The State Education Department
State Review Officer

No. 97-21

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her 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 New York

Neal H. Rosenberg, Esq., attorney for petitioner

Honorable Paul A. Crotty, Corporation Counsel, attorney for respondent, Elisa Baldwin, 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 daughter should not be classified as a child with a disability, and which denied petitioner's request for an order requiring respondent to reimburse him for his expenses for his daughter's tuition in private school during the 1996-97 school year. The appeal must be dismissed.

        Petitioner's daughter, who is eleven years old, attended Saint Savior, a Catholic school in the diocese of Brooklyn, through the second grade. Although she received generally satisfactory marks in the first grade at Saint Savior, her reading skills were reported to be unsatisfactory. The child's teacher reported that the girl's grades were impaired by her inability to speak. The child's reading skills improved in the second grade, but she reportedly needed to improve her reading comprehension skills. At the end of the second grade, the girl was reportedly evaluated and medically treated for "elective mutism" at Columbia University's College of Physicians and Surgeons.

        She was enrolled in the 3rd grade at P.S. 321 in Community School District 15 for the 1993-94 school year. On the child's report card, her teacher noted that petitioner's daughter continued to improve her reading skills, but expressed concern about the girl's ability to pass the city-wide third grade reading test. The girl exhibited satisfactory writing skills, but her mathematics skills were reported to be well below grade level. Nevertheless, she scored above the state reference point on the third grade mathematics test of the New York State Pupil Evaluation Program. Her achievement in other subjects was generally satisfactory. Her teacher reported that the child's listening and speaking skills, and her ability to interact with others had improved.

        While in the fourth grade at P.S. 321 during the 1994-95 school year, the girl's reading decoding skills reportedly improved, but her reading comprehension skills continued to be below grade level. She reportedly had difficulty concentrating while reading independently. Her writing skills were generally satisfactory, while her performance on mathematics tests was reportedly uneven. The child's teacher reported that the child had become more verbal in social and academic situations, but that she appeared to be more comfortable sharing her thoughts in a small group setting. On standardized tests, the child's total reading score was at the 45th percentile, and her total mathematics score was at the 31st percentile.

        In April, 1995, the child was seen at her parents' request by a psychiatrist at Columbia University College of Physicians and Surgeons. The psychiatrist reported that the child had exhibited symptoms of inattention, hyperactivity, and impulsivity, and he diagnosed her as having an attention deficit hyperactivity disorder (ADHD). The child also showed signs of oppositionality, and reportedly met the criteria for the diagnosis of an oppositional defiant disorder (ODD). The psychiatrist reported that the child had chronic motor tics, and that a neurologist had reported that the child had vocal tics. He diagnosed the child as having Tourette Syndrome. That physician recommended that the child's ADHD and ODD be treated by the use of the medicine Clonidine.

        In May, 1995, the girl was privately evaluated by a licensed psychologist, who reported that the girl had achieved a verbal IQ score of 93, a performance IQ score of 102, and a full scale IQ score of 97. The psychologist opined that the child's IQ scores might have been affected by her anxiety, impulsivity, and occasional oppositionalism while being tested. Academically, the child achieved standard scores of 97 for basic reading, 101 for reading comprehension, 100 for numerical operations, 99 for mathematical reasoning, and 79 for spelling. The psychologist reported that the girl evidenced mild delays in her expressive and receptive language processing skills, and a one to two-year delay in her graphomotor (handwriting) skills. The psychologist also reported that the child was able to do well at the beginning of a task, but she had difficulty in sustaining her interest over time, which was characteristic of a child with ADHD. She opined that petitioner's child was appropriately placed in a regular education class, but that she could benefit from individual tutoring, or resource room instruction, with an emphasis on her mathematics, writing, reading comprehension and study skills. She suggested that the child and her parents receive counseling. It should be noted that the child was being tutored at the time of her evaluation.

        A neurologist who evaluated the child in June, 1995 reported that the child did not appear to have any definitive organic neurological dysfunction. Although the child appeared to have the "remnants" of a motor tic disorder, and might qualify for being diagnosed as having Tourette Syndrome, the neurologist opined that the latter diagnosis was less problematic than the child's ADHD and ODD.

