No. 91-15


Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by her parents, relating to the classification of such child by the Board of Education of the Jamesville-Dewitt Central School District


Bond, Schoeneck and King, Esqs., attorneys for respondent, Thomas D. Keleher, Esq., of counsel



Petitioners appeal from the decision of a hearing officer which upheld the determination of respondent's committee on special education (CSE) to recommend to respondent that petitioners' child not be classified as a learning disabled pupil. The appeal must be dismissed.

Petitioners' child, who is 18 years old, is a senior at the Jamesville-Dewitt Central High School. The pupil has never been identified as a pupil with a handicapping condition, and has been enrolled in regular education classes throughout the twelve years she has attended respondent's schools.

On March 19, 1989, when the pupil was a high school sophomore, petitioners met with the pupil's guidance counselor and a school psychologist to discuss a possible referral of the pupil to the CSE. The psychologist advised petitioners that there was a backlog in pupil evaluations, and suggested that they obtain a private evaluation. On May 9, 1989, the pupil was privately evaluated by a learning disabilities specialist, who found that the pupil demonstrated specific processing deficits, warranting academic intervention. However, the evaluator acknowledged that the pupil might not have a significant discrepancy between her ability and her achievements, for purposes of classification as a pupil with a handicapping condition.

Petitioners met again with the guidance counselor and school psychologist on June 1, 1989. At that time, petitioners signed a form consenting to an evaluation of the pupil. However, respondent's staff did not commence its evaluation until September 27, 1989, and did not complete the evaluation until October 23, 1989. A social history, psychoeducational evaluation and classroom observation were obtained, but no physical examination was performed. An evaluator did discuss the pupil's health history with a school nurse. On October 19, 1989, a building level resource team considered the pupil's needs, and concluded that it would advise the CSE that the pupil should not be classified as a learning disabled pupil.

On October 26, 1989, petitioners met with the CSE, which voted to recommend that the pupil not be classified as learning disabled, or as having any other handicapping condition. Petitioners did not seek review by a hearing officer of the CSE's determination. Petitioners subsequently sought and obtained respondent's approval for an independent evaluation of the pupil to be performed by a psychologist selected by petitioners.

The private psychologist, who evaluated the pupil in January, 1990, concluded that the pupil had difficulty in differentiating essential from non-essential information, processing simultaneous stimuli, attending to detail, and with concentration. The psychologist found that the pupil's word fluency was below expectation, and that she was apprehensive during timed testing. However, the psychologist stated that the pupil's intellectual, visual perceptual, memory and motor functions were relatively intact, and that the pupil's academic achievement was commensurate with her intellectual ability.

The CSE received the results of the independent evaluation on March 19, 1990, but did not schedule a meeting to review the results. On May 11, 1990, the CSE received a request by petitioners to meet with the CSE. A meeting was held on June 1, 1990 at which time the CSE reviewed the results of the independent evaluation and the previously obtained evaluation data. The CSE voted again to recommend that the pupil not be classified as learning disabled.

On June 18, 1990, petitioners met with respondent in executive session. They urged the board of education to examine supplemental reports prepared by both of the private evaluators and to set aside the CSE's recommendation. Respondent confirmed the action taken by the CSE. On August 22, 1990, petitioners requested that an impartial hearing be held.

A hearing was held on September 25, October 5 and October 12, 1990. On December 10, 1990, the hearing officer issued an interim order directing that the pupil have a physical examination, as a required part of each evaluation (8 NYCRR 200.4 [b]; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41). The hearing officer directed that the CSE then consider the results of the physical examination in determining whether the pupil should be classified.

The pupil was examined by a private physician on December 14, 1990, and a copy of the physician's report was received by the CSE on December 27, 1990. On January 4, 1991, the CSE reviewed the physician's report, and adhered to its prior decision that the pupil should not be classified.

By decision dated February 7, 1991, the hearing officer found that the pupil exhibits weakness in written language, especially when compared to her oral expression, but that she does not exhibit a severe discrepancy between her ability and achievement. The hearing officer found that respondent had met its burden of proof on the issue of classification. Although petitioners had raised procedural issues at the hearing, the hearing officer failed to address those issues in his decision.

