00-026

         Petitioner, the Board of Education of the Somers Central School District, appeals from an impartial hearing officer's decision which held that the individualized education program (IEP) which petitioner's committee on special education (CSE) prepared for respondents' son for the 1999-2000 school year was fatally flawed, and which awarded respondents tuition reimbursement for the cost of the boy's tuition and fees for attending the Landmark School (Landmark) during that school year. Respondents purport to cross-appeal from the hearing officer's decision to the extent of seeking additional reimbursement for their expenditures associated with unilaterally placing their son at Landmark. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Respondents' son is 17 years old, and was in eleventh grade during the 1999-2000 school year. He attended petitioner's Primrose Elementary School for kindergarten, first, and second grades. The boy reportedly had difficulty reading in the early grades. In the middle of the second grade, the child was evaluated by a resource room teacher, who noted that the child appeared to have a learning disability which affected his ability to read and spell. While in the third grade at the Somers Intermediate School during the 1991-92 school year, the boy was referred to the CSE. The school psychologist who evaluated him reported that the child had achieved a verbal IQ score of 124, a performance IQ score of 112, and a full scale IQ score of 121, indicating that he was functioning in the superior range. Nevertheless, there was an extensive pattern of inter-test scatter evidencing a learning disability. The school psychologist reported that the boy manifested difficulties in both visual and auditory memory functioning, and she recommended that he receive resource room services (Exhibit P-A). Respondents' son was classified by the CSE as learning disabled, and he received resource room services for the remainder of the third grade.

        At the end of the third grade, the boy and his parents moved to Pawling, New York. He was placed by his parents in the Kildonan School for the fourth, fifth, and sixth grades. The Kildonan School is a private school for learning disabled children. It has not been approved as a school for children with disabilities by the State Education Department.

        The child resumed residency in petitioner's school district, and attended its schools for the seventh grade during the 1995-96 school year. He was evaluated by a school psychologist in September, 1995. She reported that the boy had achieved a verbal IQ score of 111, a performance IQ score of 104, and a full scale IQ score of 108. The school psychologist noted that the child had been diagnosed as having an attention deficit disorder (ADD), and was taking Ritalin for his ADD. The child exhibited a significant weakness in his auditory attention skills, as well as visual motor perceptual difficulties. On the Wide Range Achievement Test – Revised, the boy's reading skills were assessed to be at the end of fifth grade level. His spelling skills were found to be below the third grade level. The child's math skills were at the end of seventh grade level (Exhibit D-11). Respondents' son was again classified as learning disabled and provided with resource room services. In January, 1996, his resource room services were increased to two periods per day. Despite 26 days of absence from school, the boy passed all of his seventh grade courses (Exhibits D-2 and D-3). In the Spring of 1996, the boy achieved grade equivalent (and percentile) scores of 6.9 (31) for total reading, 8.7 (49) for total math, and 3.2 (1) for spelling (Exhibit X).

        The child attended petitioner's Somers Middle School for the eighth grade during the 1996-97 school year. The CSE had recommended that he continue to receive two periods of resource room services per day, as well as counseling on an as needed basis. The boy's IEP for the 1996-97 school year indicated that he was to have the use of a word processor and a calculator, and the testing modifications of extended time limits, special location, directions and questions read to him and his answers recorded in any manner (Exhibit P-X). The IEP also indicated that the boy was still taking Ritalin twice a day to address his ADD. School attendance records reveal that respondents' son was absent from school for 32 days during the 1996-97 school year (Exhibit D-6). At the hearing, the boy's mother testified that her son became increasingly anxious about coping with his school work, which resulted in him becoming ill on various occasions during that school year. The boy's resource room teacher testified that the child's absences made it more difficult for her to work on remediating his skill weaknesses. The boy passed all of his eighth grade courses, but had final averages in the 60's for math and modified English (Exhibit D-5). He achieved grade equivalent (and percentile) scores of 7.5 (37) for total reading and 7.5 (34) for total math on the standardized tests which were administered to him in the spring of 1997 (Exhibits D-8 and 34).

        For the 1997-98 school year, the CSE recommended that respondent's son be instructed in ninth grade "inclusion" classes, except for a self-contained class in Global Studies, in the Somers High School (Exhibit D-8). It also recommended that the boy receive individual counseling once per week. The boy's IEP indicated that he was not then taking Ritalin, but his need for that medication would be assessed by a neurologist. I note that the boy was seen by a neurologist on June 24, 1997. The neurologist reported that the boy's examination was normal, but that the child had a specific learning disability, was frustrated, and had a poor self-image (Exhibit D-10). She indicated that the boy was receiving counseling to help him deal with his parents’ divorce. However, she did not address the issue of whether the boy should resume taking Ritalin. The boy's IEP also indicated that he would be placed in a high school reading program, which was not a special education program, for additional help in reading, and that his teachers should not hold him accountable for his spelling.

