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The State Education Department
State Review Officer

No. 94-36

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Syracuse-Minoa Central School District

Appearances:

Legal Services of Central New York, Inc., attorney for petitioner, Frederick M. Stanczak, Esq., of counsel

O'Hara and O'Connell, P.C., attorney for respondent, Danny Louis Mevec, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child not be classified as a child with a disability or provided with special education services during the 1993-94 school year. The appeal must be dismissed.

Petitioner's son, who is eight years old, entered kindergarten in the St. Matthew's School of East Syracuse, New York, in September 1991. The child has remained in St. Matthew's, and was in the second grade during the 1993-94 school year. The child was reportedly born prematurely, but he attained his developmental milestones within the usual timeframe. The child was reportedly diagnosed as having subglottic stenosis, i.e., a narrowing of the windpipe, and otitis media, i.e., inflammation of the middle ear, at an early age. His tonsils and adenoids were removed in February, 1992, because it was suspected that his enlarged adenoids pressed upon the child's eustachian tubes, which may have caused the child to have an intermittent hearing loss.

Prior to entering kindergarten, the child was enrolled for two years in a private preschool program. At the hearing in this proceeding, the preschool program director testified that the child's speech and language patterns were somewhat immature, and that he had difficulty replicating sounds. She further testified that he showed some signs of difficulty paying attention. The director also testified that when he was tested in the preschool, the child had a general cognitive index of 107, which was in the average range of intelligence. Although the child's performance on standardized tests administered to him in the preschool program was in the average range, the program director opined that the child nevertheless displayed some symptoms of a learning disability.

In April, 1992, the child was referred to respondent's CSE by the Principal of the St. Matthew's School at the request of the child's parents, who were reportedly concerned about the child's academic development. The child's psychological evaluation, which was completed on April 27, 1992, was performed by a school psychologist intern, under the supervision of one of respondent's school psychologists. The intern, who observed the child in his kindergarten class, reported that the child paid attention, and was able to follow along with his class during instruction in arithmetic. The child achieved a mental processing score of 100, which was described by the evaluator as within the average range of intellectual ability. He was reported to have significantly stronger simultaneous processing skills than sequential processing skills. He exhibited a relative weakness in his short-term memory ability. In achievement tests, the child's reading skills were reported to be in the average range, with relative strength in his ability to name letters. He exhibited strength in analyzing and solving practical mathematical problems, and weakness in general factual knowledge and knowledge of mathematical concepts and vocabulary. He was described as a friendly child, who got along well with adults and peers. The evaluator reported that the child did not exhibit a significant discrepancy between his intellectual abilities and academic achievement, but recommended that his academic progress in the first grade be monitored and that he receive individual help in the first grade. At the hearing in this proceeding, the supervising school psychologist testified that the recommendation for individual assistance was made because he knew such help was available in St. Matthew's, rather than because he believed the child had a disability. The evaluator recommended that a sight word, rather than phonetic, approach be used to teach him to read.

Respondent's speech/language therapist who evaluated the child in April, 1992 reported that the child had excellent speech intelligibility, and that his expressive and receptive language skills were age appropriate. The speech/language therapist recommended that the child not receive speech/language therapy.

The CSE met with petitioner in June, 1992, to discuss the results of the child's evaluation. At the hearing in this proceeding, the child's kindergarten teacher, who attended the CSE meeting, testified that the CSE recommended that the child not be classified as a child with a disability. The teacher further testified that she agreed with the CSE's recommendation. The child's report card for kindergarten at the end of the 1991-92 school year revealed that he had generally satisfactory work habits, social and emotional development, and general readiness skills. His reading and mathematics readiness skills were also reported to be generally satisfactory. Late in the 1991-92 school year, the child received some remedial assistance in mathematics, reportedly at petitioner's request, in the St. Matthew's School.

At petitioner's request, the preschool program director tested the child's auditory processing skills at the end of kindergarten, when he was approximately six years old. The child reportedly attained a score equivalent to that which was typically achieved by four-year old children. During the Summer of 1992, petitioner enrolled the child in a remedial reading program which used the Orton-Gillingham method.

