The State Education Department
State Review Officer

No. 99-74




Application of a CHILD WITH 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 of the City of New York

Neal H. Rosenberg, Esq., attorney for petitioners



        Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order compelling respondent to reimburse them for the cost of their son’s tuition at the Windward School for the 1998-1999 academic school year. The hearing officer denied petitioners’ request, but ordered respondent to provide compensatory relief, if appropriate. The appeal must be dismissed.

        There is one preliminary procedural question to be addressed. The Board of Education has not answered the petition. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department." A decision of the State Review Officer was recently annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the recitations in an unanswered petition for review (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 [2000]). The Court’s decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510 [b][2][i]), and to make an independent decision (20 USC 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioners' son is sixteen years old. During the 1998-1999 school year, the boy was enrolled in the ninth grade at the Windward School in White Plains, New York. The Windward School is a small independent school that offers a language intensive program for learning disabled students with problems in written and expressive language. It has not been approved by the New York State Education Department to instruct children with disabilities.

        Prior to that placement, the boy had attended the Morningridge-Montessori School from age two and one half to age five. He then attended the Calhoun School for kindergarten through the seventh grade. While he was attending that school, petitioners reportedly obtained a tutor for him, at the suggestion of school staff (Exhibit 1). Petitioners had their son evaluated by a private psychologist in November, 1996. The psychologist reported that the boy had achieved a verbal IQ score of 121, and a performance IQ score of 86, with particular weaknesses in perceptual organization and speed. He further reported that the boy had significant difficulty with several aspects of expressive language, in addition to having important weaknesses in his receptive language skills. The boy’s composite score on the Test of Language Competence was at the 27th percentile. The psychologist opined that the boy had a language-based learning disability which affected his ability to read and spell (Exhibit C).

        Petitioners referred their son to the CSE. The educational evaluator who evaluated the boy in June, 1997 reported that the boy’s oral language skills were age appropriate, and that his reading and math skills were above grade level. He achieved grade equivalent (and standard) scores of 9.4 (113) for broad reading, and 11.4 (121) for broad math on the Woodcock Johnson Psychoeducational Battery-Revised (WJ-R). He also achieved grade equivalent (and standard) scores of 11.6 (115) for science, 10.4 (114) for social studies, and 10.0 (109) for the humanities on the WJ-R. The evaluator further reported that the boy had demonstrated that he had developed adequate writing skills (Exhibit 11).

        Respondent’s CSE reportedly recommended that petitioners’ son be classified as learning disabled, and that he be educated in regular education classes and provided with speech/language therapy (Transcript p. 15). Petitioners placed their son in the Windward School for the eighth grade in the 1997-98 school year.

        The boy was re-evaluated by the CSE in the Spring of 1998. He was observed in a social studies class at Windward on February 11, 1998. The school psychologist making the observation reported that the boy had participated appropriately in what she described as a fast paced discussion, but had some difficulty reading aloud in class. She reported that his writing and notebook appeared to be neat and organized (Exhibit 6).

        A CSE educational evaluator assessed the boy’s academic skills on March 14, 1998. She reported that he had achieved a score in the average range on one subtest of the Detroit Test of Learning Aptitude-2 and in the high average range on another subtest, indicating that he had adequate language skills. On the Kaufman Test of Educational Achievement, the student achieved grade equivalent (and standard) scores of 10.2 (105) for reading decoding, 10.2 (106) for reading comprehension, 11.7 (114) for math computation, 11.3 (108) for math applications, 6.8 (91) for spelling. The boy’s writing skills were informally assessed by the use of a writing sample. The evaluator indicated that the student had used good sentence structure, with only minimal spelling, punctuation and grammar errors (Exhibit 3).

        On April 4, 1998, the boy was evaluated by a school psychologist, who referred to the results of the boy’s prior IQ testing in November, 1996 in his report. The school psychologist did not administer a new IQ test. He interviewed the boy, and reported that he was emotionally healthy. He indicated that the results of the November, 1996 evaluation by the private psychologist provided clear evidence of a perceptually based learning disability (Exhibit2).

        A speech and language evaluation was performed on May 1, 1998. The evaluator reported the boy’s receptive and expressive language skills were within normal limits, but there was a 34-point discrepancy between his expressive and receptive language skills. The student’s auditory recall for compound/complex sentences was excellent, while his auditory processing for semantic classes/relationships and ability to follow multi-level directions with linguistic concepts were deficient. A few problems were noted in the boy’s ability to assemble sentences, but he could adequately narrate a story. The speech/language pathologist who performed the evaluation recommended that the boy receive 30 minutes of speech/language therapy in a group of two "…if academics are affected by the discrepancy in skills" (Exhibit 4).

        The CSE conducted its annual review on June 25, 1998. It recommended that the boy not be classified as a child with a disability, and that he attend a regular education program (Exhibit 9). Although it recommended that the boy not remain classified, the CSE prepared an individualized education program (IEP) for him which included annual goals to promote his transition from school to post-school opportunities (8 NYCRR 200.4 [c][2][viii]). I note that a CSE’s recommendation not to classify a child may be made in the form of an IEP (8 NYCRR 200.4[c][1]). The CSE’s recommendation was forwarded to the petitioners on July 6, 1998 (Exhibit 10). They disagreed with that recommendation, and requested an impartial due process hearing. The hearing was adjourned by consent until June 9, 1999, and it concluded on June 17, 1999.

