The State Education Department
State Review Officer

No. 98-64



Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parents, 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 for the City of New York


Carolyn M. Heft, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Robert Katz, Esq., of  counsel




        Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' son should not be classified as a child with a disability. Petitioners further appeal from the hearing officer's denial of their request for reimbursement for the cost of their son's tuition at Mary McDowell Center for Learning (Mary McDowell) for the 1997-98 school year. The appeal must be dismissed.

        At the time of the hearing, the child was nine years old and in the fourth grade at Mary McDowell. He attended the Dillon Child Development Center for preschool and kindergarten, then Packer Collegiate Institute (Packer) for first through third grade. Neither Mary McDowell nor Packer is approved by the State Education Department as a school for children with disabilities.

        The child's fall progress report for the first grade at Packer during the 1994-95 school year indicated that he had difficulty with beginning reading skills at the start of the school year. Additionally, he had difficulty sequencing, and made many reversals of numbers and letters. The progress report further indicated that the child had difficulty with math concepts and applications. The child received remedial reading support in school and private tutoring twice per week. His progress report at the end of first grade indicated that his progress was steady and more consistent when he received tutoring.

        In June, 1995, the child was evaluated by a neuropsychologist at the request of his parents. The neuropsychologist reported that the child's verbal and full scale IQ scores were in the superior range, and his performance IQ score was within the high average range on the WISC-III. He further indicated that the discrepancy between the child's verbal and performance IQ was not significant, and that the child did not exhibit an unusual degree of inconsistency among his measured skills. The child showed relative weaknesses on tasks which were most dependent on attention and concentration skills, and on those which were less externally structured. The neuropsychologist opined that the child's tendency to become restless or distracted was not indicative of a diagnosis of attention deficit hyperactivity disorder, but was an indication that the child was encountering academic difficulty. He reported that the child had some difficulty with his visual-sequential memory. The neuropsychologist indicated that rote memorization strategies were likely to be inefficient and potentially frustrating for the child, and that he was much more likely to master new material when it was contextually based, structured, and inherently meaningful. The neuropsychologist also reported that the child's phonolinguistic processing skills were underdeveloped, and that his visual-motor skills were in the low average range. Additionally, the child had difficulty with planning and organization.

        The neuropsychologist reported that the child's performance on achievement tests ranged from the lower end of average for phonetic reading skills to the superior level with regard to some of his mathematical abilities. His grade equivalent scores were within the first grade equivalent level. The child's written language skills were assessed to be in the average range, with some letter reversals and immature letter formation. The neuropsychologist concluded that the child's relative difficulties with visual-sequential memory, his immature phonolinguistic processing skills, and his relative trouble mastering material which was not inherently meaningful contributed to his early academic struggles. He noted that while the child showed a pattern of strengths and weaknesses, he did not show a significant enough deficiency to warrant a classification as a learning disabled student.

        In November, 1995, when the child was in the second grade at Packer, he was seen by a second neuropsychologist at the request of his parents. The neuropsychologist found that the child's overall intelligence was in the superior range, and that there was no significant discrepancy between his verbal and performance IQ scores. However, she indicated that the child exhibited weaknesses in auditory processing, verbal organization, oral expression, written language organization, spelling and punctuation, which were inconsistent with his superior intelligence, and which could potentially interfere with his achieving his potential. She recommended that the child receive assistance with expressive language organization to address his verbal organization deficits. The child's progress reports at the end of second grade indicated that he made tremendous progress in all academic areas, while working with a learning specialist on phonetic skills twice per week. His math skills were described as solid.

        In third grade during the 1996-97 school year, the child continued to meet with a learning specialist on a daily basis, receiving remedial reading four times and math once per week. His graphomotor skills and spelling skills were described as poor, and he continued to have letter reversals and organizational difficulties. He also had difficulty expressing his thoughts in writing. The child reportedly required teacher support in problem solving strategies. His science teacher indicated that the child had difficulty and required much support in that subject. The learning specialist indicated that the child's reading was below grade level, but that he continued to progress. The child reportedly had difficulty with his addition and subtraction facts.

