The State Education Department
State Review Officer

No. 99-64


Application of a CHILD WITH 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 Enlarged Central School District of Middletown


Donoghue, Thomas, Auslander, and Drohan, attorneys for respondent, Daniel Petigrow, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which found that respondent’s committee on special education (CSE) had adequately evaluated petitioner’s son, and properly classified petitioner’s son as learning disabled. The appeal must be dismissed.

        I must first address one procedural issue. Petitioner has annexed two letters to her petition involving an alleged change in her son's placement, apparently after the hearing officer rendered her decision in this proceeding. Petitioner asserted that respondent was required to maintain her son's placement in a 6:1+1 class similar to that which he had attended during the 1997-98 school year. Respondent's Director of Pupil Personnel and Special Services advised petitioner that the so-called "pendency" provisions of Federal and State law (20 USC 1415 [j]; Section 4404 [4] of the Education Law) did not apply in this instance because petitioner had only challenged the adequacy of the CSE's evaluations in this proceeding. Although I do not necessarily agree with respondent's interpretation of the law, I must point out that respondent's alleged change of the boy's placement is not properly before me because it has not been the subject of an impartial hearing.

        Petitioner submitted a request for hearing in June, 1998, in which she challenged the CSE’s classification of her son, among other issues. Petitioner subsequently chose to withdraw her request for hearing. In December 1998, petitioner requested an independent evaluation of the child at school district expense. In January 1999, respondent requested an impartial hearing seeking a determination regarding the adequacy of its triennial evaluation, and its obligation, if any, to pay for an independent evaluation.

        At the time of the hearing, petitioner’s son was nine-years-old. The child has been a student in the Middletown Enlarged Central School District since July, 1994 (R. 78). Prior to July, 1994, the child lived in Pennsylvania, where he was classified as a Pre-Schooler with a Disability. The child received speech/language services four times a week (Exhibit 1). When administered the WPPSI-R in May, 1994, the child achieved a verbal IQ score of 93, a performance IQ score of 76, and a full scale IQ score of 83 (Exhibit 4).

        In November, 1992, Dr. Isabelle Rapin, a professor of neurology and pediatrics at the Albert Einstein College of Medicine evaluated the child, and diagnosed him as having developmental dysphasia. Because of his communication difficulties at the time, she suggested that he may also have a borderline pervasive developmental disorder (Exhibit A). In May, 1995, Dr. Cecile Fray, a pediatric neurologist, evaluated the child. In her report, Dr. Fray noted that she was conducting her evaluation at the request of the child’s mother, who was seeking a definitive diagnosis of autism so her son could remain in his current school program. Based upon descriptions of his behavioral history, Dr. Fray found the child to have a pervasive developmental disorder. Dr. Fray also described the child as a high functioning child who was benefiting from the school system (Exhibit B). When Dr. Fray examined the child again in December, 1995, she found that he was responding to a structured environment (Exhibit D).

        As of February 1996, the child had been classified learning disabled, and he was attending a self-contained special education class at BOCES (Exhibit 4). He was receiving speech/language therapy twice weekly, occupational therapy once weekly, and counseling twice weekly. A speech/language pathologist and a psychologist evaluated the child in February 1996. The speech/language pathologist found that the child had a mild-to-moderate speech and language delay. She recommended that the child continue individual speech/language therapy once per week and group therapy once per week (Exhibit 8). The psychologist administered the Wechsler Intelligence Scale for Children – Third Edition (WISC-III), among other tests. The child received a verbal IQ score of 98, a performance IQ score of 87, and a full-scale IQ score of 92. The psychologist recommended that the CSE continue the child’s classification of learning disabled (Exhibit 4).

        In April, 1996, Dr. Richard Hoetzel interviewed the child and his mother. He suggested diagnoses of pervasive developmental disorder and expressive language disorder (Exhibit E). In his report, Dr. Hoetzel stated that he based his diagnoses upon examination and observation as well as upon history and description as provided by the mother, and noted that the child’s disabilities may not be apparent to others. In May 1996, Dr. Robert Ruben, an otolaryngolist, described the child as having substantial language difficulties and intermittent hearing loss. He suggested that the child use a FM device in school (Exhibit I). Dr. Robert Wolff examined the child in March, 1997. Noting that he did not have access to previous evaluation reports and that information regarding the child’s history was provided by the mother, Dr. Wolff indicated that the child appeared to be a high functioning autistic child, "more on the order of Asperger’s syndrome." Dr. Wolff suggested that the medication Paxil might be helpful, and if Paxil was not successful, he suggested a trial of Risperdal (Exhibit H).

        An occupational therapist and speech/language therapist evaluated the child in September, 1997. The occupational therapist suggested that the child receive occupational therapy twice weekly, once individually and once in a small group (Exhibit 12). The speech therapist did not recommend a change in the child’s speech/language program (Exhibit 7).

