The State Education Department
State Review Officer

No. 97-52




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.

        At the time of the hearing, petitioner's son was 15 years old, and in the tenth grade at Columbia Grammar and Preparatory School (Columbia Grammar), a highly competitive college preparatory school. He was admitted to Columbia Grammar in the seventh grade, upon condition that he receive educational support outside of school. The child had a private tutor four times per week until an opening for him became available at Columbia Grammar's Learning Resource Center, when he was in the eighth grade. The Learning Resource Center reportedly provides extra structure and support to help students succeed in the regular education program (Transcript, page 72). The child attended the Learning Resource Center one period each day for 45 minutes to address the difficulties he was reportedly having in the regular classroom.

        Prior to enrolling in Columbia Grammar, the child attended Rodeph Shalom School from nursery school through sixth grade. Beginning with kindergarten, he received resource room services three times per week, and he was tutored two times per week because of language and grapho-motor (handwriting) difficulties.

        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 classroom observation conducted in the child's math class, and a medical report by the child's pediatrician, which indicated that the child had learning disabilities of possible neurological origin.

        Petitioner submitted a private psychological evaluation from April-May, 1990 when the child was nine years old. The private psychologist reported that the child had a learning disability based on problems with management of patterns set out in space, difficulties managing phonemes, and semantic syntactic and formulation problems.

        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 three, after which he became a bedwetter, had difficulty learning to write, and had problems with visual tracking and visual scanning. The child's mother indicated that though the child had compensated for his difficulties, reading was still a struggle for him. The child's mother also indicated that the child received psychotherapy from the ages of four through ten. Additionally, the child’s mother indicated that the child was tried on Ritalin, but it did not have an effect and he was resistant to it.

        A school psychologist completed a psychological evaluation on October 23, 1996. The school psychologist reported that the child achieved a verbal IQ score of 125, a performance IQ score of 94, and a full scale IQ score of 111, which placed him in the high-average range of intelligence overall with superior verbal reasoning skills and average nonverbal abstract reasoning skills. The school psychologist noted that the 31 point discrepancy between the child’s verbal and performance scores was statistically significant and reflective of a perceptually based learning disability which prevented the child from reading fluidly and visually analyzing stimuli in his environment. Overall, the school psychologist rated the child's verbal skills as outstanding. She noted significant scatter on performance tests with scores ranging from borderline to high average. As the tests became more abstract, the child had more difficulty. She stated that the child had learned to compensate for his learning problems, and had positive self-esteem. The school psychologist concluded that the child qualified for testing modifications on college entrance exams, but she did not recommend that he be classified, or that any special education service be provided to him.

        In an educational evaluation conducted on October 31, 1996, the child demonstrated that he had academic skills which were above his grade level. He achieved grade equivalent scores of 11.1 in reading, 14.8 in mathematics, 16.9 in reading comprehension, 11.6 in science and 11.1 in social studies. His lowest grade equivalent score was 8.2 on letter-word identification, but it was still within the normal range. The evaluator reported that word analysis was the child's area of weakness. The evaluator indicated that the child's academic skills were well developed, and not in need of remediation. However, she noted that the child worked slowly, and that he might need extra time to demonstrate his knowledge.

        The social worker who observed the child in math class reported that the child contributed significantly to the class, and was focused, attentive and appropriate throughout the class.

        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 his academics were above average, and they were consistent with his intellectual ability. The CSE noted that though the child had relative weakness in perceptual motor skills, he had developed compensatory strategies.

        Petitioner requested an impartial hearing, which was held on April 14, 1997, to review the CSE's recommendation. He contended that his son should have been classified by the CSE, and he sought an order requiring respondent to pay for his son's tuition in Columbia Grammar during the 1996-97 school year. At the hearing, petitioner submitted a language evaluation completed in July 1988 when the child was seven years old (Exhibit H). The evaluator reported that the child had a strong lexicon, which he used appropriately. The evaluator noted mild difficulties in the child's ability to decode longer, more complex linguistic utterances. However, the evaluator did not recommend direct language remediation, because he believed that the child’s areas of weakness could be addressed informally through activities at home or with the child’s tutor.