        In March, 1997, petitioners arranged to have their son evaluated by a private psychologist at the suggestion of the Packer faculty because of a concern that the school might no longer be able to accommodate the child's learning needs. The private psychologist reported that on the WISC-III, the child received a verbal IQ score of 129, a performance IQ score of 125, and a full scale IQ score of 130, placing him in the superior range of intellectual functioning. The private psychologist reported that there was a significant discrepancy between the child's verbal comprehension index and his freedom from distractibility index, and she opined that the discrepancy indicated that the child handled conceptually complex material significantly better than he handled more rote activity demanding recall and focus. She suggested that the significant scatter in his performance subtest scores indicated that he might have relative deficits in his visual processing skills. The private psychologist also indicated that the child demonstrated weaknesses in his phonological awareness, word retrieval, and receptive and expressive language processing capabilities. The child achieved average scores for his receptive language skills, with some difficulty with semantic concepts that labeled spatial relations. His expressive language capacities were assessed to be significantly below his verbal reasoning ability when constraints were externally imposed. She further noted that while the child excelled in verbal concept formation (similarities), problems were still evident in his understanding of social rules and their rationale (comprehension), ability to define words orally (vocabulary), and language processing. The psychologist opined that the child's language disabilities contributed substantially to his difficulty making progress with reading, writing and recollection of rote math facts.

        The private psychologist also reported that the child had visual spatial processing difficulties, and demonstrated a relative weakness in his graphomotor skills. The child's verbal and visual memory was stronger when dealing with meaningful, rather than rote, information. The private psychologist reported that the child's weakness in the visual modality could hinder his ability to learn through a visually based approach. Additionally, she noted that the child had relatively weak long-term visual memory skills.

        The private psychologist reported that the child was somewhat impulsive, though not especially easily distracted. She also reported that he evidenced signs of anxiety, depression, and low self-esteem in his responses to projective tests. The private psychologist opined that these stemmed from his learning difficulties. She noted that the child became guarded when faced with an ambiguous situation.

        The private psychologist reported that the child's letter-word identification skills were in the high average range, while his word attack skills were in the average range. The boy's reading vocabulary skills were found to be in the high average range. The psychologist indicated that the boy could produce simple prose at a very rapid rate, but she questioned the quality of his writing. I note that the boy's standard scores for writing samples and dictation were both in the average range on the Woodcock-Johnson Tests of Achievement-Revised which the psychologist administered to him. The boy exhibited excellent reasoning skills to mentally solve mathematical word problems, but his performance of simple computations was in the borderline range.

        The private psychologist concluded that the child functioned academically significantly below his intellectual aptitude despite having received long-term intensive remediation within a mainstream environment, and she recommended that the child be classified as learning disabled and language impaired. She further recommended that the child be placed in a classroom with a low student to teacher ratio to provide ample opportunity for one-to-one attention. Short-term counseling was also recommended to help the child and his parents cope better with his reactions to academic problems.

        On the Stanford Achievement Tests administered in May, 1997 when the child was in third grade, he achieved average to above average scores in mathematics and reading (Exhibit 25). However, I note that the child's third grade teacher testified that the test results did not reflect the child's actual achievement. I further note that in her year-end report, that teacher indicated that the boy's reading, writing, and spelling difficulties made many aspects of the school's curriculum difficult for him. Nevertheless, she recommended that he be promoted to the fourth grade.

