The State Education Department
State Review Officer

No. 95-13

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 City School District of the City of Rochester

Louis N. Kash, Esq., attorney for respondent, Donald T. Schmitt, Esq., of Counsel


        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 be classified as mentally retarded and placed in a self-contained special education class. The appeal must be dismissed.

        Petitioner's child, who is eight years old, is currently enrolled in a combined kindergarten-first grade class in respondent's School 57. During the 1991-92 school year, the child was enrolled in a one-half day pre-kindergarten program. In September, 1992, he entered kindergarten in a combination kindergarten-first grade class, where he had difficulty with his language skills, work study skills, and social/emotional development. At the hearing in this proceeding, the child's teacher testified that the child had difficulty with sound-symbol associations, and was weak in vocabulary, categorization, sequencing, differences and similarities. He also reversed some of the numbers which he wrote. On the child's kindergarten report card, his teacher indicated that the child needed to show more effort, and to be more attentive in class.

        The child remained in the combined class with the same teacher for first grade during the 1993-94 school year. There were 27 children in the class. The teacher, who was assisted by a part-time aide, testified that she again tried to teach him the skills which he had not acquired in kindergarten during the previous school year. During most of the 1993-94 school year, the child received Chapter I "push-in" remedial services three times per week in a small group of four or five children. He was also assisted by a school social worker because he had difficulty controlling his anger and frustration. His teacher testified that the child would not accept help from his peers because he was frustrated by his inability to do the things which they did. She testified that the child required constant redirection to remain on task.

        In October, 1993, the child's teacher made a "request for student assistance" (RSA), which in respondent's district is a way of providing supportive services without referring a child to the CSE. In response to the RSA, the child was screened by one of respondent's school psychologists in December, 1993. The child, who was six years and nine months of age when screened, was found to have a mental age of four years and six months, and achieved a standard score of 71, which is within the borderline range of cognitive ability. The school psychologist also performed certain perceptual tests. The child's oral and written language was also screened. The record does not reveal what, if any, supportive services were provided to the child as a result of the RSA.

        On March 15, 1994, the child's teacher referred the child to the CSE because he was functioning far below grade level. She reported that the child had difficulty in all academic areas, and with his expressive language. She further reported that the child exhibited poor social skills, and responded inappropriately in many situations. The teacher reported that the child was unable to relate to many activities and that he fixated on the repetition of tasks which he could do. The teacher also reported that she had used a multi-sensory approach in providing the child with instruction. Petitioner agreed to have the child evaluated by the CSE. In the child's social history, petitioner acknowledged that the child was having difficulty in school, and reported that the child became upset when he was unable to complete his schoolwork.

        The child was formally observed in class on March 17, 1994 by a certified special education teacher, who reported that the child was very unfocused and distracted during a mathematics lesson. The observer noted that the child required constant interaction, verbal cues and physical contact by an adult to remain within the limits of his instructional group. She further reported that the child displayed very little emotion when interacting with his teacher, and that his interaction with peers was limited. He reportedly made no attempt to initiate conversation. In a health assessment completed on March 28, 1994, the child was reported to be generally healthy and without any noticeable health needs.

        On April 13, 1994, the child was evaluated by the school psychologist who had screened the child in December, 1993. The school psychologist reported that the child achieved a verbal IQ score of 71, a performance IQ score of 72, and a full scale IQ of 69. The child exhibited relative strength in his verbal comprehension, fund of general information, and short-term auditory memory. His short-term visual memory, visual processing and visual whole-part relationship skills were reported to be age appropriate. His understanding of social rules and expectations was described as below average. The child's attention to visual details and sequencing skills were in the borderline range, as were his language development, and vocabulary skills. The school psychologist reported that the child's numerical reasoning skills and verbal abstract thinking abilities were in the mentally deficient range. At the hearing, the school psychologist testified that the child did well on mechanical tasks and those requiring rote memory skills, and not as well on tasks requiring higher levels of cognitive skills.

        The school psychologist also administered standardized achievement tests to the child, whose standard scores of 61 in mathematics and 64 in reading were within the mentally deficient range. Although the child's standard score of 85 in writing placed him within the average range, the school psychologist testified that such score could be attained by merely being able to write one's first name. In her evaluation report, the school psychologist indicated that the child inconsistently identified upper case letters, and had even more difficulty with lower case letters. He reportedly could not decode even simple words. The child's school readiness skills were found to be at the age equivalence of a five year old child, although he was seven years old when tested. The child's visual motor integration skills were described as age appropriate, but his visual processing skills were significantly lower when he did not have a model before him. His auditory recall skills were reported to be between the low average and average ranges.

        The child's adaptive behavior was assessed with information provided by petitioner and the child's teacher. His communication skills were reported to be similar to those of a child of the age of two years and two months, while his daily living skills were similar to those of a child of the age of three years and ten months. The child's socialization skills were described as being at the level of a one and one-half year old child. His adaptive behavior was reported to be within the mentally retarded range. Projective tests revealed that the child had a poor self-concept, feeling of inadequacy, and high levels of frustration and tension. The school psychologist opined that the child functioned within the mentally retarded range, and was unable to learn within a regular education class.