        At the request of his mother, the boy was re-evaluated by a school psychologist in August, 1997. The school psychologist noted that the boy was easily distracted. He achieved a verbal IQ score of 98, a performance IQ score of 90, and a full scale IQ score of 93 on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III). His freedom from distractibility score of 75 was in the borderline range. Noting that the boy's IQ scores were lower than those he had achieved in prior testings, the school psychologist opined that the lower scores might reflect the fact that the boy was no longer taking Ritalin. He continued to manifest a significant weakness in short-term auditory memory, which the psychologist noted could impact upon his ability to retain verbally presented information in the classroom. The boy performed poorly on tasks requiring spatial analysis, visual-motor coordination, dexterity and non-verbal concept formation. The school psychologist also reported that respondents' son manifested poor graphomotor (handwriting) skills. His social aptitude was well developed, but he appeared to be a candidate for counseling with regard to family relationships (Exhibit D-7).

        On September 5, 1997, one of petitioner's special education teachers completed an educational evaluation of respondents' son. The evaluator noted that the boy had achieved grade equivalent (and percentile) scores of 7.2 (57) for reading comprehension and 6.1 (24) for vocabulary on the Metropolitan Achievement Testing Reading in 1996, and had achieved grade equivalent (and percentile) scores of 7.8 (41) for comprehension and 6.8 (29) for vocabulary on that test in 1997. His total math scores on that test declined from a grade equivalent of 8.7 in 1996 to 7.5 in 1997. On the Test of Written Language-2 which was administered in August, 1997, the boy achieved below average skills for vocabulary, spelling, thematic maturity, contextual vocabulary, syntactic vocabulary, and contextual spelling. His overall written language score of 85 was described as poor. The evaluator recommended that he be placed in the high school inclusion program, with counseling and support for completing his assignments (Exhibit D-34).

        The boy was unilaterally enrolled by his parents in the Kildonan School for the 1997-98 school year. His parents and the Board of Education ultimately reached a settlement about the cost of that placement. In September, 1997, a private psychological evaluation of the child was completed. The private psychologist, who was unaware at the time that the school psychologist had recently administered the WISC-III to the boy, also used the WISC-III in her evaluation. She reported that he had achieved a verbal IQ score of 101, a performance IQ score of 106, and a full scale IQ score of 104, with a freedom from distractibility score of 84. The private psychologist indicated that she was aware of the boy's developmental and medical history, but did not refer to his prior use of Ritalin for ADD. She did indicate that there was "some evidence of a mild attentional deficit." In any event, she opined that the boy's full scale IQ score was not a valid estimate of his general capacity because of the extensive variability of the boy's subtest scores. The psychologist reported that the boy's primary auditory processing and receptive language skills were quite deficient, as was his visual scanning. On the Wechsler Individual Achievement Test, respondents' son achieved grade equivalent (and percentile) scores of 5.5 (13) for basic reading, 11.3 (58) for reading comprehension, 8.1 (42) for numerical operations, 10.8 (63) for mathematics reasoning, 1.2 (2) for written expression, and 3.4 (1) for spelling. The private psychologist concluded that respondents' son was in need of intensive academic remediation addressing basic skills and higher level content. She recommended he be educated in a small group, with 1:1 instruction using a multi-modal approach for reading and writing (Exhibit P-C).

        Respondents' son did well at Kildonan School during the 1997-98 school year, according to his teachers (Exhibits D-18, P-H). He was tested by the private school in August, 1998. He achieved grade equivalent (and percentile) scores of 8.7 (40) for vocabulary and 6.3 (21) for comprehension on the Gates-McGinitie Reading Test. His spelling skills were reported to be at an end of second to beginning of third grade level. On the Stanford Math Achievement Test, he achieved grade equivalent (and percentile) scores of 5.0 (2) for computation, and 10.3 (59) for application (Exhibit P-6). I note that the record reveals that the standardized tests were administered on an untimed basis at the Kildonan School.