        The child was first referred to the CSE on May 28, 1997 by his mother. Additionally, the child's learning specialist at Packer referred him to the CSE because she believed that his learning was impaired by a combination of auditory and visual-sequential memory problems, difficulty with organizing verbal and written language, as well as general organizational weaknesses. She also indicated that the child suffered from dysgraphia, which is difficulty with writing (Exhibit 6). In a report dated June, 1997, the child's private tutor indicated that the child was referred to her by Packer's learning specialist because he needed extra support in the areas of language, reading and writing. The tutor reported that the child demonstrated organizational and word retrieval difficulties as conversations became more complex or abstract. She noted that while the child's reading had improved significantly during the school year, he continued to struggle with reading longer, more complex words, and needed to concentrate on the decoding process. The child had difficulty articulating his understanding when discussing what he had read. The child's tutor indicated that the child's difficulty organizing his thoughts verbally extended to his writing. He continued to make frequent letter reversals and place letters incorrectly in a word, and his writing was not physically well-organized (Exhibit F).

        The child was observed by a school psychologist on June 3, 1997, while in his remedial reading class of six students at Packer. The school psychologist indicated that the child was motivated to accomplish the work. She further noted that the child read aloud well, but that he had difficulty in comprehension. The school psychologist indicated that anxiety, and lack of structure and focus appeared to interfere with the child's concentration, which decreased his comprehension level. She also indicated that the child appeared to be very dependent on the motivation, encouragement and support of his teacher. The child also exhibited difficulties with math computation when he had to read and interpret word problems. The school psychologist observed that the child's graphomotor skills were weak. She noted that he was struggling in a very competitive environment where he could not accomplish work at grade level (Exhibit 13).

        In a social history completed on July 3, 1997, the child's parents expressed concern about their son's delayed academic performance, and indicated that they were seeking an appropriate environment so he could achieve his potential. They also indicated that his self-esteem was suffering because he did not do well academically. The child's parents also expressed concern that their son might lose his enthusiasm for school and his eagerness to learn if he was not placed in an appropriate educational setting. The child's parents also indicated that their son required much support to take risks.

        In a psychological evaluation conducted on July 3, 1997, a school psychologist observed that the child was a well-related, mildly depressed youngster, whose latent anxiety interfered with his ability to function at expected levels. He noted that the child tended to become tense and fidgety when his confidence was challenged. The school psychologist reviewed the private psychologist's April, 1997 report and findings. With regard to the significant difference between the child's verbal comprehension index and his freedom from distractibility index, the school psychologist noted that the child's ability to function free of distractibility was nevertheless at the 72nd percentile, while his short-term auditory sequential recall was assessed to be in the average range, at the 37th percentile. He opined that those results demonstrated that the child had a mild attention deficit of unknown etiology which interfered with his ability to function at expected levels. The school psychologist concluded that the child had superior potential which was mildly affected by an anxiety caused attention deficit. He also reported that there was a mild delay in the boy's visual motor integration skills. Projective test results indicated that the child's reality testing was adequate, but that he was mildly depressed and easily discouraged. The child feared that he would lose the affection of significant others if he failed, which was the source of his anxiety and low self-esteem. However, the school psychologist noted that the child was only mildly affected by these emotional problems, and suggested that his emotional needs could be addressed by counseling or therapy outside of school. The school psychologist further suggested that the boy's academic needs could be met in a regular education class for the academically gifted, with resource room support (Exhibit 6).

        An educational evaluation was conducted on July 3, 1997. On the Kaufman Test of Educational Achievement (KTEA), the child achieved grade equivalent scores of 5.9 in math applications and 4.7 in math computation. The educational evaluator noted that the child worked slowly in math, and counted on his fingers. The evaluator reported that the boy's division skills were rudimentary, but his overall mathematics skills were within grade level expectations. Weaknesses were noted in the child's visual/visual motor skills. The child made inversion, letter transportation, and reversal errors. His handwriting skills were described as somewhat immature, however, there was no difficulty reading his written work. On an informal writing task the child was able to write a well thought out paragraph in relationship to content and story development, however grammatical, usage and spelling errors were noted in his work (Exhibit 7).