Before addressing petitioners's assertion with regard to the way in which the CSE's decision was reached, as well as the substance of that decision, I must first consider petitioners' assertion that they were deprived of an impartial hearing because the hearing officer was not impartial.

They assert that their research reveals that the hearing officer has rendered decisions in support of school districts in 85 percent of the cases which they have examined, and invite me to conduct similar research. Petitioners offer no proof to support this assertion. They also assert, to further demonstrate bias, that the respondent's president and the hearing officer " ...are apparently at least acquainted, and practice the same legal specialty in the same market". They also do not offer any further evidence to support these assertions. The record reveals that the hearing officer is an attorney who practices in Vestal, New York, which is some distance from respondent's school district. Questions as to the impartiality of hearing officers should be raised at the outset of the hearing, so that they may be promptly addressed and a record may be developed. Petitioners did not raise this issue at the hearing and have failed to offer any proof to support their assertion of an appearance of impropriety. Accordingly, I must find that petitioners have not met their burden of proof (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 6).

Petitioners also object to the fact that they did not obtain a prompt decision from the hearing officer in this matter. Federal and State regulations require that each board of education must assure that hearing officers render decisions within 45 calendar days after the board of education has received a request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][10]). Approximately five months elapsed between petitioners' request for a hearing and the final decision of the hearing officer. Respondent asserts that petitioners obtained two adjournments of the hearing. However, I note that the hearing was completed on October 12, 1990, almost two months before the hearing officer's interim order, and almost four months before his final decision. Prospectively, respondent shall take measures to insure that the hearing officers which it appoints shall comply with the timeliness requirements of Federal and State regulations.

Petitioners also assert that the pupil's guidance counselor or the school psychologist should have advised them of their rights under 8 NYCRR 200, at their meeting in March, 1989. I must note that 8 NYCRR 200.4 (a)(6) provides that the CSE must notify parents of their rights upon receipt of a referral of the pupil. In this instance, the pupil was not referred until June 1, 1989.

Petitioners are correct in asserting that their child was not evaluated in a timely manner by respondent. In accordance with 8 NYCRR 200.4 (c), a CSE must provide a recommendation to the board of education within 30 days after receipt of the parents' consent to an evaluation of their child. During the months of September through June, the term "days" means school workdays, but during July and August it means calendar days (8 NYCRR 200.1 [k]). Petitioners consented to an evaluation on June 1, 1989. The pupil's evaluation was not completed until October 23, 1989 and the CSE did not make its initial recommendation until October 26, 1989. Prospectively, respondent must ensure that its CSE adheres to the requirement for the timely evaluation of pupils.

Respondent has established resource teams, composed of teachers and administrators in each school building. After pupils have been evaluated, the evaluation results are discussed by the resource teams, which make recommendations to the CSE. Petitioners complain that they were not permitted to participate in a meeting of the resource team in April, 1990, at which time the team considered the report by the psychologist who performed an independent evaluation. They also assert that they were denied access to the minutes of that meeting.

With regard to the alleged minutes of the team meeting, the record reveals that while the team chairperson retained tape recordings of most meetings for short periods of time, no transcripts or minutes were prepared. Resource teams are neither CSEs nor subcommittees of CSEs. Therefore, petitioners do not have a right pursuant to either the Education Law or the Regulations of the Commissioner of Education to attend resource team meetings.

Petitioners assert that at the June 1, 1990 meeting of the CSE, the CSE chairperson misrepresented the views of the private psychologist who performed the independent evaluation, and that the individual members of the CSE never saw the psychologist's report. The record does not support either assertion. I have carefully reviewed the sworn testimony of the private psychologist and the CSE chairperson as to a conversation the psychologist had with the chairperson and the chairperson's description of that conversation to the CSE. I am persuaded that the chairperson did not misrepresent the psychologist's views as to degree of severity of the pupil's learning deficits. Although the pupil's mother testified that some members of the CSE indicated that they had not read the report of the private psychologist at the June 1, 1990 meeting, the sworn testimony of three members of the CSE directly contradicts the mother's testimony. These individuals testified that they had in fact read the complete report of the psychologist.

