00-001

        Petitioner appeals from an impartial hearing officer's decision finding that petitioner was not entitled to an award of tuition reimbursement for her son’s attendance at the Stephen Gaynor School (Gaynor) during the 1998-99 school year. The hearing officer determined that the boy was not a child with a disability as that term is used in the Individuals with Disabilities Education Act (IDEA), or its State counterpart, Article 89 of the Education Law. Respondent purports to cross-appeal from the hearing officer’s decision to the extent that it incorporates the earlier decision by another hearing officer who found that respondent’s committee on special education (CSE) had failed to fully evaluate the boy before recommending that he not be classified as a child with a disability. The appeal must be dismissed. The cross-appeal must be dismissed.

        Petitioner’s son is thirteen years old. He attended the City and Country School for kindergarten through the 5th grades (Exhibit 10). At that school, which is a private, regular education school, the child was instructed in classes of 10 to 13 students (Transcript p. 110). He was also reportedly tutored by a learning disabilities specialist twice per week at the school, and received outside tutoring three to four times per week (Ibid.). Petitioner testified that she was advised by the private school that it would not offer her son what he needed, and that he needed a special education school. Her son was not allowed to return to that school for the 1998-99 school year for the sixth grade (Exhibit E).

        The child was referred to the CSE for evaluation and recommendations. In the child’s social history, petitioner reported that her son was having difficulty with his graphomotor (handwriting) skills, and with mathematics. She also indicated that the boy had some trouble comprehending what he had read, and difficulty incorporating the skills he needed to succeed in school. She also reported that he had once needed glasses, but no longer needed them (Exhibit 10).

        On May 30, 1998, petitioner’s son was evaluated by a school psychologist, who reported that the boy manifested signs of anxiety and stress while performing some perceptual motor or graphomotor tasks. The child achieved a verbal IQ score of 107, a performance IQ score of 98, a full scale IQ score of 103, all of which were in the average range. He also achieved a score within the average range on a test of his visual motor integration skills. However, the psychologist reported that many of the boy's figures were crudely drawn, and that his writing sample and drawings showed spatial distortions and inconsistencies, as well as signs of emotional pressure. The psychologist described the child as well adjusted and emotionally secure, but displaying some signs of low self esteem and expectation of failure when performing certain tasks. He opined that the boy’s difficulty with writing tasks and minor academic deficits could be remediated through direct instruction in small groups (Exhibit 11).

        An educational evaluation was also performed on May 30, 1998. The child, who was in the 5th grade, achieved scores at the beginning sixth grade level for letter-word identification, and at the high sixth grade level for passage comprehension on the Woodcock-Johnson Psycho-Educational Battery-Revised (WJ-R). His scores on the WJ-R. for mathematical calculation and applied problems were also at the beginning sixth grade level. The boy’s scores on the WJ-R humanities, science and social studies subtests were also reported to be in the above average range. The evaluator asked the boy to write a paragraph on a favorite subject. Although the boy communicated his ideas clearly in the paragraph, his letters were poorly formed. He also made a few spelling errors. The evaluator indicated that although the boy’s standardized test scores indicated that he was performing in the above average range, there were nevertheless "issues of concern". Three issues were identified: his inability to write adequately formed numbers and letters, his inability to keep his mathematics problems lined up on paper, and his poor organization skills (Exhibit 9).

        The child had been observed to have some difficulty making a transition from a period of organization and preparation of materials to a math lesson at the City and Country School in May, 1998. The observer noted that the boy appeared to require more of his teacher's attention than did the other students (Exhibit 14).

        The CSE did not perform a medical evaluation of the student. It apparently asked petitioner to provide a report by her child’s pediatrician. In any event, the CSE did not have the report of a physical examination of the child when it convened on June 25, 1998. It recommended that the boy not be identified as a child with a disability, while apparently noting that petitioner could ask for an occupational therapy evaluation in the fall of 1998 (Exhibit 14). I note that in a subsequent occupational therapy screening conducted in September 1998, deficits were found in the boy’s visual motor integration and visual perceptual skills. He reportedly did not use his hand muscles to control the pencil when writing (Exhibit A).

        Petitioner unilaterally placed her son in Gaynor for the 1998-99 school year. She also requested an impartial hearing to review the CSE’s recommendation. The hearing began in October 1998 and ended in March 1999. In a decision dated April 9, 1999, the hearing officer found that respondent had failed to meet its burden of proving the appropriateness of the CSE’s recommendation not to classify the child because it had failed to obtain a report of a physical examination, as required by 8 NYCRR 200.4 (b)(1)(i). She also found that the CSE’s evaluation of the boy should have included an occupational therapy evaluation. The hearing officer declined to order respondent to reimburse petitioner for the cost of her son’s tuition at Gaynor for the 1998-99 school year because the threshold of whether the boy was a child with a disability had yet to be determined (Application of a Child Suspected of Having a Disability, Appeal No. 97-55). She remanded the matter to the CSE with a direction that it obtain a report of a physical examination and perform an occupational therapy evaluation before reconsidering its recommendation. The hearing officer also indicated that petitioner could seek review of the CSE’s new recommendation in a new due process proceeding (Exhibit 14). Neither party appealed from the hearing officer’s decision, which is final and binding upon both parties (34 CFR 300. 510[a]; 8 NYCRR 200.5[c][11]).