        For the fifth grade during the 1995-96 school year, the child was placed in an inclusion class consisting of 28 regular education children and 8 special education students. The inclusion class was taught by a regular education teacher and a special education teacher, who were assisted by an aide. The special education teacher who was assigned to that class testified that the children were frequently divided into small groups, where they received more individualized attention. The child was academically and socially successful in her fifth grade class.

        In April 1996, the child was referred by her parents to the CSE. In a social history of the child, her parents were reported to be satisfied with her fifth grade placement, but concerned about the educational opportunities which were available to her as she moved to an intermediate school for the sixth grade. Respondent's school social worker noted that the child's parents had indicated that the girl appeared to be better able to focus because she was taking Clonidine. Petitioner reportedly indicated that the child yelled or cried at home, where her behavior was different from the behavior she exhibited in school.

        In May, 1996, one of respondent's school psychologists evaluated the child, who achieved a verbal IQ score of 88, a performance IQ score of 100, and a full-scale IQ score of 93. She reportedly exhibited difficulty with social/practical problem solving, yet presented a good understanding of cause and effect and good social judgement with the assistance of visual clues. The girl evidenced no sign of a perceptual motor deficit. Projective testing disclosed that the child had a reserved accessability, some controlled anxiety, and possible self-doubt about her ability to accomplish tasks in school. In June, 1996, an educational evaluator noted that the child's score on a city-wide reading test was at the 40th percentile. She reported that the girl's expressive receptive language skills ranged from the fourth to the fifth grade, and that her short-term memory skills were significantly above age expectancy. On the Woodcock-Johnson Psycho-Educational Battery-Revised, the child achieved standard scores of 84 for letter-word identification, 107 for passage comprehension, 92 for calculation and 100 for applied mathematical problems. Her writing skills were reported to be age appropriate. The girl was formally observed in her classroom on June 3, 1996. The observer reported that the girl was engaged in the activity at hand when a teacher was involved with her, but the child's attention wandered when she was not. She also noted that the child had briefly put her fingers in her mouth.

        In a report to the CSE, the regular education teacher in the child's inclusion class estimated that the child was reading at the fourth to fifth grade level, and that her mathematics skills were at a fourth-fifth grade level as well. She reported that the girl was distractible, and that she exhibited some fearfulness when speaking in large groups. The teacher noted that the child was more than a year younger than some of the children in her class, and was physically smaller than her classmates. She indicated that petitioner's child needed time to mature in a supportive, inclusive setting, but that the child had "...come a long way in understanding herself as a learner" (Exhibit 11).

        On June 18, 1996, the CSE recommended that petitioner's daughter not be classified as a child with a disability, and that she remain in respondent's regular education program. The child's parents unilaterally enrolled her for the 1996-97 school year in the Mary McDowell Center for Learning (Mary McDowell). Mary McDowell, which is located in New York City, has not been approved by the State Education Department as a school for children with disabilities. On September 3, 1996, petitioner's attorney requested that an impartial hearing be held to review the CSE's recommendation.

        At the impartial hearing, which was held on November 20, 1996, the school psychologist who had evaluated the child in May, 1996 described the girl as being somewhat tense and having feelings of self-doubt and vulnerability. Nevertheless, the school psychologist testified that those emotional concerns did not afford a basis for classifying the child because there was no evidence that her academic performance was impaired. Another school psychologist, who was a member of the CSE, testified that the girl's academic achievement was commensurate with her cognitive ability. He also testified that when he observed the child in her private school in November, 1996, she did not evidence any sign of hyperactivity or impulsivity. An educational evaluator who was a member of the CSE testified that petitioner's daughter had some difficulty identifying words, but she had made significant progress in reading, and that her mathematics skills were at the 50th percentile. She opined that the child would not appropriately be classified as learning disabled. The special education teacher who had been assigned to the child's fifth grade class testified that the child was extremely social, and did not evidence signs of a learning disability. Although mathematics was difficult for the child, the special education teacher testified that the child's performance had improved.