        At its annual review on June 3, 1998, petitioner's CSE recommended that respondents' son attend inclusion classes for science, math and English, and a special education class for social studies in petitioner's high school for the 1998-99 school year. It further recommended that he participate in the high school's "Learning Center", and attend a reading class on alternate days, with the related service of individual counseling once per week (Exhibit D-21). Respondents did not accept the CSE's recommendation, and they enrolled the boy in the Kildonan School for the 1998-99 school year. The parents and the Board of Education entered into a settlement agreement for the 1998-99 school year, the terms of which are not disclosed in the record.

        The boy's teachers at Kildonan School reported that he did well there (Exhibits D-26, P-I, P-FF). In May, 1999, the boy achieved grade equivalent (and percentile) scores of 8.1 (21) for vocabulary, and 8.7 (32) for comprehension on the Gates-McGinitie Reading Test. His spelling skills were reported to be at a late third grade level. The boy's math computation skills were apparently not assessed, but his application skills were found to be at the 6.5 grade equivalent (9^th percentile) (Exhibit D-23).

        The boy's annual CSE review was held on June 11, 1999. The CSE recommended that respondents' son remain classified as learning disabled. It also recommended that he be enrolled in inclusion classes for English and math, and a special education class with a 12:1 student to teacher ratio for social studies, in the Somers High School for the 1999-2000 school year. The IEP prepared by the CSE indicated that he would participate in the high school's Learning Center program for one period per day, and would also be enrolled in a reading class "to work on his language arts skills". The CSE recommended that the boy receive counseling on an as needed basis. The boy's IEP testing modifications included doubled time limits, having test directions and questions read to him, the use of the spell check feature with a word processor, writing long answers on a computer, the use of a calculator, and using a special location to take tests. The IEP included annual goals for social studies, written language, English, and study skills (Exhibit D-24).

        By letter dated June 23, 1999, the boy’s mother informed the CSE that she disagreed with its recommendations, and indicated that she intended to continue the boy’s placement at Kildonan. She requested an impartial hearing (IHO Exhibit 1). The hearing began on September 13, 1999. At the outset of the hearing, the boy’s parents indicated that they had enrolled the boy in Landmark, which is a private school for students with language based disabilities. It is located in Prides Crossing, Massachusetts. I must note that although a Landmark representative testified at the hearing in this proceeding that the school was on the New York State Education Department’s list of approved private schools, he was in fact referring to the Department’s emergency interim placement procedure, rather than to a general approval which would allow school districts in New York to contract with it pursuant to Section 4402 ( 2) of the Education Law.

        During the hearing, petitioner asked a private psychologist to review the boy's educational records and his proposed IEP for the 1999-2000 school year. The psychologist reported that the boy appeared to have a phonological processing disorder which impeded his ability to analyze and synthesize words in a rapid and automatic fashion. He indicated that the boy's disability had been difficult to remediate, as evidenced by his relative lack of progress, especially at the Kildonan School. The psychologist opined that the educational program recommended by the CSE was appropriate for respondents' son because it would have provided intensive individualized instruction to him, while maintaining the boy in the least restrictive environment. While noting that the standardized test scores reported on the boy's IEP did not reflect more recent testing than 1997, the psychologist nevertheless opined that the IEP goals and objectives were appropriate for the boy (Exhibit D-36).

        The hearing concluded on January 14, 2000. In his decision which was rendered on February 24, 2000, the hearing officer noted that the Board of Education bore the burden of demonstrating that it had offered to provide an appropriate educational program to respondents’ son (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). He found that petitioner had not met its burden of proof because of defects in the boy’s IEP for the 1999-2000 school year. The hearing officer found that the IEP did not reflect the boy’s present levels of performance, as required by 34 CFR 300.347 (a)(1), and that it did not include measurable criteria to be used in assessing the boy’s progress in achieving his short-term instructional objectives, as required by the former 34 CFR 300.346 (a)(5). He further found that the objectives were written as annual goals, rather than intermediate steps between the boy’s present levels of performance and the levels to be attained upon completion of the goals.

        The hearing officer also found that the IEP was inadequate because it did not address the boy’s school absence problem. He determined that Landmark offered an appropriate educational program to respondents’ son, and that his placement at Landmark was consistent with the requirement that each child with a disability be placed in the least restrictive environment. The hearing officer further found that the parents’ claim for an award of tuition reimbursement was supported by equitable considerations. The hearing officer directed the Board of Education to reimburse the boy’s parents for the their expenditures for his placement at Landmark, including tuition, residential fees, and transportation on the least expensive public transportation.