        The impartial hearing officer’s decision was rendered on August 5, 1999, and corrected on August 20, 1999. She found that petitioners’ son was a high functioning student, both academically and socially. The hearing officer noted that the boy was performing at above grade level in most subjects, and found that he was ineligible for classification. The hearing officer further found that since the student had been previously classified and had been receiving speech/language therapy, the Board of Education was obliged to provide speech/language therapy to him to ease his transition into a full-time regular education program during the 1998-99 school year. She ordered respondent to reimburse the boy’s parents if they had in fact paid for speech/language therapy for their son during the 1998-99 school year, and to provide such therapy during the 1999-2000 school year if they had not.

        Petitioners seek review of that decision alleging, in part, that the CSE erred in concluding that the child was no longer eligible for classification. I must first note that I do not review the appropriateness of the CSE’s recommendation to classify the student as learning disabled in 1997. The issue before me is whether the CSE was correct in recommending that the boy no longer be classified in June 1998. The Board of Education bears the burden of proving that the CSE’s recommendation to declassify the boy was appropriate (Application of a Child with a Handicapping Condition, Appeal No. 93-32; Application of a Child with a Disability, Appeal No. 98-39).

        Although petitioners do not assert that the CSE was invalidly composed when it made its recommendation to declassify, they nevertheless assert that it was contrary to their son’s best interests to hold a CSE meeting after the Windward School had closed for the school year and the boy’s teacher had gone on vacation. I find that petitioners’ assertion does not afford a legal basis for overturning the CSE’s recommendation. They also express concern about the fact that the CSE’s school psychologist did not conduct a full evaluation, but chose to rely upon the report by the private psychologist for certain information. The CSE school psychologist was not required to readminister each of the tests which the private psychologist had used in his November, 1996 evaluation. He and the CSE could rely upon the prior test results (Application of a Child Suspected of Having a Disability, Appeal No. 98-80). Having read the school psychologist’s report, and the testimony of a second school psychologist at the hearing (Transcript pp. 32, 43), I find that the CSE adequately evaluated the boy prior to recommending that he be declassified.

        Petitioners assert that their son had significant educational needs as reflected by the disparity between his verbal and performance IQ scores. While a significant discrepancy between verbal and performance IQ scores may be evidence of a learning disability, it does not per se afford a basis for concluding that a child should be classified as learning disabled. 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 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).

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).

        Petitioners contend that the CSE ignored the fact that the private psychologist had opined that their son had a perceptually based learning disability. They assert that their son’s academic achievement did not match his intellectual capacity because of his disability. However, the test results reported by respondent’s educational evaluator in 1997 (Exhibit 11) and the results reported by a second educational evaluator in 1998 (Exhibit 3) do not evidence a significant discrepancy between the boy’s expected and actual achievement.

        Petitioners contended at the hearing that their son’s performance under the optimal conditions of the educational evaluations, i.e., working 1:1 with the evaluator in a quiet environment with little or no distraction, was not indicative of his actual performance in the classroom. I note that there are two progress reports from the Windward School in the record. The first is dated March 9, 1998, and includes standardized test results, as well as a report card. The latter indicates that each student is marked on individual ability and effort. The report card indicates that petitioners’ son was making satisfactory progress (Exhibit 8). The second progress report is dated February, 1999. It is similar to the 1998 report, in that it describes a student who was making excellent progress and constantly improving. Although his written work was described as being in need of improvement, it was not indicated to be a matter of serious concern. His teachers described petitioners’ son as a capable, cooperative student who had little difficulty understanding concepts introduced to him (Exhibit A). Petitioners contend that the Windward reports are written "optimistically" so that they can be shared with the student (Transcript pp. 46 and 52). One of the boy’s teachers at Windward testified at the hearing. Her testimony about the boy’s performance did not differ materially from her written description of his performance in Exhibit A.

        The teacher also testified about the boy’s performance on the Stanford Reading and Mathematics Achievement Tests in the Spring of 1999 (Transcript p. 70). Although the boy’s performance was reported to be significantly better on each test when time limits were not applied, I find that those test results do not afford a basis for concluding that the CSE erred in June of 1998 by finding he was no longer eligible for classification. First, I must point out that those tests are not diagnostic tests, and were administered almost one year after the CSE made its recommendation. I further note that a score in the 34th percentile for reading comprehension when timed is still within the normal range. In addition, I must point out that the student’s math scores on the timed test appear to be totally inconsistent with all previously reported scores. Even if I were to assume that petitioners’ son required additional time to complete tests, it would not follow that he should be classified as a child with a disability. Instead, he may require an accommodation of extra time under Section 504 of the Rehabilitation Act of 1973, rather than special education.

        I have also considered the report by the speech/language therapist about providing speech/language therapy to the boy during the 1998-99 school year, if his academics were affected by the discrepancy between his expressive and receptive language skills (Exhibit 4). Even if I were to assume that his academic performance was being affected by that discrepancy, I must point out that a student who may need a related service such as speech/language therapy, but who does not need special education, does not come within the statutory definition of a child with a disability (20 USC 1401[3][A]; Section 4401[1] of the Education Law). Since the boy was not eligible to remain classified as a child with a disability, petitioners cannot obtain an award of tuition reimbursement for the 1998-99 school year.





Dated: Albany, New York __________________________
January 17, 2001 JOSEPH P. FREY