        In a speech/language evaluation conducted on July 3, 1997, the child achieved in the above-average range on the listening to paragraph subtest of the Clinical Evaluation of Language Fundamentals-Revised (CELF-R). The speech/language evaluator indicated that the child displayed above average syntactic abilities whether the task was presented visually and orally, or orally alone. With respect to the child's expressive language abilities, the speech/language evaluator indicated that the child had good organization skills in response to open-ended and direct questions, and that he had good divergent thinking skills. She noted that he used a variety of attributes, verb forms, prepositions, connectors and sentence types during conversation. Additionally, the speech/language evaluator noted that the child showed excellent pragmatic language function. The speech/language evaluator concluded that the child had good communication skills, and assessed his language skills to be in the above average range. She found no evidence of a speech/language delay or disorder (Exhibit 9).

        At petitioners' request, the private psychologist who had evaluated the boy in March and April, 1997 reviewed the evaluation reports by the CSE's evaluators. In a letter dated July 25, 1997, the private psychologist stated that she agreed with the school psychologist that the child was anxious and had low self-esteem surrounding his learning problems. However, she opined that the boy's emotional problems were secondary to his learning difficulties. The private psychologist noted that the child had language processing problems which significantly impaired his progress in reading and writing, but she agreed with the CSE's speech/language evaluator that speech/language therapy was not needed. She stated that the boy's poor phoneme awareness and poor phonetic short-term memory were predictors of poor reading skills. She disagreed with school psychologist's suggested placement in an academically gifted class, and reiterated her belief that he required a placement in a classroom where with a low student to teacher ratio and staff who were familiar with techniques for teaching children with language processing deficits (Exhibit 11).

        A medical documentation form completed by the child's physician indicated that the child was a well child, which is of course relevant in determining whether a child has a learning disability because of the definition of that educational disability (see 8 NYCRR 200.1 [mm][6]).

        The CSE met on July 30, 1997. The minutes from that meeting indicate that the case was deferred until the child could have a follow-up educational evaluation assessment focusing on his writing skills and written language. The educational evaluation was conducted on August 13, 1997. On the written expression subtest of the Wechsler Individual Achievement Test, the child achieved a grade equivalent score of 3.0, indicating a one year delay is his writing skills. The educational evaluator noted that the child was able to organize his thoughts, but that delays in his technical writing skills interfered with his ability to express his thoughts in writing. She further noted that while the child's writing sample supported the topic with some extended detail, he did not elaborate. The educational evaluator indicated that the child's writing sample had unity, that his vocabulary was appropriate, but most of his words were simplistic, and there was little variety. However, the educational evaluator noted that the child exhibited the ability to use variety in sentence structure. His grammar and usage was assessed to be fair. With respect to the child's perceptual motor development, the educational evaluator reported that the child exhibited an appropriate pencil grip (Exhibit 8).

        The CSE reconvened on August 28, 1997, and recommended that the child not be classified. The CSE noted that the child had some difficulties with distractibility, and perceptual motor and writing skills, but despite these difficulties he was functioning in the average range. The CSE believed that the child did not exhibit the characteristics of a learning disabled child as defined by regulation because his educational performance was in the average range (Exhibit 1).

        The child's parents filed a request for an impartial hearing seeking reimbursement for the tuition costs for their son during the 1997-98 school year at Mary McDowell. The hearing began on December 10, 1997 and was held on various dates, concluding on June 25, 1998. At the hearing, petitioners asserted that the CSE's determination was procedurally and substantively flawed. The hearing officer rendered her decision on August 18, 1998. She rejected petitioners' contention that the boy's classroom observation had been conducted prior to their consent for him to be evaluated. She also rejected their claim that the CSE was not validly constituted because the boy's teacher did not attend the meeting. The hearing officer found that because the child was attending a private school, the CSE had the right to determine which teacher participated at the CSE meeting. She further found that the CSE's final recommendation was made within the time required by law. The hearing officer noted that petitioners had raised a number of issues regarding the adequacy of the CSE's evaluation, which she found to be without merit. Finally, the hearing officer found that the child did not meet the criteria for classification as a child with learning disability, because he did not have a severe discrepancy between his expected and actual achievement. She stated that the child's intellectual and emotional strengths and weaknesses must be considered in establishing his expectations, and concluded that he had been able to use his strengths to compensate for his weaknesses to achieve academically at an overall level of average or above average.