        A psychologist who was employed by Mary McDowell opined at the hearing that petitioner's daughter was learning disabled because of a language processing disorder. However, she acknowledged that respondent and her employer did not use the same definition of a learning disability. The child's science teacher at Mary McDowell testified that the child had a learning disability which was manifested in her difficulty following multi-step directions and understanding abstract concepts. She also testified that the girl needed to be refocused, and had difficulty remaining in her seat during her science class. The child's primary teacher at Mary McDowell testified that the girl often asked for clarification of written directions before even attempting to read the directions, and some times she would not begin to perform a task, if her questions were not answered. The teacher further testified that petitioner's daughter had difficulty choosing words to retell stories which she had read.

        In a decision dated February 18, 1997, the hearing officer found that petitioner's daughter was performing at or above her grade level in all subjects, except mathematics in which the child's skills were mildly delayed. She further found that the child's social skills were above average. The hearing officer acknowledged that the child had some emotional concerns, but she found that they had no bearing upon the child's learning or academic performance. She held that there was no basis for classifying the girl as a child with a disability for educational purposes. Having determined that the child should not be classified under Federal or State law, the hearing officer denied petitioner's claim for reimbursement of his expenditures for the girl's tuition at Mary McDowell during the 1996-97 school year.

        Petitioner contends that the hearing officer's determination that the child should not be classified as a child with a disability for educational purposes was erroneous. He asserts that three independent specialists have diagnosed his daughter as having ADHD, ODD, and Tourette Syndrome, and that those disorders have had an adverse impact upon the child's educational performance while she was enrolled in a regular educational program. Petitioner asserts that the child's public school teachers have described the child as being distractible, fearful, unresponsive, and reluctant to attempt new tasks, which is consistent with the testimony of the child's teachers in Mary McDowell. He notes that the school psychologist member of the CSE testified at the hearing that he believed that the child was "emotionally handicapped" (Transcript, page 18). Petitioner also challenges the accuracy of the testimony by another of respondent's school psychologists with regard to whether the girl was at or near her appropriate grade level academically.

        The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). 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 have a specific physical or mental condition which adversely impacts upon the child's educational 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. 95-11).

        Although petitioner has alluded to his child's emotional fragility and to the school psychologist's use of the term "emotionally handicapped," it is not clear whether he is in fact claiming that the girl is emotionally disturbed, as that term is defined in 8 NYCRR 200.1 (mm)(4). In any event, I have considered that possibility, and I find that the record does not demonstrate that the girl has exhibited any of the four characteristics described in the regulatory definition over a long period of time and to a marked degree as is required for classification as emotionally disturbed. I note that the school psychologist who had described the child as emotionally handicapped very clearly indicated that she could not be classified for educational purposes because she did not evidence an academic disability. He also discounted the significance of the child's nail biting. Although the child has been diagnosed as having ODD, there is little, if any, evidence that she has manifested this condition in school. The fact that she was apparently mute during her interview for admission to Mary McDowell does not afford a basis for finding that she should be classified as emotionally disturbed. The record reveals that she did not continue to be mute after entering the private school.

        I have also considered whether the child could be classified as a child with a learning 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). In this instance, there is no evidence that the child has an organic brain dysfunction. She appears to have some difficulty with her word retrieval skills, but has nevertheless academically achieved at a rate which is commensurate with her cognitive ability. I have considered the results of the child's re-evaluation by a private psychologist in July, 1996 (Exhibit A). I find that her standard scores on the Wechsler Individual Achievement Tests in July, 1996 were consistent with the standard scores which she achieved when she was evaluated by respondent in June, 1996 (Exhibit 10). The child's weakest skill in the June testing was in letter-word identification, which was nevertheless in the low average range, and it was consistent with her cognitive ability.

        A child with Tourette Syndrome may be classified as other health impaired, when the child's learning has been impaired by his or her limited strength, vitality or learning (8 NYCRR 200.1 [mm][10]). However, there is no indication in the record that this child has manifested the symptoms of Tourette Syndrome in class. Indeed, one of her fifth grade teachers testified that she was aware of the symptoms, and that the child had never exhibited them in class. Having ADHD may also afford a basis for classification as other health impaired, provided that the disorder affects the child's academic performance. However, I find that the record which is before me does not demonstrate that the child's ADHD has impaired her academic performance. While this child may benefit by, and has benefitted by additional help in a smaller classroom setting, she fails to meet the definition of a child with a disability, for educational purposes.






Dated: Albany, New York __________________________
August 1, 1997 ROBERT G. BENTLEY