        Petitioner also submitted a neurological evaluation completed on April 5, 1990 (Exhibit I), when the child was nine years old. The neurologist reported that the boy exhibited a number of developmental soft signs, but that there were no focal specific abnormalities. Cognitive test results revealed an impulsivity which interfered with the child’s ability to work to his maximum potential. The neurologist also noted that the child had some visual motor weakness. She recommended formal psychometric testing because she believed that the child might benefit from stimulant medication.

        The child’s semester reports from Columbia Grammar for January 1997 also were submitted into evidence. The boy received a B- in English, a B- in mathematics, a B in chemistry, a C in Spanish, and a B in history. The semester report from the Learning Resource Center noted the child's improved writing skills, and an improvement in his ability to read for understanding.

        The child's learning specialist from Columbia Grammar testified at the hearing. She indicated that the child had a perceptually based learning disability, and that his primary difficulty was with his expressive language skills. She also testified that organizational problems were pervasive throughout the child’s work. She opined that the child would be a poor student without the help of the Learning Resource Center (Transcript, pages 72-76).

        The hearing officer rendered her decision on June 6, 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. She noted that although the boy appeared to have difficulty reading fluidly and visually analyzing stimuli, the evidence did not support the conclusion that the boy's difficulties had severely impaired his academic performance. She also noted that he had learned compensatory strategies. In the absence of a significant discrepancy between the boy's ability and academic performance, the hearing officer declined to classify him as learning disabled. However, she ordered the CSE to obtain a current 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. In addition, the hearing officer ordered the board of education to determine if the child was entitled to accommodations under 504 of the Rehabilitation Act of 1973 (29 USC 794), even if he could not be classified pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.). Given her determination that the child did not meet the criteria for classification as a child with a disability, the hearing officer did not address petitioner's request for tuition reimbursement for the 1996-97 school year.

        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 no member of the CSE actually met with or tested the child. However, neither statute nor regulation requires that any member of a CSE evaluate a child. A CSE may make its recommendation after its members have reviewed the results of the child's evaluation by other individuals. Petitioner challenges the CSE's failure to consult with the school psychologist who evaluated the boy for the CSE before the CSE made its recommendation. However, there is no requirement that it do so. The boy's evaluation by the school psychologist was considered by the CSE (Transcript, page 17), and another school psychologist served as a member of the CSE. The latter school psychologist was capable of explaining the significance of the findings by the school psychologist who had evaluated the child. Although the school psychologist who evaluated the child had indicated that the 31 point difference between the boy's verbal IQ score and his performance IQ score was " … reflective of a perceptually based learning disability …", it does not follow that she was recommending that the boy be classified by the CSE as learning disabled. Indeed, there was no such recommendation in her report. She was simply reporting that he appeared to have a perceptual deficit which respondent has acknowledged that petitioner's son has.

        Petitioner further alleges that the CSE's evaluation of the child was inadequate because it did not assess the child's spelling skills. I note that in a 1990 private psychological evaluation of the boy when he was in the third grade, he was reported to have a one year delay in his spelling. However, I find it highly significant that his Learning Resource Center teacher did not describe that as one of the boy's needs during her testimony, and that there was only a brief reference to the boy's spelling in her written report (Exhibit D).

        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 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).

        Based on the record before me, I find that there is no evidence that the child has a learning disability as that term is defined by Federal or State regulation for the purpose of classification as learning disabled under the Individuals with Disabilities Education Act or Article 89 of the Education Law. Although there is evidence that the child has a perceptually based learning disability, he does not have a significant discrepancy between his expected and actual achievement. In fact, the record shows that his actual academic achievement is above average.

        Petitioner alleges that based on the information provided in the medical documentation form by the child's pediatrician, the CSE should have inquired further into the possibility of a neurological impairment. I find that this issue has no bearing on the hearing officer's finding. The hearing officer ordered the board of education 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. If petitioner is dissatisfied with the CSE's recommendation after the CSE reviews the results of the neurological report, he may request a hearing.

        Finally, petitioner alleges, and the record indicates, that the child may need testing modifications. The hearing officer addressed this issue in her decision. She ordered the board of education to make a determination as to whether the child is entitled to accommodations to be made under Section 504 of the Rehabilitation Act of 1973, even if he is ineligible for classification under IDEA. If the boy meets the criteria for identification as a "qualified handicapped person" pursuant to Section 504, his 504 accommodation plan could certainly provide for the use of testing modifications.




Dated: Albany, New York __________________________
March 9, 1998 ROBERT G. BENTLEY