The State Education Department
State Review Officer

No. 97-49



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 New York

Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Sheri P. Rosenberg, Esq., of counsel


        Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that the petitioner's son should not be classified as a child with a disability. The appeal must be dismissed.

        Petitioner's son, who at the time of the hearing was 10 years old and in the fourth grade, attended the Rodeph Shalom School from nursery school through the third grade. While at Rodeph Shalom, the child attended a resource room daily. Petitioner believed that his son did not get the support he needed at Rodeph Shalom, so he made several attempts to enroll his son in Columbia Grammar and Preparatory School (Columbia Grammar) and its Learning Resource Center. Columbia Grammar is a highly competitive independent school for pre-K through grade twelve. The Learning Resource Center is a support program designed to assist children of average or above average intelligence with a designated learning disability to succeed in the competitive school. In June of 1996, petitioner enrolled his son in the fourth grade at Columbia Grammar for the 1996-1997 school year. The child also was admitted to the Learning Resource Center. At the time of the hearing he was receiving one-to-one services on a daily basis for approximately 40-45 minutes from a learning specialist at the Learning Resource Center. He also was receiving the services of a speech/language pathologist at the Learning Resource Center twice per week. In addition, he was receiving private tutoring provided by his parents and psychotherapy twice per week.

        On August 12, 1996, petitioner referred his son to the CSE for evaluation and placement. The CSE initiated an evaluation which consisted of a social history, a psychological report, an educational evaluation, a speech/language evaluation, a classroom observation conducted in the child's art class, and a medical report by the child's pediatrician, who diagnosed the child as having an Attention Deficit Hyperactivity Disorder (ADHD) with associated learning disabilities of possible neurological etiology.

        Petitioner submitted a private psychological evaluation which was prepared in October 1995. The private psychologist reported that the child achieved a verbal IQ score of 99 (47th percentile), a performance IQ score of 78 (18th percentile) and a full scale IQ score of 87 (19th percentile). Because the child's performance was erratic, the psychologist used prorated scores to better indicate the child's potential. The psychologist determined that the child might function at a level above what the scores suggested and suspected that his potential was higher. Additionally, the child achieved in the 53rd percentile for reading, the 55th percentile for spelling and the 30th percentile for mathematics. The psychologist reported that the child tested within normal limits for speech and language. Other testing showed that the child did have difficulty with grapho-motor control and management of patterns set out in space. The psychologist observed that the child performed best when an adult was at his side helping him to stay on task and explaining each task to him. She recommended that he gradually be weaned from this type of structure.

        A social history was completed on October 3, 1996, based on an interview with the child's mother. The history revealed that the child contracted spinal meningitis when he was five years old and has had learning difficulties since that time. He was seen by a neurologist who supervised medication trials. The child's mother indicated that the child was taking Ritalin and Clonidine, and that he had asthma.

        A school psychologist completed an updated psychological evaluation on October 6, 1997 which consisted of a review of the October, 1995 private psychological report and the completion of projective tests. The school psychologist indicated that the child experiences frustration and anxiety at times, primarily related to school. She observed the same perceptual delays that were noted in the October, 1995 psychological report, and she suggested that the boy practice with his visual organizational skills (Exhibit 6).

        An educational evaluation conducted on October 23, 1996 revealed that the child demonstrated academic skills at or above grade level. He achieved grade equivalent scores of 4.4 in reading, 5.4 in mathematics, and 3.5 in dictation (spelling). The evaluator identified weaknesses in the boy's spelling and word usage, reading comprehension, and math calculations. The report indicated that the child would benefit from remedial support to close the gaps in those areas.

        A speech/language evaluation performed on October 31, 1997 demonstrated that the child was functioning in the average range of development, with some weaknesses in categorizing words, identifying differences and using attributes. The child's articulation and hearing were found to be adequate. The speech language pathologist recommended additional classroom stimulation to remediate areas of delay.

        The social worker who observed the boy in his art class reported that the boy had been engaged while working on a project, but he sat by himself and appeared to talk to himself after his project was completed.

        The CSE met on December 5, 1996. Based on a review of the above information, the CSE recommended that the petitioner's son not be classified as a child with a disability because the boy was at or above grade level in his academic skills. Petitioner requested an impartial hearing, which was held on April 14, 1997, to review the CSE's recommendation.