        On April 20, 1999, the boy’s physician reported that the child’s vision and hearing were normal, and that his gross motor skills were within normal limits. The physician did not assess the child’s fine motor skills, but recommended an occupational therapy evaluation to assess his fine motor skills, coordination, and proprioceptive skills (Exhibit 3). The child’s occupational therapy evaluation was performed on May 7, 1999. The evaluator reported that the boy’s range of motion, muscle strength, and muscle tone were satisfactory, and his general gross motor planning was good. He completed all of the fine motor tasks he was given during the evaluation. The evaluator reported that the child displayed adequate pencil control, but his graphomotor skills were weak. His handwriting was better than his printing. Although the child could accurately form and space letters, he manifested a high level of frustration and anxiety while writing. The evaluator recommended that occupational therapy be provided on a consultant basis for one year to assess any problem the child might have with sensory motor processing or an impairment of his visual perceptual skills which could affect his graphomotor skills (Exhibit 2).

        Respondent’s CSE reconvened on May 25, 1999. Petitioner attended the meeting. In addition to reports from the child’s physician and the occupational therapy evaluator, the CSE had a report by the child’s teacher at Gaynor and an observation report by one of the school district’s educational evaluators. In a report dated March 1, 1999, the Gaynor teacher noted that the boy was receiving occupational therapy and speech/language therapy once per week. She estimated that he was reading at a grade equivalent of 4.5-5.0, and indicated that he had difficulty with inferential comprehension and getting the details. The teacher estimated that the boy’s math skills were at a 3.0 grade equivalent, with weaknesses in time concepts and word problems. She estimated that his spelling skills were at a 3.6 grade equivalent. The teacher reported that the boy had difficulty forming and spacing letters when writing, and that he had difficulty accepting adult authority (Exhibit 6).

        The district educational evaluator observed the boy at Gaynor for 40 minutes during a writing period and a snack period on March 1, 1999. She reported that the child was generally on task, and that the story which he wrote was more developed and had better sentence structure that that of a classmate. However, she indicated that he had significant delays in his written communication skills because of poorly formed letters and erratic spacing, as well as deficits in spelling and punctuation (Exhibit 8).

        The CSE concluded that the boy’s educational needs could be met in a general education program, and that he did not require any special education or related service. The CSE’s determination was set forth in an individualized education program (IEP) which included an annual goal to improve his graphomotor skills (Exhibit 1). The goal was reportedly prepared by the occupational therapist who had evaluated the boy (Transcript p.53). Petitioner requested a hearing to obtain an award of tuition reimbursement for the 1998-99 school year on or about June 3, 1999. The hearing was adjourned by agreement on three occasions, and did not begin until October 27, 1999. It also concluded on that day.

        The hearing officer rendered her decision on November 23, 1999. She noted that 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 hearing officer found that the Board of Education had not met its burden of proving that it had provided a free appropriate education to petitioner’s son during the 1998-99 school year. She did so by "… giving due consideration to the prior hearing officer’s decision in the same matter". However, the hearing officer further found that petitioner’s son did not meet the requirements for classification as a learning disabled child under Federal or State law because he did not exhibit 50% discrepancy between his expected and actual achievement. She also found that petitioner could not establish that Gaynor had provided an appropriate educational program for the boy because it was not the least restrictive environment. Petitioner’s request for an award of tuition reimbursement for the 1998-99 school year was denied by the hearing officer.

        Although the parties have raised a number of issues, I find that the central issue is whether petitioner’s son was eligible for classification as a child with a disability during the 1998-99 school year. Unless the boy was eligible for classification, petitioner cannot assert her claim for tuition reimbursement pursuant to the IDEA (20 USC 1400 et seq). 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). I note that there were two determinations of ineligibility by the CSE. The first determination was the subject of the prior proceeding. I do not review the hearing officer’s determination in that proceeding because the decision was not appealed. The CSE’s second determination was made on May 25, 1999, and is the subject of this appeal.

        In its cross-appeal, respondent asserts that the hearing officer erred in giving effect to the prior hearing officer’s decision when finding that respondent had not met its burden of proof. It contends that the CSE’s omission of a physical examination and an occupational therapy evaluation had been rectified before the hearing officer even assumed jurisdiction in this proceeding, as evidenced by Exhibits 2 and 4. I must nevertheless point out that the hearing officer did not in fact hold that respondent was precluded from arguing or proving that the child should not have been classified. Indeed, she ultimately held that respondent had prevailed with respect to the issue of classification. Respondent’s cross-appeal must be dismissed as moot.

        Petitioner argues that her son was clearly learning disabled. She raises three procedural objections to the CSE’s determination. Petitioner asserts that there is no proof that the CSE attempted to contact her son’s teacher or any other representative of Gaynor so that the teacher or representative could participate in the CSE meeting. However, she does not identify any legal requirement that the CSE do so. I must also note that the child’s teacher at Gaynor had provided a written report of the boy’s needs and attainments to the CSE (Exhibit 6).