        The Board of Education challenges the hearing officer's findings with regard to the adequacy and appropriateness of the IEP which the CSE had prepared for respondents' son on June 11, 1999. A 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        The first issue to be decided is whether the boy's IEP accurately identified his special education needs and described his current level of educational performance. The IEP indicated that the boy had a language-based disability which affected his ability to read and write, which I find to be consistent with the results of his evaluations. An IEP must include a statement of the student's present levels of performance (34 CFR 300.347; former 8 NYCRR 200.4 [c][2][i], now 8 NYCRR 200.4 [d][2][i]). The State regulation requires that an IEP indicate the student's present levels of performance with regard to academic achievement, social development, physical development, and management needs. The hearing officer found that the most recent academic achievement reported on the IEP was from 1997, and he held that the 1997 standardized test results did not afford a reasonable basis to plan the boy's educational program for the 1999-2000 school year.

        The Board of Education contends that the information which appeared on the boy's IEP was taken from his most recent triennial evaluation. It asserts that since it was not required to re-evaluate the boy until September, 2000, the CSE could rely upon the 1997 evaluation data. Petitioner also asserts that its CSE was justified in not including the more recent standardized test results from the Kildonan School in 1998 and 1999 because the tests were administered on an untimed basis and the results were allegedly based upon outdated norms. While I agree with petitioner that a CSE need not evaluate a child with a disability more frequently than once every three years, it does not follow that it may prepare IEP annual goals and short-term objectives on the basis of two-year old data. The primary purpose of the triennial evaluation requirement is to ensure that a child who has been classified as a child with a disability remains eligible to be so classified (8 NYCRR 200.4 [e][4]). Each time a CSE prepares an IEP it must draft annual goals, which are statements that describe what the child can reasonably be expected to accomplish within a twelve-month period (former 34 CFR Part 300, Appendix C, Question 38). In order to prepare measurable annual goals, a CSE must have reasonably current information about a child's present levels of academic achievement. I note that petitioner's outside expert, Dr. James Lennon, suggested in his report that petitioner "should consider updating assessment scores in [the boy's] area of disability." (Exhibit D-36) While I have considered petitioner's argument about the alleged unreliability of the test results from the Kildonan School, I find that it is an overstatement, and it would not in any event relieve the CSE of its responsibility to obtain accurate and current information.

        The Board of Education also disputes the hearing officer's determination that the boy's IEP did not include measurable criteria for determining the achievement of his IEP goals. The hearing officer found that the IEP set forth "fairly specific objectives to be achieved in quantifiable terms", but it did not include a schedule for ascertaining when the objectives were to be met. He also found that the IEP's short-term objectives were written as annual goals. I note that the former 34 CFR 300.346 (a)(5) required that an IEP include appropriate objective criteria and evaluation procedures and schedules for determining on at least an annual basis whether a student's short-term objectives were being achieved. Effective May 11, 1999, the new 34 CFR 300.347 (a)(7)(i) provided that an IEP include a statement of how a child's progress towards his or her annual goals will be measured. In its official interpretation of the new regulations, the U.S. Department of Education has indicated that:

"Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planing process used to develop and implement the IEP for each child with a disability … [the CSE] must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and if appropriate, to revise the IEP consistent with the student's instructional needs" (34 CFR Part 300, Appendix A).

        The hearing officer premised his findings upon the requirements of the former 34 CFR 300.346 (a)(5) which was no longer in effect when the boy's IEP was prepared. Nevertheless, I find that the boy's IEP did not meet the requirements imposed by the new regulations, as set forth above, with regard to having a means of monitoring the boy's progress during the school year. Each of the boy's IEP objectives indicated that his performance would be determined by teacher observation and evaluation "by June 15", i.e. at the end of the school year. As written, the IEP did not provide for a method of assessing his progress during the school year.

        The Board of Education challenges the hearing officer's finding that the boy's IEP was defective because it failed to address the problem of the boy's absence from school. It contends there was no behavioral problem which the CSE was obligated to address on the boy's IEP. Petitioner asserts that at its June 11, 1999 meeting, the CSE noted that the boy's attendance had substantially improved (Exhibit D-25). While that is true, I must point out that the boy was then attending the Kildonan School as a "five-day boarder" i.e., he was residing at the school, and was receiving specialized instruction in small groups. The record reveals that the boy did have an attendance problem while living at home and attending petitioner’s schools for the seventh and eighth grades. I am aware that the CSE recommended that the boy receive counseling, which could have addressed the problem. However, the CSE did not include any annual goal for the recommended counseling, and it recommended that counseling be provided on an "as needed" basis which is too imprecise for an IEP (Application of a Child with a Disability, Appeal No. 98-24). I agree with the hearing officer’s finding.