Petitioner requested that the child receive an independent psychological evaluation, which was performed in September, 1992. The private psychologist, who described the child as sad and anxious in anticipation of parental disapproval, opined that the child evidenced a constellation of behaviors which was best characterized by the diagnosis of attention deficit hyperactivity disorder (ADHD). He reported that the child had achieved a verbal IQ score of 122, a performance IQ score of 104, and a full scale IQ score of 115. In tests of the child's academic achievement, he received standard scores of 105 in reading, 101 in mathematics and 105 in spelling, each of which was in the average range. The private psychologist inferred that the child had scholastic adjustment problems, based upon his review of the child's school records and parental report. The psychologist opined that such difficulties were apparently attributable to a combination of what he described as "neuronal hyperresponsivity" manifested by an attentional disturbance, inconsistent performance and limited self-control, and a mild developmental expressive language disorder of syntactic perception and of spatial functioning which had interfered with the development of the child's academic skills. He recommended the use of the medication Clonidine to deal with the child's attentional dysfunction. While noting that the child " ... is currently functioning at grade level ... ", the psychologist opined that " ... it is envisioned that [the child's] skill development will begin to fall behind peers if his current perceptual limitations are not adequately remediated ... " (Petitioner's Exhibit 2, page 4). He recommended that the child be classified as learning disabled, and that he receive daily speech/language therapy and occupational therapy. The psychologist further recommended that the child's visual acuity be assessed by an ophthalmologist, and that the child's parents receive counseling to develop parenting skills.

The child was referred again to the CSE on February 10, 1993, at the request of petitioner, who had expressed concern about his academic performance and ability to remain focused. Shortly before the child's referral, respondent updated the child's psychological evaluation of April, 1992. The school psychologist who had supervised the intern who had tested the child in the prior evaluation supervised another intern, who tested the child's achievement on February 2, 1993. The intern interviewed the child's first grade teacher, observed the child in the St. Matthew's School and administered standardized tests to him. The child achieved standard scores of 102 in reading, 116 in mathematics, and 113 in spelling. At the hearing in this proceeding, the supervising school psychologist testified that the child's standard scores in reading and spelling were in the average range, and his standard score in mathematics was in the above average range. In the written report of the 1993 update, the evaluator noted that the child's reading decoding skills were slightly delayed and that the child appeared to read and spell by sight, rather than phonetically, but opined that it was not unusual for a child of his age to do so. The child also reversed the letters "p" and "q", which was also not unusual for a six-year old child to do. The evaluator recommended that the child's teacher continue to use pictorial representations and manipulatives to introduce new concepts to the child, and to use the whole word approach to teach reading. It was also recommended that the child's progress should be monitored.

On March 3, 1993, the CSE reviewed the results of the child's independent evaluation of September, 1992 and its own evaluation of April, 1992 as updated in February, 1993. The CSE chairperson testified at the hearing that the CSE decided to conduct an occupational therapy evaluation and an additional speech/language therapy evaluation, because the private psychologist had recommended that the child receive occupational therapy and speech/language therapy.

In the occupational therapy evaluation, which was completed on April 1, 1993, respondent's occupational therapist reported that she had discussed the child's performance with his first grade and physical education teachers in the St. Matthew's School, and had observed the child in his classroom and in gym class. She noted that the child appeared to need positive reinforcement from his first grade teacher and redirection from his physical education teacher, but was able to follow directions in both classes. The occupational therapist reported that the child had normal muscle tone, range of motion and muscle strength, and adequate reflex integration. The child, who was six years and eight months old when evaluated, achieved age equivalent scores of 6.5 for his gross motor skills and 5.7 for his fine motor skills. Although the child's fine motor skills were less well developed, he was nevertheless reported to have the hand skills needed to write. The child was also found to have age appropriate visual-perceptual and visual-motor integration skills. The occupational therapist described some activities to enhance the child's vestibular, tactile and proprioceptive input for petitioner's consideration, but reported that the child did not require direct school-based occupational therapy.