        Petitioner also asserts that it was inherently prejudicial for the CSE to have characterized its meeting as a "Carter/Annual Review" (Exhibit 5). That designation was one of a number of possible designations to be checked off on the "CSE REVIEW CONFERENCE SUMMARY" form. The CSE representative at the hearing was uncertain why the designation appeared on the form. However, I find that petitioner’s assertion is without merit.

        Petitioner also asserts that the CSE did not vote at its meeting, and that its members inappropriately met with their supervisors about the matter without her. The issue of whether a CSE must vote is currently the subject of litigation (see Application of Sackets Harbor Central School District v. Munoz et al., Supreme Court Albany County, Index No. 2527/00, Kane, J., September, 8, 2000, appeal pending). In any event, petitioner acknowledged at the hearing that she was advised of the CSE’s determination at the meeting, and she does not now allege that the CSE’s recommendation did not reflect the will of its members. Two members of the CSE testified at the hearing that they had met with their supervisors to discuss the child’s case (Transcript pp. 42, 60). They testified that they did so because they were concerned about the occupational therapy evaluator’s recommendation for that therapy, despite the absence of evidence that the child needed special education. A CSE is a multi-disciplinary team including the child’s parents which has the task of determining whether a child meets the criteria for classification, and, if so, what services the child requires. A CSE may seek input from a number of sources, but in the end must make its own decisions. Although there is no evidence in the record that the CSE members were directed by their supervisors to reach a particular conclusion, I must caution respondent to ensure that its CSE’s refrain from practices which give even the appearance of impropriety. Consultation with school district staff should be done, whenever possible, at CSE meetings, so that the parents can participate in such consultation. I will not, however, annul the CSE’s recommendation on this ground.

        Petitioner argues that the CSE’s recommendation that her son not be classified is contrary to the evidence in the record. She asserts that the CSE ignored the report of its own educational evaluator in May 1998 (Exhibit 9). As noted above, the evaluator identified three "issues of concern": the child’s inability to write adequately formed numbers and letters, his inability to keep his math problems lined up on paper, and his poor organizational skills. Petitioner further asserts that the CSE also overlooked the report by its evaluator who had observed her child at Gaynor on March 1, 1999 (Exhibit 8). The evaluator indicated that the boy’s writing and spelling skills were at the third grade level. Petitioner also relies upon testimony by the Assistant Director of Gaynor and her son’s teacher at that school. The Assistant Director testified that when she screened the boy for admission in April 1998, she found that his silent reading skills and his math skills were at the third grade level, while his spelling skills were at the pre-primary level (Transcript pp. 77-78). The teacher testified that petitioner’s son was very disorganized, needed to have instructional material broken down, and had attention and motor skill difficulties.

        In her decision, the hearing officer noted that there was a significant discrepancy between the academic achievement levels reported by Gaynor’s Assistant Director and the teacher, and those which the CSE’s educational evaluator reported approximately one month after the admission screening at Gaynor. She also noted that the Assistant Director had informally assessed the boy’s skills with certain test instruments, and that the teacher had not provided a basis for her own estimates of the boy’s skills. I have also reviewed the testimony and the exhibits, and I find that there is no credible basis for me to disregard the standardized test results for reading and math reported by respondent’s educational evaluator in May, 1998. The educational evaluator did not report a grade equivalent score for the boy’s spelling, but she did indicate that there were a few spelling errors in his writing sample. That sample is not in the record. The education evaluator who observed the boy at Gaynor reported that his spelling and punctuation skills were "quite delayed". The evaluator referred to a sample of the child’s writing which was attached to her report. I note that the sample is not in the record. However, there is an undated writing sample in the record (Exhibit 13). Although the boy appears to have some difficulty with spelling, I am not persuaded by the record before me that the boy’s spelling skills were so deficient as to afford a basis for concluding that there was a significant discrepancy between his actual and expected achievement, which would be necessary to support a classification as learning disabled.

        The record does demonstrate that the boy had difficulty properly forming letters and numbers, and keeping numbers in columns for math. The letters and words in his writing sample were evenly spaced, and the letters were, on the whole, accurately formed. I note that the occupational therapist who evaluated the child in May, 1999 indicated that petitioner’s son could correctly form letters using accurate spacing (Exhibit 2). The occupational therapist recommended that the boy’s teaching team take steps to alleviate the child’s anxiety and not over emphasize his writing skills as long as his writing was legible. The suggested consultant services were intended to assess any sensory motor or visual perceptual problem blocking the boy’s handwriting skills. However, the evaluator did not identify a specific problem to be addressed. Despite references in the record to the boy having some organizational problems, I find that those problems are not adequately identified.

        In order to be classified as a child with a disability under Federal or State regulation, 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 requires special education and related services ( 20 USC 1401[3][A]; Section 4401 [1] of the Education Law; 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 am unable to find on the record which is before me that petitioner’s son required special education. Therefore, I must uphold the hearing officer’s determination that he was not eligible for classification as a child with a disability.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.