        The child's speech/language skills were assessed on April 20, 1994. His hearing, voice and fluency were reported to be within normal limits. The evaluator further reported that the child exhibited an inconsistent pattern of articulation errors. The child achieved an age equivalent receptive language score of 4.8, when he was seven years and one month old. He also achieved age equivalent scores of 5.8 for auditory comprehension language, 4.9 for oral vocabulary, 5.10 for grammatical understanding, 7.4 for sentence imitation, and 3.3 for picture vocabulary skills. The speech-language therapist who evaluated the child reported that the use of a single modality, a slow verbal presentation, prompts, and multiple examples helped to improve the child's performance. The speech-language therapist described the child's learning style as concrete, and reported that his language skills were moderately delayed, or in the mentally deficient range. She recommended that the child's needs be met in a small classroom setting with hands-on instruction and opportunities to increase his oral expression.

A building level pupil personnel services team reviewed the child's evaluation reports on April 21, 1994, and recommended that the child be classified as mentally retarded and placed in a self-contained class. On May 27, 1994, petitioner met with the CSE, which recommended that the child be classified as mentally retarded, and that he receive instruction in all subjects, except art, music, and physical education, in a self-contained special education class with a 12:1 + 1 child to adult ratio. The minutes of the meeting reveal that the CSE determined that such a class was the least restrictive environment for the child because he required so much adult attention and encouragement. In the child's proposed individualized education program (IEP), the CSE indicated that the child's program would focus upon a life skill curriculum, and included annual goals for the improvement of his listening, speaking, and writing skills, in addition to developing his reading and mathematics skills.

On June 27, 1994, petitioner was sent a notice of the CSE's recommendation and the child's IEP, together with a request that she consent to his placement. Shortly after a second request for her consent was sent to petitioner on August 3, 1994, she signed the child's IEP. In a letter dated August 19, 1994, petitioner was informed that the child would be placed in a special education class in respondent's School 44. However, on that same day, the CSE received a written note from petitioner, in which she withdrew her consent to the child's placement.

An impartial hearing began on October 24, 1994, but could not be completed because the child's teacher for the 1992-93 and 1993-94 school years could not attend. The hearing was concluded on December 2, 1994, following the testimony of the child's former teacher and the child's private tutor. The tutor disclosed that the child had recently been found to need eyeglasses because of astigmatism in both eyes, and that he was scheduled to have an independent evaluation performed at the Genesee Hospital within 4 to 12 weeks from the date of the hearing. The tutor, who had assisted the child for approximately one month, opined that the child was capable of doing his school work, but that he had declined to do it because of his defiant behavior.

In a decision dated January 24, 1995, the hearing officer held that respondent had met its burden of proving that the child met the regulatory criteria for classification as mentally retarded for educational purposes. The hearing officer further held that the recommended program would be appropriate to meet the needs of the child.

Petitioner asserts that she disagrees with "... some of the results [of] the CSE." However, she has not identified specific parts of the CSE's recommendation with which she agrees or disagrees. At the hearing, petitioner indicated that she was primarily opposed to the child's proposed classification as mentally retarded. In view of the fact that petitioner is not represented by an attorney or assisted by an advocate in this appeal, I will construe her request for review broadly to include the child's proposed placement, as well as his classification.

The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a][1]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

A mentally retarded child is defined by State regulation as:

"A student who, concurrent with deficits in adaptive behavior, consistently demonstrates general intellectual functioning that is determined to be 1.5 standard deviations or more below the mean of the general population on the basis of a comprehensive evaluation which includes an individual psychological evaluation." (NYCRR 200.1 [mm] [7])

The record reveals that the child received a comprehensive evaluation, including the required psychological evaluation. In that evaluation, the child was found to have a full scale IQ of 69, which is more than 1.5 standard deviations below the mean of the general population. However, a low IQ score is not determinative of the appropriateness of a classification as mentally retarded, unless the child also has concurrent deficits in adaptive behavior (Application of the Bd. of Ed. Schalmont CSD, Appeal No. 90-19; Application of a Child with a Disability, Appeal No. 94-17). In this instance, petitioner and the child's teacher separately provided information about the child's adaptive behavior to the school psychologist. Based upon the information provided by petitioner, the child achieved a standard score of 67 for adaptive behavior. Using the information provided by his teacher, the child achieved a standard score of 61 for adaptive behavior. Under either measure, the child's adaptive behavior is consistent with the level of his intellectual functioning. The child's significant delays in his expressive and receptive language skills are also consistent with the deficits in his cognitive and academic skills, and do not afford a basis for classification as speech impaired, rather than mentally retarded (Application of a Child with a Disability, Appeal No. 94-17).