The child's re-evaluation in speech/language was also completed on April 1, 1993, by the speech/language therapist who had evaluated the child in April, 1992. The therapist reported that, with one exception, the child's performance on various tests of his receptive and expressive language skills was consistent with the expected performance of a child of his age. In the Test of Word Finding, which measured the child's ability to label things quickly, he achieved a standard score of 80, which was reported to be in the tenth percentile, i.e., ninety percent of his chronological peers would score higher. However, the speech/language therapist testified that the child's score was derived from the first and often prompt answer which he gave to each question, and that his score would have been much higher if she could have counted the child's self-corrected, but subsequent, answers to the questions. The speech/language therapist reported that the child continued to inconsistently use possessive and irregular plural nouns, irregular past tense verbs and irregular comparative and superlative adjectives, but asserted that the child was following the normal pattern of development and that his errors were typical of his age group. Respondent's therapist recommended that the child not be provided with speech/language therapy. On May 27, 1993, petitioner had the child's hearing evaluated by an audiologist, who reported that the child's hearing sensitivity was within normal limits. The audiologist also reported that there was a discrepancy between the child's speech reception thresholds and pure tone average for his right ear, which could have been attributable to the child's frustration with the hearing test. The examination was not completed because of the child's fatigue. The audiologist recommended that the child be further evaluated to determine if he might have a central auditory processing deficit. The child's hearing was subsequently evaluated on September 9, 1993, at the Communication Disorder Unit of the State University of New York Science Center in Syracuse. He was reported as having bilateral auditory sensitivity within the normal range. His word discrimination ability in a quiet setting was described as excellent. However, he exhibited a decreased ability to discriminate words in a noisy setting, which the evaluator opined would mean that the child would encounter difficulty understanding speech in a typical classroom. The evaluator recommended that the child be seated within 8 to 10 feet of the teacher when in class, and suggested that if he nevertheless did have difficulty following his teacher's directions, an Easy Listener, i.e., FM radio device, be used in class.

The CSE met with petitioner on June 22, 1993. The CSE chairperson testified at the hearing that the CSE considered the results of the child's evaluations, and reviewed the child's report card for the 1992-93 school year with the Principal of the St. Matthew's School, who attended the CSE meeting, and two brief written reports by the child's first grade teacher. In the first teacher report dated March 8, 1993, the child's academic performance was said to range from below average to average with a high level of teacher direction. The child's teacher reported that the child was dependent upon the teacher for additional or individual instruction on a regular basis. She described the child as extremely social, and opined that his social ability interfered with his academics from time to time. In a report dated June 15, 1993, the child's first grade teacher reported that the child's academic performance varied from medium to low, according to subject areas. His performance was reported to be strongest in mathematics and weakest in areas involving comprehension. She suggested that his performance could be improved by closely monitoring his work, modifying test conditions to provide him with extra guidance to aid processing, and providing him with additional clarification and visual aids when introducing him to new material. The child's report card revealed that he received all "A's" and "B's" in all subjects for which letter grades were used. In science and social studies, he received the grade of "satisfactory". The child's work and social habits were described as satisfactory or improving.

The CSE recommended that the child not be classified as a child with a disability. At the hearing in this proceeding, the CSE chairperson testified that the CSE had concluded that the child could not be classified as learning disabled because he did not exhibit a significant discrepancy between his ability and his achievement. The chairperson further testified that the CSE had also concluded that the child should not be classified as other health impaired, under the applicable Federal and State regulatory definitions, and that he was not an individual with handicaps as that term is used in Section 504 of the Rehabilitation Act of 1973 (29 USC 706 [8]). The child's need, if any, for speech/language therapy and occupational therapy was discussed by the CSE, which concluded that he did not require either related service.

By letter dated June 30, 1993, petitioner requested that an impartial hearing be held to determine whether her son should be classified as learning disabled and whether respondent should provide him with speech/language therapy and occupational therapy. The hearing commenced on November 12, 1993, and concluded on July 12, 1994. The hearing officer rendered her decision on September 8, 1994. She held that the child was not eligible for the classification of learning disabled, because he did not manifest a discrepancy between his ability and his academic achievement in any of the areas of performance which she reviewed. Her holding was premised upon her findings that the child was of average to high average ability and that his performance on achievement tests and in the classroom was consistent with his cognitive ability. The hearing officer also considered the independent evaluator's diagnosis that the child had ADHD, but found that there was no evidence that the child's ADHD related behaviors had a deleterious effect upon the child's achievement. The hearing officer further found that the child's speech/language and fine and gross motor skills were appropriate, and that he did not require either speech/language therapy or occupational therapy.