Petitioners raise the issue of the CSE's failure to have a physical examination of the pupil performed until the CSE was ordered by the hearing officer to do so. A physical examination is a required element of each initial evaluation (8 NYCRR 200.4 [b]), and is especially useful in ascertaining whether a pupil's learning problems are the result of visual, hearing or motor disorders, rather than a learning disability (8 NYCRR 200.1 [ff][3]). Now that the CSE has reviewed the results of the pupil's physical examination and has adhered to its earlier determination, the issue is whether, on the present record, the pupil should be classified as learning disabled.

In this case, there is no real dispute that the pupil has certain learning deficits. Respondent's psychologist has discussed ways in which the pupil's academic performance could be improved, with the pupil's teachers. The pupil has been allowed to take tests, including the Scholastic Aptitude Test, with testing modifications, such as extended time in which to complete the test. She has also been allowed to tape record teacher lectures. The central issue in this appeal is whether the pupil's learning difficulties are sufficiently severe to meet the criteria for identifying or classifying her as a learning disabled pupil under Federal and State standards.

State regulation defines a learning disabled pupil as:

"A pupil with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A child who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability."

The Federal standard is set forth in 34 CFR 300.541, requires that a pupil have a severe discrepancy between achievement and intellectual ability in: oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation, or mathematics reasoning.

Although the State definition expressly refers to a 50 percent discrepancy between a pupil's expected achievement and actual achievement, it is well established that the 50 percent discrepancy standard is the functional equivalent of the Federal "severe" discrepancy standard, and should be viewed as a qualitative rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635; Application of the Bd. of Ed. Connetquot Central School District, 27 Ed. Dept. Rep. 272; Application of a Handicapped Child, 26 id. 49; Application of a Handicapped Child, 23 id. 452).

Intellectual testing performed by respondent's psychologist and by a private psychologist reveal that the pupil has a full-scale IQ of approximately 100. The school psychologist reported that the pupil exhibited behavior during testing which could be interpreted as revealing a high degree of performance anxiety. The school psychologist found the pupil's scores on the various tests which were administered to her did not reveal any areas of significant intellectual or academic disability. The psychologist who independently evaluated the pupil in January, 1990, found that the pupil had relative strength in sequential synthesis, verbal conceptualizing, verbal memory, problem solving and deductive as well as analogical reasoning. The psychologist found that she had difficulty in differentiating essential from non-essential information, multiple processing of simultaneous stimuli, paying attention to detail and sustaining concentration. The psychologist further found that the pupil's word fluency, i.e. ability to retrieve the appropriate words to express what she intended was less than would be expected of a pupil of similar intellectual ability. The independent evaluator's findings as to the pupil's strengths and weaknesses were consistent with the findings of respondent's psychologist and those of the private educational evaluator.

At the hearing, petitioners adduced evidence that the deficits noted by the independent evaluator could impair the pupil's academic performance. However, the critical issue remains the degree to which the pupil's academic achievements have been impaired by her learning problems. The record reveals that the pupil has been enrolled in a demanding academic program involving a number of Regents level courses. The pupil has failed some of the Regents examinations, but has passed subsequent Regents examinations in some of her courses. I am aware that the pupil has been privately tutored for a number of years, which has undoubtedly contributed to her academic success. However, I am unable to conclude that there is a severe discrepancy between her expected and actual achievement.

I note that the psychologist who performed the independent evaluation reported that the pupil's academic achievement was consistently within the average range and was commensurate with her ability. At the hearing, the psychologist attempted to qualify his remark in the evaluation that the pupil had mild compromises in her cognitive ability, by contrasting her compromises with those of the brain injured patients whom he also sees. In essence, the psychologist conceded that the pupil does not meet the severe discrepancy standard, but argued that she should nonetheless be classified as learning impaired in order to obtain special services such as resource room instruction.

Although I agree that special education services such as resource room instruction could benefit the pupil, that is not the issue which I must decide. Instead, I must decide whether the pupil is learning disabled within the meaning of the Federal and State regulations. The record before me does not afford an adequate basis for concluding that the pupil should be classified a learning disabled.



Dated: Albany, New York __________________________
April 20 , 1991 HENRY A. FERNANDEZ