        Petitioners appeal from the hearing officer's decision on a number of grounds. Initially, petitioners claim that respondent failed to evaluate the child within the required time frame. I find that the record is insufficient to support this claim. The regulation which was in effect at the time of the child's referral to the CSE provided that the CSE should make its recommendation within 30 days after receipt of the parents' consent or 40 days after their referral, whichever is shorter (former 8 NYCRR 200.4 [c]). However, the term "day" means school day, except during July and August. The record is unclear when petitioners gave their written consent for evaluation. In any event, the CSE appears to have acted within the requisite time period.

        Petitioners also claim that a "classroom" teacher should have been present at the CSE meeting. The regulations which were in effect at the time provided that the "child's teacher" must be a member of the CSE. If the 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, 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).

        Additionally, petitioners claim that the CSE should have conducted an occupational therapy assessment of their son. State regulation requires that an individual evaluation shall include other appropriate assessments or evaluations as necessary to ascertain the physical, mental and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4 [b][1][iv]). The record shows that the child was evaluated by various professionals, most of whom noted that the child had weak graphomotor skills. Only the neuropsychologist who evaluated the child at the end of his first grade year recommended that the child receive instruction at school regarding manipulation of a pencil or alternatively, he suggested that an occupational therapist might need to be consulted on a short-term basis. The educational evaluator who evaluated the child for the purpose of assessing his writing skills in August, 1997 did not recommend that the child receive an occupational therapy assessment. The CSE reviewed the evaluations of the child and determined that an occupational therapy was not necessary. There is no evidence in the record to show that that determination was unreasonable.

        The central issue in this appeal is whether the child should be classified as learning disabled. 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).

        Petitioners contend that their son is not achieving at a level commensurate with his superior IQ, and that the discrepancy between his actual and expected achievement qualifies him to be classified as learning disabled. 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).

        However, 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). The record shows that the child has consistently scored in the superior range on IQ tests. On achievement tests, with few exceptions, the child has consistently scored in the average to superior range. The record also shows that the child has some relative deficits in his receptive and expressive language skills, visual spatial and visual graphic functioning, and executive functioning, i.e., attention, concentration, organization and planning skills. The record further shows that anxiety is a factor in the child's learning. I note that the child received private tutoring and other academic assistance at Packer, and that his performance in reading and mathematics was rated below grade level at the end of third grade. However, despite the child's learning difficulties, the record shows that he progressed at the rate of one year for each year of school. Additionally, while the parties appear to dispute the academic standards at Packer, the child's scores on nationally recognized diagnostic instruments demonstrate that he was achieving at a third grade level. Based upon the record before me, I am unable to find that the child's learning difficulties adversely impact upon his performance to the extent that he requires special education and/or related services. I note that both the district's psychologist and the private psychologist found that the child exhibited anxiety related to his learning difficulties. I encourage that counseling be explored.

        Having found that the child should not be classified as a child with a disability, it is not necessary that I reach the issue of whether the child is eligible for tuition reimbursement. Therefore, I need not address respondent's claim that petitioners do not have standing to seek reimbursement under the 1997 amendments to the Individuals With Disabilities Education Act 20 U.S.C. Section 1400 et seq. However, I refer respondent to my decision in Application of a Child with a Disability, Appeal No.98-25, where I was unable to conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district.

        Petitioners raise several other issues regarding the CSE's evaluation and review. I have considered those issues, as well as petitioners' other contentions, and find them to be without merit.




Dated: Albany, New York _________________________
October 28, 1999 ROBERT G. BENTLEY