There are two procedural issues to be addressed before reaching the substantive issues of this appeal. Respondent has submitted an affidavit by one of its reading teachers who administered a standardized reading test to the child in mid-September, 1994 at the St. Matthew's School, where the child is now enrolled in the third grade. Petitioner has submitted an affidavit with her reply to the answer in which she challenges some of the teacher's assertions about the significance of the test results and petitioner's alleged unwillingness to accept remedial reading services offered by respondent for the 1994-95 school year. I find that the issues raised in the teacher's affidavit and petitioner's affidavit do not relate to the CSE's recommendation for the 1993-94 school year, which is the subject of this appeal, and I have not considered those affidavits in rendering this decision.

Respondent asserts as an affirmative defense that petitioner is precluded from raising the issue of the child's classification in this appeal because petitioner did not explicitly assert in her petition that the child's classification was at issue. Respondent further asserts in its memorandum of law that the issue which petitioner identified in her petition is whether the child "should be provided with appropriate services for a learning disability and/or multiple handicaps". I find that respondent's argument is without merit. In paragraph 3 of the petition, petitioner asserts that the hearing officer failed to address her contention that respondent had misapplied the State regulatory definition of a child with a learning disability in determining that the child was ineligible to receive special educational services. Indeed, the issue of what, if any, services should be provided to the child presupposes that respondent has an obligation to provide services to the child under Article 89 of the Education Law, i.e., that the child has an education disability in accordance with Federal and State criteria for identifying and classifying children with disabilities. Therefore, I find that the child's eligibility for classification as a child with a disability is properly before me as an issue in this appeal.

Petitioner asserts that the hearing officer's decision should be annulled because the CSE failed to properly evaluate her son and the hearing officer failed to address that issue in her decision. At the hearing, petitioner introduced into evidence a letter addressed to her from a representative of the State Education Department, who opined that the evaluation of petitioner's child by a school psychologist intern was inconsistent with State regulation and did not represent a "best practice." State regulation provides that each child who is referred to a CSE shall receive an individual evaluation, which must include an individual psychological assessment, except when a school psychologist determines after an assessment of the child that further evaluation is unnecessary (8 NYCRR 200.4 [b][1][ii]). An individual psychological evaluation is defined by State regulation as:

" ... a process by which a New York State certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations in the student's dominant language, to study and describe a student's developmental, learning, behavioral and other personality characteristics." (8 NYCRR 200.1 [w])

The record reveals that one school psychologist intern was involved in the child's initial psychological evaluation for the CSE in April, 1992, and that another school psychologist intern was involved in the update of that evaluation in February, 1993. Respondent points out that a student in a registered or approved teacher education program may be issued an internship certificate by the State Education Department, which would allow the student to be employed by a school district to practice his or her profession under the supervision of an appropriately licensed or certified school district employee (8 NYCRR 80.2 [g]). One of respondent's certified school psychologists testified that he supervised the school psychology interns who were involved in the child's evaluation and subsequent update. He testified that he met with each intern, decided what tests the intern would administer, and reviewed the test results with the intern. The school psychologist admitted in his testimony that he had not observed or interacted with the child, in either 1992 or 1993 so as to afford him a basis for reaching an independent conclusion about the nature of a child's disability, if any. The record includes two copies of the April, 1992 evaluation, neither of which was signed by the certified school psychologist, which would have indicated that he had participated in the child's evaluation and that the opinions expressed in the report were his.

Although respondent should have provided more explicit evidence of the school psychologist's personal involvement in the child's initial psychological evaluation and subsequent update, its failure to do so is not dispositive of the matter. The CSE reviewed the child's independent evaluation by a licensed psychologist at its meetings in March and June, 1993, as it was required to do (8 NYCRR 200.5 [a][v]). Therefore, I find that the CSE's recommendation cannot be annulled on the ground that it lacked a valid psychological evaluation of the child. I must also note that the test results in the CSE's evaluation and update and the independent evaluation are consistent, and I have considered all three documents in rendering this decision.

