURTHER ORDERED that the student be classified as other health impaired.