00-090

       Petitioner, the Board of Education of the Rocky Point Union Free School District, appeals from an impartial hearing officer's decision which found that petitioner had not provided a free appropriate public education (FAPE) to respondents’ son, and which further found that the student should be tutored at home during the 2000-01 school year until he received medical clearance to attend school. The hearing officer also directed petitioner to place the student in a non-district program for the remainder of the 2000-01 school year. The appeal must be sustained in part.

        Respondents' son is 15 years old. He sustained an injury during a physical education activity in November 1998, while enrolled in the seventh grade of the Rocky Point High School. The student was placed on home instruction, and he continued to receive instruction at home for the remainder of the seventh grade, as well as the eighth grade during the 1998-99 school year. He had still not returned to school when the hearing concluded in early September 2000.

        Respondents’ son attended the Hauppage Public Schools for the third grade and one-half of the fourth grade. While in those schools, he was classified as learning disabled because he was having difficulty with reading and math (Exhibit J). The student entered petitioner’s schools in the middle of the 1995-96 school year, when he was in the fourth grade. Petitioner’s Committee on Special Education (CSE) recommended that the student continue to be classified as learning disabled and receive one period of resource room services per day (Exhibit R). The student has remained classified as learning disabled, and his classification is not in dispute.

        The student continued to receive 40 minutes of resource room services five times per week while in the fifth grade during the 1996-97 school year (Exhibit S). In January 1997, the Otis-Lennon School Ability Test (OLSAT), a group intelligence test, was administered to him. The student achieved a verbal IQ score of 87, a non-verbal IQ score of 88 and a total score of 87 (Exhibit C). Petitioner’s school psychologist testified that group intelligence tests are not considered as accurate for evaluating students as individually administered tests (Transcript p. 326). In April 1997, the student achieved grade equivalents of 4.1 for math applications, 4.5 for math computations, 4.2 for reading comprehension, 4.5 for reading decoding and 6.1 for spelling on the Kaufman Test of Educational Achievement (Exhibit T). He passed the New York State Fifth Grade Writing Test (Transcript p. 49).

        In April 1997, respondents requested a neurological evaluation. Their request was denied by the CSE. Respondents also requested that the Test of Written Language (TOWL) be administered to their son. The CSE indicated that a TOWL would be administered in October 1997 (Exhibit T).

        In June 1997, the Clinical Evaluation of Language Fundamentals (CELF) and the Test of Auditory-Perceptual Skills (TAPS) were administered to the student. On the CELF, the student's receptive and expressive language scores fell into the 47th percentile, which is in the average range. On the TAPS, the student achieved scores in the 84th percentile for word discrimination and auditory processing, while his scores for sentence memory and interpretation of directions were in the 25th percentile. The student's scores on forward number memory and word memory fell into the 16th percentile. He achieved a score in the 37th percentile for reversed number memory (Exhibit 22).

        The student reportedly had difficulties with another group of students in the fifth grade (Exhibit G). An allegation of harassment was brought to the attention of the principal. In response, she instructed the student's resource room teacher to meet the student at his classroom and escort him to resource room every day. In addition, the principal reviewed the locations of playground monitors to ensure appropriate supervision on the playground (Transcript p. 81-86). A presentation was conducted for the student's class on bullying and teasing (Transcript pp. 304-305). Apparently, no other allegations of harassment were brought to the attention of school officials during the 1996-97 school year (Exhibit G).

        The CSE convened on July 23, 1997 to complete its annual review of the student (Exhibit T). Although his mother had requested that a physician be present at the CSE meeting, no physician participated in the meeting as required by Section 4402[1][b][1][b] of the Education Law (Exhibits 16 and T). The CSE recommended that the student remain in petitioner’s regular education program, with resource room services, for the sixth grade during the 1997-98 school year (Exhibit T). The CSE indicated on the student’s individualized education program (IEP) that he should have the benefit of various testing modifications, including flexible scheduling, separate locations, extended time limits, and having test questions read to him.

        In letters dated July 23, 1997, the student’s mother requested a neuropsychological evaluation, a central auditory processing battery, a TOWL, and an independent speech/language evaluation at school district expense (Exhibits 5, 6 and 7). The CSE determined that the requested evaluations were not necessary (Transcript p. 793). However, there is no evidence that the Board of Education initiated a hearing to establish the appropriateness of its evaluation and avoid paying for the requested evaluations (34 CFR 300.502[b][2]; 8 NYCRR 200.4[g][iv]).