        At the hearing, petitioner, the coordinator of the Learning Resource Center at Columbia Grammar and the child's learning specialist at the Learning Resource Center testified. The coordinator of the Learning Resource Center testified that she and her colleagues believed that the child had learning disabilities because the October, 1995 psychological evaluation had indicated that he does have learning disabilities (Transcript, page 66). The child's learning specialist testified that the child required constant one-to-one assistance with all subjects and special modifications for testing. She opined that he would be "totally lost" in a regular education program with a large class size. She explained that the child had weak articulation, a mild oral motor weakness, slurred speech, and a sequencing difficulty with multi-syllabic words. She indicated that he needed a tremendous amount of reinforcement, which he was receiving from the Learning Resource Center to gain mastery of the curriculum (Transcript, pages 80-90).

        The psychologist member of the CSE and the educational evaluator testified for respondent board of education. The educational evaluator testified that the child had difficulties in the areas of reading comprehension, mathematical calculations, and dictation. She indicated that he needed help developing strategies for self-correction techniques. She testified that regular classroom teachers are trained to identify such weaknesses and could provide the support which petitioner's son needed (Transcript, page 22).

        The hearing officer rendered her decision on May 19, 1997. She found that the CSE had properly declined to classify the child as learning disabled because he did not evidence a severe discrepancy between his expected and actual achievement. However, she ordered the CSE to obtain a report from the child's neurologist, and to reconvene to consider whether the information from that report would afford a basis for classifying the child. Given her determination that the child did not meet the criteria for classification, the hearing officer did not address petitioner's request for reimbursement.

        Petitioner challenges the CSE's recommendation on both procedural and substantive grounds. I will address his procedural challenge first. Petitioner alleges that the CSE made no provision to have the child's teacher present at the meeting. If a child is not in public school, the school district may determine which teacher will participate in the meeting (34 CFR 300.344 note [1][c]). As the child was attending private school, the respondent had the right to determine which teacher would participate in the meeting. Therefore, respondent was free to designate one of its special education teachers to serve as the child's teacher member of the CSE (Application of a Child Suspected of Having a Disability, Appeal No. 96-57).

        Petitioner also alleges that the CSE lacked all of its required members at its December meeting. The IEP which was prepared at that meeting was signed by a school psychologist, an educational evaluator, and the parent member, as well as the child's parents. There was no indication in the record that a representative of the school district who is qualified to provide, administer or supervise special education as required by 8 NYCRR 200.3(c)(2) was present at the CSE meeting. At the hearing, respondent requested the opportunity to submit a post-hearing document from the CSE social worker indicating that he was in fact present at the December meeting. The hearing officer agreed to accept such a document over the objection of petitioner's attorney. I note that the document was provided as directed by the hearing officer, and it revealed that the CSE social worker had also attended the meeting. Under the circumstances, I find that the CSE committee was properly constituted.

        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. 94-42).

        In this case, the child is alleged to have 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 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 alleges that the CSE was aware that the child had ADHD. A child with ADHD 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]). Although having ADHD may afford a basis for classification as other health impaired if the disorder affects the child's academic performance, I find that the record does not demonstrate that the child's ADHD has impaired his academic performance.

        Petitioner also suggests that his son's observation should have been conducted in a more academic oriented class. State regulation provides that the district shall ensure that the evaluation includes an observation of the student in the current educational setting (8 NYCRR 200.4[b][4][viii]. The regulation does not specify in which class the observation must be conducted. The record shows that the evaluation occurred in art class. I find that this meets the requirement of the child's current educational setting.

        Based on the record before me, I find that there is no evidence that the child has a learning disability as defined by Federal or State regulation. Although there is evidence of some gaps in his performance, he is nevertheless able to function above or near grade level. The fact that the child would benefit from remedial assistance does not afford a basis for classifying the child. Indeed, if the child had attended public school, respondent's staff would have been required to describe the steps which had been taken to remediate the boy's performance before referring him to the CSE (8 NYCRR 200.4[a][2][iii]).

        Lastly, petitioner claims that although he complied with the hearing officer's order to provide a neurological assessment to the CSE, the CSE has taken no further action. Respondent asserts that its CSE had been scheduled to meet with petitioner on October 27, 1997, but the meeting was adjourned at the request of petitioner's attorney. I find that this issue has no bearing on the hearing officer's finding. If the CSE fails to meet with him, petitioner should request a hearing. If petitioner is dissatisfied with the CSE's recommendation after the CSE reviews the results of the neurological assessment, he may also request a hearing.





Dated: Albany, New York __________________________
March 2, 1998 ROBERT G. BENTLEY