The record also reveals that during the 1993-94 school year, when the child tried for a second time to master kindergarten level skills, he received various supportive services from a Chapter 1 teacher, a social worker, and a learning strategy specialist (special education teacher). The learning strategy specialist testified that she had provided small group instruction in mathematics and individual instruction in writing to the child during March and April, 1994. At the request of the child's teacher, the learning strategy specialist also modified the regular education curriculum for the child. Notwithstanding the additional assistance which he had received, the child made minimal academic progress during the 1993-94 school year, as his report card reflects. His teacher testified that the child required constant review and reinforcement " ... going over things several times and then, even then, not really understanding." (Transcript, page 51) She further testified that by the end of the 1993-94 school year, the child could recognize more letters of the alphabet than at the end of prior school years, but that his performance was inconsistent and he had still not learned any sound symbol association. In mathematics, the child was still unable to do simple addition and subtraction, even with the use of manipulatives. His teacher and the learning strategy specialist opined that the child would benefit from "concrete", rather than abstract, learning and that his instruction should include repetition.

At the hearing, petitioner introduced evidence that the child's vision had changed since it was last tested by respondent in November, 1993. At that time, the child was found to have 20/30 vision in each eye. One year later, in November, 1994, he was reported to have 20/40 vision, as well as astigmatism, in each eye, and to require the use of eye glasses. I have considered whether this new information provided by petitioner affords a basis for annulling the CSE's recommendation, and I find that it does not. The child's vision did not affect the results of his IQ test because much of the test is administered auditorily, and the remainder of the test is not dependent upon having adequate distance vision. As noted above, the IQ test results were consistent with the level of the child's adaptive behavior which would not have been affected to any significant extent by the reported change in the child's vision.

I have also considered the fact that petitioner had arranged to have the child independently evaluated at the Genesee Hospital. Federal and State regulations accord each parent of a child having, or suspected of having, a disability the right to obtain an independent evaluation if the parent disagrees with a school district's evaluation (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]). Although the hearing officer could have agreed to adjourn the hearing, with the consent of both parties, to receive the results of the independent evaluation, he was not required to do so. In view of the fact that the CSE's recommendation had been made approximately six months before petitioner disclosed that she had arranged for an independent evaluation, I find that the hearing officer did not abuse his discretion by not adjourning the hearing. Petitioner will have the opportunity to present the independent evaluation results to the CSE as soon as she has obtained the results. Upon the record before me, I find that the child's educational performance is adversely affected by his limited cognitive ability, and that he requires special education. I further find that the child would be appropriately classified as mentally retarded.

The 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 CSE 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 the evaluation 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).

I find that the IEP prepared for this child by the CSE accurately reflects the results of the child's evaluations. Although the IEP describes the child as a multi-sensory learner, while the speech/language evaluator reported that the child appeared to learn best using a single modality, I find that there is other evidence in the record to support the IEP's description of the child's learning style. The learning strategy specialist, who had worked with the child in class for two months, testified at the hearing that the child responded best to a multi-sensory manipulative approach in mathematics. The IEP should be revised to describe the child's adaptive behavior in terms of his deficits and abilities, in order to prepare appropriate annual goals to address his adaptive behavior needs, but it is otherwise adequate. The annual goals which are included in the child's IEP appropriately address the deficits in his social, language arts and mathematics skills. The IEP provides that the child would receive primary special education instruction in every subject, except art, music, and physical education. In view of the child's limited skills, I find that he requires specialized instruction in order to achieve his IEP goals.

The CSE recommended that the child be instructed in all academic subjects in a self-contained class of no more than twelve children, a teacher and an aide (12:1+1). At the hearing, the child's teacher testified that the child rarely conversed with her, and did not respond to her in complete sentences. She further testified that the child's responses were frequently not related to the questions posed. The teacher also testified that the child was very easily distracted, and always had to be prompted and coaxed to perform tasks. Although the teacher had divided her class of 24 children into various instructional groups, for which she had the assistance of an aide, she testified that the child functioned less independently than her younger kindergarten children, and had required more help than any other child in the class. The learning strategy specialist testified that the child was withdrawn and distracted in class, and that she had provided individual instruction in writing to him, in part because he frequently distracted other children during such instruction. The school psychologist testified that the child's behavior was off-task during her observation of him in class, and that the child required adult assistance on an almost constant basis. She opined that the child would do much better in a special education class. The CSE chairperson testified that the proposed special education class would provide the child with language based instruction, in addition to addressing the child's management needs. Upon the record before me, I find that the child requires specialized instruction in a self-contained class, and that in view of his significant management needs, placement in a 12:1+1 class is the least restrictive environment for him (8 NYCRR 200.6 [g][4][i]).

State regulation requires that children in special education classes be appropriately grouped, using as criteria the levels of their academic achievement and learning characteristics, the levels of their social development, the levels of their physical development, and the degree of their management needs (8 NYCRR 200.6 [a][3]). At the hearing, respondent introduced into evidence a profile of the children in the proposed class. I find that the child would be appropriately placed in the proposed class.


Dated: Albany, New York                                                                        __________________________
             April 20, 1995                                                                                    ROBERT G. BENTLEY