        In sixth grade, the student achieved grades primarily consisting of Bs and Cs (Exhibits C and 42). His resource room teacher testified during the hearing that the student had been well motivated and had shown growth in all areas during the 1997-98 school year (Transcript p. 287). On the Weschler Individual Achievement Test (WIAT) which was administered to him in May 1998, the student achieved grade equivalent (and standard) scores of 7.4 (106) for basic reading, 12.9 (116) for reading comprehension, 4.0 (82) for math reasoning, 5.9 (89) for numerical operations, 9.3 (106) for listening comprehension, 12.9 (120) for oral expression, and 5.1 (92) for written expression (Exhibits I and V).

        The student's resource room teacher ensured that the student was not placed in a sixth grade class with the students with whom he had had difficulties during the fifth grade (Transcript pp. 287, 288). Nevertheless, the student was involved in an incident on a school bus in November 1997, in which another student reportedly grabbed respondents’ son around the neck (Transcript p. 289-292). The school principal testified that the student or students who were allegedly involved in the incident had been disciplined. As a result of that incident, respondents’ son reportedly wore a neck brace for one week (Exhibit G, p.94).

        At its annual review on June 24, 1998, the CSE recommended that the student continue to receive 40 minutes of resource room services five times per week while enrolled in regular education seventh grade classes during the 1998-99 school year (Exhibit V). It also recommended that he continue to have the benefit of testing modifications. In November, 1998, the student injured his leg and neck playing soccer during a physical education class at petitioner’s high school. At a hearing in December pertaining to a personal injury claim relating to the incident, respondents’ son testified that another student had intentionally tackled him, causing his leg and neck injuries (Exhibit G p. 75). At the same hearing, the student testified that he had been intimidated and battered by several classmates over the course of fifth, sixth and seventh grades. He described several incidents of being hit, pushed and kicked. However, he acknowledged that he rarely reported these incidents to any school officials (Exhibit G). An assistant principal who was assigned to investigate the soccer incident testified at the hearing that in his opinion the student’s injuries were accidental rather than intentional (Transcript p. 403).

        As a result of the injuries he sustained during physical education class, respondents’ son was unable to attend school. Petitioner arranged for the student to be instructed at home. In January 1999, the student achieved a grade of A- for both English and social studies. He achieved a grade of B for both math and science. In March, the student achieved a grade of B for both English and social studies. He received no grade for math, and his report card indicated that he had a medical absence for science (Exhibit 41). The student was still receiving home instruction in April 1998, when the Stanford Achievement Test was administered to him. On that test, he achieved grade equivalent (and percentile) scores of 7.4 (47) for reading comprehension, 4.3 (13) for math applications, 5.0 (15) for math computation, and 4.5 (10) for numerical operations (Exhibit U).

        On April 22, 1999, the CSE conducted its annual review and prepared the student’s IEP for the 1999-2000 school year. A transcript of the meeting indicates that the CSE discussed the fact that some of the appointments for the student’s home instruction had not been kept, and the CSE chairperson indicated that home tutoring would continue through the summer to make up for the cancellations (Exhibit W p. 18). The mother stated that her child had been permanently injured and would not be returning to school that year (Exhibit W pp. 12-13). She also stated that she wanted her child placed in a program outside the school district, and would request an impartial hearing to secure an appropriate placement (Exhibit W pp. 14-15). Near the end of the meeting, the CSE chairperson announced that the CSE’s "recommendation for today" was that respondents’ son continue to receive resource room services upon his return to school (Exhibit W p. 21). An IEP was prepared indicating that the student was to receive 40 minutes of resource room services five times per week while attending regular eighth grade classes during the 1999-2000 school year (Exhibits U and 9). The IEP lacked annual goals and short-term objectives. At the hearing in this proceeding, the CSE chairperson testified that the IEP was a preliminary document (Transcript p. 736).

        Shortly after the CSE meeting, the mother wrote a letter to the school district outlining her concerns about how her son’s summer tutoring was to be provided (Exhibit BB). In a letter dated May 18, 1999, the mother requested an impartial hearing. She stated her disapproval with the program recommended by the CSE at its April meeting, and requested reimbursement of tuition and transportation costs at an unnamed, non-district placement (Joint Exhibit 1).

        On June 24, 1999, the CSE reconvened to complete the student’s IEP for the 1999-2000 school year. The IEP resulting from that meeting indicated that the student would be enrolled in regular education classes and receive resource room support, and it included annual goals and short-term objectives (Exhibits X and 8). One of the goals was to increase the student’s interpersonal skills, although the CSE had not recommended that he receive counseling. The IEP also included an annual goal to improve the student’s study skills, as well as goals to improve his reading, math, spelling, writing, and science skills.