        The child’s Individualized Education Program (IEP) for the 1998-99 school year was developed at a CSE meeting held in June 1998. The CSE recommended that the child be classified learning disabled, and be placed in an ungraded BOCES special class that was a twelve-month program with a class size ratio of 6:1:1. It also recommended that he receive the related services of individual counseling twice weekly for thirty minutes, individual occupational therapy twice weekly for thirty minutes, group speech therapy once weekly for thirty minutes, and individual speech therapy twice weekly for thirty minutes (Exhibit 18).

        Dr. Abba Cargan conducted a neurological consultation on the child in June, 1998. Based upon behavioral history and observation, Dr. Cargan found that the child displayed features indicative of the pervasive developmental disorder which had been identified by Dr. Rapin in 1992. Dr. Cargan noted that medication treatment had not been successful in the past. He did not rule out the possibility of treatment with other agents in the future (Exhibit 10).

        Daniel B. Crimmins, Director of Psychology at the Westchester Institute for Human Development, observed the child in school on October 19, 1998. He found that the current recommendation of learning disabled was appropriate for the child. Although Dr. Crimmins did not rule out the possibility of autistic behaviors in other settings, he reported seeing only one unusual behavior in the child in the school setting. At one point, the child got out of his desk and turned around several times. When the child noticed Dr. Crimmins watching him, the child sat down. Because the child did not display autistic behaviors across all realms of functioning, Dr. Crimmins did not believe the child should be classified as autistic, or as multiply disabled. Dr. Crimmins was concerned about the child’s lack of academic achievement, and suggested that the child be given more work (Exhibit 14).

        A triennial evaluation was conducted in fall of 1998. The child received a verbal IQ score of 104, a performance IQ score of 72, and a full-scale IQ score of 87 when administered the WISC-III. The child’s verbal score was higher than that reported in 1996, and his performance and full-scale scores were lower. Respondent's school psychologist noted that the child appeared to be active, impulsive and distractible. On the Childhood Autism Rating Scale the child achieved a score of 20.5. I note that the school psychologist indicated that a score between 15 and 29 is considered to be in the average, i.e., non-autistic, range (Exhibit 1). The boy was observed in his math class on October 14, 1998 by the school psychologist, who reported that the child interacted well with adults and his peers, and was active but generally attentive in class (Exhibit 2).

        At a subcommittee meeting conducted on October 29, 1998, Dr. Crimmins discussed his report. The school psychologist reviewed the results of her evaluation and observation of the boy. The speech/language therapist discussed her evaluation of the child. The subcommittee read Dr. Cargan's report concerning his medical diagnosis. The subcommittee voted to continue the child’s classification as Learning Disabled. The parent voiced disagreement with the CSE’s decision (Exhibit 9).

        In a letter dated November 4, 1998, the parent requested that the child receive an independent evaluation at the Yale Child Study Center (Exhibit 15). On December 11, 1998 the parent requested an independent evaluation of her child at Albert Einstein College of Medicine (Exhibit 16). In a letter dated December 18, 1998, the school district denied the parent’s request for an independent evaluation. The school district also informed the parent that it would request an impartial hearing to defend the adequacy of its evaluation (Exhibit 17).

        The hearing was held on February 23 and 25, 1999. The hearing officer rendered her decision on May 12, 1999. She found that the CSE’s recommended classification of learning disabled was appropriate. Because the classification was found to be appropriate, the hearing officer ruled that the Board of Education of the Enlarged City School District of Middletown would not be liable for the expense of an independent evaluation.

        Petitioner challenges the hearing officer's determination on the grounds that respondent allegedly failed to present competent formal evaluative information with regard to her son, and had relied upon subjective, informal observations of the boy. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may obtain an independent evaluation, but not at public expense (former 34 CFR 300.503 now 34 CFR 300.502; 8 NYCRR 200.5 [a][1][vi][a]).

        The CSE considered several evaluations in determining the appropriate classification of the child. The evaluators possessed varying degrees of expertise with autism. Both the school psychologist and the speech/language pathologist acknowledged that they did not have a great deal of experience with autistic children. Previously, each had worked with only one autistic child (R. 85, 134). Cheryl Carter, the school district’s academic tester, worked with an autistic population for a year and a half before being hired by the school district (R. 112). Dr. Crimmins, the independent evaluator hired by the school district has extensive experience working with autistic children (R. 201, Exhibit 13). Dr. Crimmins began working with autistic children while a graduate student, and, throughout most of his career, he has continued to work with a population that includes autistic children. Although the school psychologist and speech/language pathologist were not experienced with autistic children, as professionals in their respective fields, they were competent to observe and record certain behaviors. In essence, petitioner contends that autism is a medical condition, and that respondent's evaluators who are not physicians are not qualified to determine the nature of the boy's educational disability. I disagree with petitioner's contention. 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). I find that the school district’s evaluators possessed the professional credentials and experience necessary to perform adequate evaluations, and that the school district’s evaluation of the child was adequate. Therefore, petitioner's request for an independent evaluation of her son at school district expense must be denied.