        In addition to the foregoing, I also find that the Board of Education failed to demonstrate that the recommended educational program would have adequately addressed this boy’s special education needs. As noted above, he has significant deficits in his auditory and visual processing skills which affect the way he learns. He also has difficulty maintaining his attention. At the hearing, respondents’ expert witness, the private psychologist who had evaluated the boy in September, 1997, testified that the boy could not be expected to use eleventh grade curriculum material to acquire knowledge of the content of his courses (Transcript, page 432). Although the Board of Education’s witnesses indicated that some curricular modifications would be made for the boy, they did not provide sufficient information to afford a basis for me to conclude that the proposed educational program would have enabled him to learn the curriculum while also addressing the weaknesses in his reading and writing skills.

        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 I have found that it failed to meet its burden of proof.

        The child's parents bear the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Landmark School during the 1999-2000 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 act" [Individuals with Disabilities Education Act] (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). The hearing officer found that respondents had met their burden of proof.

        The Board of Education contends that the boy's placement at the Landmark School is not appropriate under the IDEA because it is inconsistent with the requirement that each child with a disability be educated in the least restrictive environment (34 CFR 300.550-554, 8 NYCRR 200.6 [a][1]). The applicability of this requirement to a parental placement has been debated (compare Warren G. et. al. v. Cumberland County School District, 190 F. 3d 80 [3d Cir., 1999]; Delullo et. al. v. Jefferson County Board of Education, 194 F. 3d 1304 [4^th Cir., 1999]). However, the requirement has been consistently applied in this forum because it involves what would become a publicly funded placement under the IDEA, if tuition reimbursement is awarded. However, the requirement that children with disabilities be educated in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]).

        The Landmark School educates children with disabilities, and would not provide respondents' son an opportunity to be educated with his regular education peers. At Landmark, the boy was enrolled in "small group" classes of no more than eight students for instruction in language arts and math. He was assigned to a 1:1 language arts tutorial class for 45 minutes per day. The boy was also enrolled in geometry, history, science, and auto mechanics courses, and was required to attend a supervised 90-minute study hall in the evenings. The Landmark representative testified that the tutorial class dealt with oral reading, comprehension, study skills, spelling, and handwriting, and that remediation of these basic skills was also addressed in the boy's other classes at Landmark. He also testified that the boy was grouped in classes with pupils having similar strengths and weaknesses. The boy's mother testified that her son's tutoring program at Landmark was based upon the Orton-Gillingham methodology, which is a multi-sensory technique often used with children who are having difficulty ascertaining sound-symbol relationships and learning to read and spell. The Landmark representative testified that despite some initial adjustment problems, respondents' son appeared to be doing well at Landmark. A first quarter written progress report supports the representative's testimony (Exhibit P-N).

        In view of this boy's special education needs and his record of prior schooling, I find that the boy required the primary special education instruction which he received at Landmark in order to have an opportunity to make reasonable educational progress. Contrary to petitioner's assertion, this is not simply a matter of parental perception that the private school offered superior opportunities, (see Walzak v. Florida Union Free School District, 142 F. 3d 119 [2d Cir., 1998]). I have considered petitioner's argument with respect to the fact that the hearing officer ordered it to pay for the residential costs of the boy's placement as well as for his tuition. Although the evidence in the record with regard to the boy's need for a residential placement in order to receive an appropriate education is not compelling, he appears to have derived some benefit from Landmark's mandatory evening study hall. Completing homework has been a problem for him in petitioner's schools, and on occasion at the Kildonan School. In any event, I have found that the Landmark School offered an appropriate program for respondents' son, and the record does not reveal that there was an appropriate educational program for him which was closer to his home. I find that respondents have met their burden of proof.

        Petitioner also challenges the hearing officer's determination that respondents' claim for reimbursement was supported by equitable considerations. It asserts that the boy had previously attended the Kildonan School, and that he and his parents expressed their preference for a private school placement at the June 11, 1999 CSE meeting. The Board of Education also asserts that the boy's mother had requested a hearing before her son's IEP for the 1999-2000 school year was sent to her. That may all be true, but it does not lead to the conclusion that respondents' claim was not supported by equitable considerations. The record reveals that respondents cooperated at all times with petitioner's CSE. I find that their claim is supported by equitable considerations. Therefore, I dismiss petitioner's appeal.

        In their cross-appeal, respondents asked me to order the Board of Education to reimburse them for the cost of interest on the money which they have borrowed in order to pay for their son's placement. I find that the issue was not raised at the hearing, and that there is no factual basis upon which I could grant such relief (Applications of a Child with a Disability and the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23).

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.