        In July 1999, a private psychologist administered the Peabody Individual Achievement Test - Revised (PIAT) to the student. In reading recognition, the student achieved a standard score, grade equivalent and percentile of 70, 3.8 and 2, respectively. The student achieved a standard score of 90, a grade equivalent of 6.1, and a percentile of 25 in reading comprehension. In total reading, the student achieved a standard score of 76, a grade equivalent of 4.6 and a percentile of five. In math, the student achieved a standard score was 81, a grade equivalent of 5.2, and a percentile of 10. The student achieved a standard score of 74, a grade equivalent of 4.4 and a percentile of four in spelling. In written language, the student achieved a standard score of 73 and a percentile of four. The evaluator reported that the student’s writing skills were of primary concern, involving difficulties in expressing his thoughts, use of grammar and syntax, and development of a story line. She recommended that he receive support services, and opined that he would benefit from multi-sensory teaching strategies (Exhibit 4). There is no evidence in the record that the evaluation was shared with the CSE.

        In a letter dated September 2, 1999, the CSE chairperson informed respondents that she anticipated the return of their child to school. She stated that a team meeting would be arranged to ensure that the student would feel safe and secure in the high school setting. In addition, she proposed that team meetings be scheduled every six weeks so that any parental concerns could be addressed. Finally, the CSE chairperson stated that school based counseling would be provided to the student (Exhibit Y). However, the student remained at home and received home instruction provided by petitioner.

        On November 19, 1999, the CSE amended the student's IEP. The IEP description of the student’s abilities, learning style and needs, and his rate of progress was apparently unchanged, as was the CSE’s recommendation that he receive resource room services (Exhibit 12). The record does not reveal the purpose and results of the meeting. In a letter dated February 4, 2000, the CSE chairperson asked the student’s parents to make arrangements for their child's return to school or send a physician's note explaining their child's current condition and anticipated date of return to school. The parents submitted a form from an orthopedic and spinal surgeon, dated February 16, 2000, diagnosing the student with "subluxation of C6-C7 stable cervical strain." The physician indicated that the student would need home tutoring for the indefinite future (Exhibit 31).

        The impartial hearing which the student’s mother had requested in May 1999 began on July 1, 1999. However, the attorneys for both parties and the hearing officer were replaced. On or about November 29, 1999, petitioner appointed the replacement hearing officer. The hearing was further delayed by respondents’ attempts to secure counsel and by other scheduling difficulties. It began on April 14, 2000. One day of hearing had previously been completed with a different hearing officer on July 1, 1999. The first hearing officer apparently had scheduling difficulties, and the parties agreed to start the hearing from the beginning on April 14 (Transcript p. 12). The hearing continued over the course of eleven days, concluding on September 8, 2000.

        While the hearing was in progress, a social worker who was privately counseling respondents’ son opined in a letter dated May 29, 2000, that the student was suffering from Post Traumatic Stress Disorder (PTSD) and a Generalized Anxiety Disorder. She reported that the student feared that his parents might die, occasionally had difficulty concentrating, suffered a loss of interest in activities he once enjoyed, and had mood swings, occasional insomnia and nightmares. She recommended that the student never return to Rocky Point High School (Exhibit 18). In a subsequent letter dated August 31, 2000, the social worker expressed her disappointment with the student’s proposed IEP for the 2000-01 school year (Exhibit 44). I must note that the IEP was not included in the record.

        On July 21, 2000, the seventh day of hearing, respondents asked the hearing officer to order neurological and central auditory processing evaluations for their son (Transcript p. 1029). In an order dated July 27, 2000 and read into the record on August 17, 2000, the hearing officer ordered the school district, with the parents’ cooperation, to make necessary arrangements for the student to receive a neuropsychological evaluation, a TOWL, and an independent speech and language evaluation (Transcript pp. 1173-1176). The school district's attorney opposed the order on the grounds that the student’s parents had not cooperated with the district in its attempt to do its own psychological evaluation, and that it would be premature to conduct a neuropsychological evaluation. The attorney requested that the hearing officer order respondents to produce their son for a complete psychological evaluation (Transcript pp. 1177-1178). On August 17, 2000, the hearing officer stated that his order would remain in effect (Transcript p. 1183). I note that the evaluations ordered by the hearing officer did not take place until after the hearing officer had rendered his final decision on October 16, 2000.

        In his decision, the hearing officer noted that no individual psychological evaluation had been performed since the student came to petitioner’s district in 1995, and that there had been errors on the student’s IEPs over the years with regard to medical alerts and testing modifications. However, the premise for his conclusion that the Board of Education had not offered an appropriate education placement for respondents’ son during the 2000-2001 school year was that the student’s parents were enraged, hostile and had lost faith in the school district. He found that the parents' extreme animosity toward the school district warranted a finding that the CSE's recommendation was inappropriate (Decision pp. 9-10). The hearing officer ordered the school district to continue to provide home instruction until the student was physically able to attend school. When the student was able to return to school, the school district was ordered to provide him with a placement outside the school district for the remainder of the 2000-2001 school year. Upon its receipt of the evaluations which he had ordered, the hearing officer directed the CSE to review all relevant data in developing the student’s IEP for the 2001-02 school year.