Petitioner also asserts that the CSE's evaluation of the child was defective because it did not include an observation of the child in his St. Matthew's class by at least one member of the multidisciplinary team which determined that the child was not learning disabled, i.e., the CSE. Federal regulation requires that when a child is suspected of having a learning disability, at least one member of the multidisciplinary team other than the child's regular teacher must observe the child's academic performance in the regular education classroom (34 CFR 300.542 [a]). In this instance, the record reveals that the child was observed in his first grade class and his physical education class at St. Matthew's by respondent's occupational therapist who was a team member at the June 22, 1993 CSE meeting, for purposes of the Federal regulation. Consequently, I find that there is no merit to petitioner's assertion that the CSE's evaluation was defective.

The central issue in this appeal is whether petitioner's child was eligible to be classified for educational purposes as a learning disabled child. Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that the child not be classified as a child with a disability. A learning disabled child is defined in State regulation as:

" A student 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 students 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 student 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." (8 NYCRR 200.1 [mm][6])

The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent 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 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

Petitioner asserts that respondent's CSE erred by "mechanically" applying the State 50 percent standard in determining that her child should not be classified as learning disabled. The school psychologist who supervised the interns who performed the 1992 psychological evaluation and 1993 update testified that a child without a 50 percent discrepancy would not meet the criteria for classification as learning disabled. However, that school psychologist did not participate in the June 22, 1993 meeting at which the CSE recommended that the child not be classified. The CSE chairperson, who is also a school psychologist, testified that the CSE had considered qualitative, as well as quantitative factors, such as teacher descriptions of the child's performance and the occupational therapist's observation of the child in the St. Matthew's School. The chairperson's testimony is unrebuted in the record before me. Therefore, I find that petitioner's assertion is without merit.

As was pointed out by the hearing officer in her decision, the child's cognitive skills have consistently been reported to be in the average to high average range. When tested in the preschool program, the child achieved a general cognitive index of 107. In kindergarten, his mental processing quotient was reported as 100. Both of these measures are comparable to a full scale IQ score in the average range. The private psychologist, who performed the independent evaluation in September, 1992, reported that the child achieved a full IQ score of 115, which is at the beginning of the high average range. Although the private psychologist opined in his testimony at the hearing that the child had superior cognitive skills, his opinion was premised upon the child's score on one subtest of the child's IQ test. All of the other subtest scores of the child were in the average to high average range, as was the child's verbal IQ score of 122. The child's performance upon individually administered achievement tests, such as the Woodcock Johnson Test of Achievement in April, 1992, the Wide Range Achievement Test in September, 1992, and the Wechsler Individual Achievement Test in February, 1993, was consistently in the average range. While not dispositive for evaluation purposes, the child's performance on group administered achievement tests, such as the California Achievement Test in June, 1993 and June, 1994 was also consistent with his cognitive ability.

The child's performance in the classroom, as assessed by his kindergarten and first grade teachers, was also consistent with his cognitive ability. Both teachers testified at the hearing in this proceeding. The child's kindergarten teacher acknowledged that the child had exhibited some delays in acquiring skills, such as reading decoding, but asserted that such delays were not uncommon for children in kindergarten. She testified that, notwithstanding such delays, the child was academically ready to enter the first grade in the 1992-93 school year. The kindergarten teacher also opined that there was nothing which adversely affected the child's educational performance, and that his achievement had been in the average to below average range. The kindergarten teacher testified that the child had not manifested expressive language deficits, and that he could follow directions satisfactorily.

In her testimony, the child's first grade teacher asserted that the child was a typical first grader, who developed appropriate skills as the school year progressed. Although she provided the child with close attention, the first grade teacher denied that the child was overly dependent upon her, and asserted that he was as attentive in class as his classmates. The teacher testified that the child had received some extra assistance from another teacher in St. Matthew's, at petitioner's suggestion. However, the teacher testified that the extra assistance had been discontinued because it was unnecessary. During the 1992-93 school year, the child progressed through five reading levels, from beginning preprimer to first grade, with his classmates. His first grade teacher opined that the child did not exhibit a weakness in reading decoding skills, and that his reading comprehension skills were satisfactory. The teacher further testified that the child's writing was satisfactory. The first grade teacher also testified that the child's work habits and expressive language skills had improved during the 1993-94 school year.