        Petitioner also challenges the hearing officer's determination concerning the appropriateness of her son's classification as learning disabled. Initially, I must note that a board of education may initiate a hearing for only certain purposes (Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Disability, Appeal No. 96-52). One permissible purpose is to have a hearing officer determine the adequacy of the board's evaluations. In their opening remarks and colloquy with the hearing officer, respondent's attorney and petitioner raised the issue of the child's classification. Petitioner asked the hearing officer to find that the boy should be classified as multiply disabled. She repeats that request in her petition to me. Under the circumstances, I find that the hearing officer did have jurisdiction to determine the appropriateness of the boy's classification by the CSE as learning disabled, and I will therefore review her determination.

        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).

        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).

        The evidence presented by the school district shows that the child has a learning disability. The child’s verbal IQ score is in the average range, and his performance and full-scale IQ scores both fall within the low average range (Exhibit 1). The child’s achievement, however, is not commensurate with his potential. The child’s scores on achievement tests indicate a greater than 50% discrepancy between his potential and his achievement. When tested in October, 1998, the child achieved grade equivalent scores of 1.3 in reading and 2.1 in mathematics (Exhibit 5). Although the child was in an ungraded class, he was nine years old at the time of testing, and he was performing well below expected achievement. Given the discrepancy between potential and achievement, the child was appropriately classified learning disabled.

        A multiply disabled child is defined by state regulation as:

"a student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments." (8 NYCRR 200.1 [mm] [8]).

        Petitioner asserts that the child should be classified multiply disabled because he has been diagnosed with autism, he is hearing impaired, and he takes medication. I disagree. As noted above, a medical diagnosis of autism does not establish what a child's educational needs are. According to the Regulations of the Commissioner of Education, the essential features of autism include "severe disturbances of developmental rates and/or sequences of responses to sensory stimuli, of speech, of language, of cognitive capacities, and of the ability to relate to people, events and objects." (8 NYCRR 200.1 [mm] [1]). There is no evidence in the record that petitioner's son manifested these conditions in his educational setting.

        Dr. Crimmins noted that the child demonstrated the ability to process information presented orally, and that normal verbal IQ scores indicated that the child was able to process verbal instructions (R. 228-229). Although the child refused to wear his FM device, the speech/language therapist testified that the child did not appear to have difficulty understanding spoken language. Although the speech/language therapist observed some echolalia during testing, she testified that the child did process test questions, and responded accordingly. The therapist noted that the child did not exhibit echolalia during conversation (R. 139). The child has consistently achieved average verbal IQ scores (Exhibits 1 and 4). A speech/language therapist who evaluated the child in February 1996 noted that the child engaged in lively conversation, made and sustained eye contact and spoke appropriately of things in the past. The evaluator noted that the child only displayed one of eighteen behaviors described as symptomatic of autism in the Diagnostic Methods in Speech Pathology (Exhibit 8). The child was evaluated again in September 1997. The speech/language therapist found that the child’s developmental speech delay was being addressed adequately in his therapy sessions (Exhibit 7). When she evaluated the child in February, 1998, the therapist noted that the child’s social skills and pragmatic use of language were his strengths (Exhibit 6).

        When last administered an IQ test, the child achieved a verbal score in the average range, a performance score in the borderline range, and full scale score in the low average range. Dr. Crimmins did express concern over the child’s lack of academic achievement given the child’s cognitive potential. Dr. Crimmins recommended that the child be given additional work because he seemed bored. A Childhood Autism rating Scale was administered in October 1998. Scores falling between 15 and 29 are considered average. The child achieved a score 20.5 (Exhibit 1).

        The evidence shows that the child’s ability to relate to people, events and objects is appropriate. During Dr. Crimmins’ observation, the child attempted to help another child who was having difficulty with Math, and the child played a game with other children in an appropriate manner. (Exhibit 14). Nothing in the record implies that the child experienced behavioral difficulties in an education setting. Upon the record before me, I find that the child's autism, if any, does not have a significant effect upon his ability to benefit from instruction, and cannot be used to support the classification of multiply disabled.

        To be considered hearing impaired, a student must have a hearing impairment, whether permanent or fluctuating, which adversely affects educational performance (8 NYCRR 200.1 [mm] [5]). The record does show that the child suffers from a hearing impairment, however, the child responds well verbally. The evidence shows that the child learns best through verbal instruction, and he is making steady progress in his speech/language therapy. Given that the child’s strength is his verbal ability, I find that the child’s educational performance is not being adversely affected by his hearing impairment.

        Absent evidence that the boy's alleged autism or his hearing impairment have adversely affected his educational performance, I must conclude that neither condition supports a classification as multiply disabled. The fact that the child was reportedly taking medication at the time of the hearing does not afford a basis for designating him to be multiply disabled. I find that the CSE properly classified the child as learning disabled.







Dated: Albany, New York __________________________
February 18, 2000 FRANK MUŅOZ