        The Board of Education challenges the hearing officer’s directive ordering it to arrange and pay for certain evaluations. It asserts that the student’s parents had not sought review of the CSE’s determination to deny their request for evaluations in 1997. Petitioner’s argument reflects a misunderstanding of its responsibility under federal and state law when a student’s parents request an independent evaluation. As noted above, petitioner was obliged by regulation to either pay for such evaluation or initiate a hearing to establish the appropriateness of its own evaluations. There is no evidence petitioner took either course of action. Petitioner also asserts that it was premature for the hearing officer to order the evaluations before he had heard all of the evidence. I disagree. The hearing officer was authorized to order an independent evaluation (34 CFR 300. 502[d]; 8 NYCRR 200.5[I][vi]). While the hearing officer’s power is not unlimited, I find that there was a rational basis for the testing which he ordered. There was a lack of current evaluative information about the student which would have been useful to know in determining his specific special education needs, as well as an appropriate educational program for him.

        The Board of Education further asserts that the IDEA does not allow parental hostility to be the sole basis for finding that a proposed public school placement is inappropriate. Petitioner argues that the hearing officer essentially allowed respondents to have veto power over the CSE’s recommendation. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefit (Board of Educ. 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, establishes annual goals and short-term instructional objectives related to the child’s educational deficits and provides for the use of appropriate special education services to address the child’s special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        I must initially note that this due process proceeding was commenced to review the IEP which the CSE had prepared for the 1999-2000 school year. In the absence of any proof of an IEP for the 2000-01 school year, I must find that the hearing officer exceeded his jurisdiction in determining that the Board of Education had not offered the student an appropriate educational program for that school year (Application of a Child with a Disability, Appeal No. 94-13). The issue which was before the hearing officer was whether the educational program reflected by the IEP for the 1999-2000 school year (Exhibits X and 8) was appropriate for this student.

        The CSE prepared the student’s IEP at two meetings during the spring of 1999. At that time, the student had been out of school and receiving home instruction for approximately six months. The student’s last individual psychological evaluation was approximately four years old. Despite the student’s apparent difficulty with maintaining peer relationships, there was no evidence of projective testing which would have afforded a basis for understanding and meeting the student’s social/emotional needs. As noted above, the CSE included an annual goal related to improving the student’s interpersonal skills, but failed to recommend that he receive any counseling to assist him in accomplishing that goal.

        There is no evidence of any progress reports from the student’s tutors in the record, although one member of the CSE testified that he had received periodic progress reports from the student's tutor. The IEP which the CSE prepared for the 1999-2000 school year listed the results of a Stanford Achievement Test administered in April 1999. The record does not reveal the circumstances under which the test was administered. The student’s score for reading comprehension was significantly lower on the Stanford than that which he had achieved on the WIAT in May 1998.

        A CSE must have adequate and accurate information about a student’s current levels of performance and special education needs in order to draft an appropriate IEP for the student. The record does not reveal the basis for the IEP’s statement describing the student’s abilities, learning style, needs and rate of progress. I note that subsequent evaluations have indicated that the student has a language-based disability, including auditory processing and memory problems. Although the IEP included a number of objectives for each annual goal, there is no basis in the record for determining whether the objectives were appropriate for the student. I find that the student's IEP for the 1999-2000 school year was defective, and that petitioner did not meet its burden of proving that it had offered to provide an appropriate educational program to respondents' son for that school year.

        As noted above, there is no evidence of an IEP for the 2000-01 school year in the record, and therefore no basis for the hearing officer to make a determination regarding the appropriateness of the district’s educational program for that school year, or to direct the Board of Education to place the student in a particular program. Since his determination with respect to the 2000-2001 school year must be annulled for this reason, I have not reviewed the hearing officer’s rationale for an out-of-district placement. The evaluations which the hearing officer ordered have now been completed. It is the CSE’s responsibility to carefully consider those evaluations and to obtain current information about his educational progress from those individuals who are currently instructing the student. When it has done so, the CSE will be able to make an informed judgment about the student’s special education needs, and can recommend an educational program to address those needs. Until the CSE has done this, the student should remain in his last agreed upon placement, i.e., home instruction, unless the parties mutually agree upon an alternative placement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it ordered an out-of-district placement for the remainder of the 2000-2001 school district.

IT IS FURTHER ORDERED that within 20 days after the date of this decision, petitioner’s CSE shall recommend an educational program for respondents’ son for the remainder of the 2000-01 school year.