The child's second grade teacher for the 1993-94 school year also testified at the hearing. She described the child as a typical second grader with average to above average academic performance. Although the child received extra assistance in reading at the beginning of the school year, the second grade teacher testified that such assistance was unnecessary and was discontinued. In any event, the child's receipt of extra assistance does not establish that he has a learning disability. Indeed, if the child had been referred by anyone other than his parents, the referral would have had to describe the remedial services that had been provided prior to the referral (8 NYCRR 200.4 [a][2][ii]). During the first two marking periods, the child received "A's" and "B's", except for "C's" in language mechanics and written expression. She also testified that the child did not appear to have an expressive language deficit, and that he had satisfactory work habits.

Petitioner asserts that the hearing officer disregarded the testimony of the preschool program director and that of the private psychologist. The preschool program director opined that the child has an auditory processing deficit, and the private psychologist opined that the child has ADHD, as well as an expressive language disorder. I find that there is evidence in the record to support a finding that the child has an auditory processing deficit. Although the child has normal hearing acuity, the audiological evaluations which were performed in May, 1993 and September, 1993 reveal that the child had difficulty discriminating words which were spoken against a background of other noise, such as might occur in a classroom. In March, 1994, a neurologist advised petitioner that the auditory evaluation data supported the diagnosis of a central auditory processing deficit. However, the record reveals that the child's auditory processing needs have been addressed at the St. Matthew's School by having him seated near his teachers, who monitor his comprehension of their directions. The neurologist, who evaluated the child in December, 1993, reported to the private psychologist that the child "had a normal neurological examination", and that objective testing had confirmed that the child had an attention deficit disorder (ADD) without significant hyperactivity. The neurologist also prescribed the medication Ritalin to address the child's ADD.

The opinions expressed by the preschool program director and the private psychologist must be considered in the context of this proceeding. The issue is not whether the child has a particular physical condition, but whether the child's educational performance is adversely impacted by such condition to the extent that he requires special education and/or related services, which is the criterion for classification under both the Federal and State regulatory definitions of a child with a disability (34 CFR 300.7; 8 NYCRR 200.1 [mm]). Therefore, the fact that the child has an auditory processing deficit and ADD is not dispositive of the question should he be classified as a child with a disability for educational purposes. While I have considered the opinions expressed by the preschool program director and the private psychologist, I do not agree with their assertion that the child's academic performance is only one area to be considered in determining whether he has a learning disability. Indeed, the private psychologist conceded in his testimony that a comparison of the child's academic achievement and his ability was not relevant for him to determine whether the child had a learning disability. However, I find that is very relevant in order to determine if the child meets the Federal and State regulatory definitions of a learning disabled child. I have also considered the private psychologist's findings with regard to the child's emotional status and the child's ADD; I find that there is little, if any, evidence that the child manifests in the classroom the behaviors attributed to him by the psychologist.

In his report, as well as in his testimony, the private psychologist predicted that the child would encounter academic difficulty in the future. However, a child's classification as a child with a disability must be based upon the child's present educational needs, rather than speculation about the child's future success in school (Application of a Child with a Disability, Appeal No. 93-18). Upon the record before me, I find that the child does not meet the Federal and State regulatory definitions of a child with a learning disability.

I have also considered whether the child could be classified as disabled in accordance with the definitions of other health impaired (8 NYCRR 200.1 [mm][10]) and multiply disabled (8 NYCRR 200.1 [mm][8]). In order to be classified as other health impaired, a child must be physically disabled and must have limited strength, vitality or alertness due to chronic or acute health problems. Although the child has been diagnosed as having allergies and ADD, I find that there is no evidence in the record that he has limited strength, vitality or alertness as a result of either condition. A multiply disabled child must have two or more disabilities resulting in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas and must have educational problems which cannot be accommodated in a special education program solely for one of the child's impairments. I find that this classification would clearly be inappropriate. Accordingly, I find that the hearing officer correctly determined that the child was not eligible for classification as a child with a disability for educational purposes under either Federal or State law, nor was he eligible to receive the related services of speech/language therapy and occupational therapy under such laws.

I have considered petitioner's other assertions, and find that they are without merit.

THE APPEAL IS DISMISSED.

Dated: Albany, New York                                                                    ____________________________
             December 8, 1994                                                                                     FRANK MUÑOZ