The State Education Department
State Review Officer

No. 00-009

 

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 Arlington Central School District

Appearances:
Raymond G. Kuntz, P.C., attorney for respondent, Jeffrey J. Schiro, Esq., of counsel

DECISION

        Petitioners appeal from an impartial hearing officer's decision which upheld a recommendation by respondent's committee on special education (CSE) that their son should not be identified as a child with a disability, and denied petitioners' request for an independent evaluation of their son at public expense. Petitioners challenge the hearing officer's determination that the CSE had adequately evaluated their son, and ask that I find that their son should be classified as a child with a learning disability. They also seek an award of compensatory education for the boy, as well as a determination that they are entitled to a new hearing regarding their request for tuition reimbursement for their son's enrollment in a private school during the summer of 1998. The appeal must be dismissed.

        Before reaching the merits of petitioners' appeal, I must first address several procedural issues. First, petitioners assert that I cannot be impartial in deciding this appeal because I am an employee of the State Education Department. The Individuals with Disabilities Education Act (IDEA) mandates that parents of a child with a disability be afforded the opportunity to present complaints pertaining to their child's right to a free appropriate public education (20 USC 1415[b][6]). When parents bring such a complaint, they must be afforded the opportunity for an impartial due process hearing, conducted by the state educational agency (SEA), or the local educational agency (LEA) (20 USC 1415[f][1]). If the due process hearing is conducted by a LEA, any party may appeal the hearing officer's decision to the SEA. The SEA officer conducting the review must make an independent decision upon completion of the review (20 USC 1415[g]).

        In New York State, impartial hearings are conducted by LEAs, and reviews are conducted by the SEA ( 4404 of the New York Education Law). The IDEA expressly precludes any employee of a school district from serving as a hearing officer in an impartial hearing. The IDEA does not, however, preclude an employee of the SEA from conducting an impartial review of a hearing officer's decision. Indeed, a blanket prohibition banning SEA employees from serving as reviewing officers is inconsistent with the express direction of the statute that the SEA "shall conduct an impartial review of the hearing" (34 C.F.R. 300.510[b][2]).

        Prior to July 1, 1990, the Commissioner of Education conducted state level reviews in New York. However, the courts found that the Commissioner could not perform state level reviews because the Commissioner was responsible for the supervision of the State's public elementary and secondary schools (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Louis M. v. Ambach, 714 F. Supp. 1276 [N.D. N.Y 1989]; Holmes v. Sobol et al., 690 F. Supp. 154 [W.D. N.Y. 1988]). On July 1, 1990, Section 4404 of the Education Law was amended to provide that the decisions of locally appointed hearing officers would be reviewed by a State Review Officer of the State Education Department. Consistent with the criteria set forth in the Federal Revised DAS Bulletin 107, the Commissioner of Education promulgated regulatory requirements to ensure the impartiality of State Review Officers (8 NYCRR 279.1[c]). State Review Officers must be independent of, and may not report to, the office of the State Education Department which is responsible for the general supervision of educational programs for children with disabilities (8 NYCRR 279.1[c][3]). In addition, State Review Officers may not have previously been employed by the State Education Department in positions requiring their routine personal involvement in decisions made by school districts regarding the education of such children (8 NYCRR 279.1[c][5]). The present statutory and regulatory schemes for state level review in New York were reviewed and upheld in Application of the Bd. of Ed. Baldwin UFSD v. Sobol, et al., 160 Misc. 2d 539 (1994). The court in Baldwin expressly held that the current review procedure did not violate Federal law.

        I have been selected as the State Review Officer in accordance with the criteria for impartiality set forth in 8 NYCRR 279.1(c). I do not report to any officer of the State Education Department who is responsible, directly or indirectly, for the supervision of educational programs for children with disabilities. My duties do not involve any policy or procedure which could be the subject of the present appeal, and I am not involved in any way with the supervision of school districts. In view of the foregoing, I find that there is no basis in law for petitioners' objection to me serving as the State Review Officer because I am an employee of the State Education Department (Application of a Child with a Disability, Appeal No. 94-12).

        Petitioners also assert that an improper relationship exists between the state and the law firm representing the Arlington Central School District. Petitioners have not offered any explanation for their assertion. They are apparently referring to the fact that a former associate of respondent's counsel is presently employed as an attorney in the Office of State Review, which provides technical assistance to the State Review Officers. The attorney discontinued working for respondent's counsel in December 1997. She began working for the Office of State Review in February 2000. I must point out that although I receive advice from the special educators and attorneys in the Office of State Review, the responsibility to decide this and any other appeal is mine alone. I find that there is no basis in fact for petitioners' assertion.

        Respondent asserts that petitioners' service of their notice of intention to seek review was untimely, and their service of the petition was improper because it was delivered to respondent's counsel. A notice of intention to seek review must be served upon a member of the board of education, the district clerk or the chief school officer at least ten days prior to service of the petition and within 30 days after receipt of the decision (8 N.Y.C.R.R. 279.2[b]). The petition must be served upon one of those individuals within 40 days after receipt of the decision (8 N.Y.C.R.R. 279[c]). The hearing officer's decision was dated November 26, 1999. Exhibits attached to respondent's answer show that the notice of intent was dated December 21, 1999 and received on December 27, 1999. The petition, dated December 28, 1999, was served on the school district's attorney on December 29, 1999.

        The notice of intention to seek review must be served within 30 days of receipt of the hearing officer's decision. In the notice of intention to seek review, petitioners indicate that they received the hearing officer's decision on December 1, 1999. Respondent has presented no proof contradicting petitioners' assertion regarding the date of receipt of the decision. I find that service of petitioners' notice of intention to seek review was timely because it was within the 30-day time period required under the regulations.

        Respondent asserts that the appeal should be dismissed because the petition was served upon its counsel, rather than upon a person designated to accept service on its behalf. In addition, respondent notes in its brief that the petition was served one day after service of the notice of intention to seek review, rather than ten days later as required by 8 NYCRR 279.2 (b). I find that petitioners did not comply with the Regulations of the Commissioner of Education pertaining to initiating appeals to the State Review Officer. However, I find that respondent has not been prejudiced by petitioners' failure to follow the rules, and I decline to dismiss the appeal on procedural grounds (Application of a Child with a Disability, Appeal No. 93-2; Application of a Child Suspected of Having a Disability, Appeal No. 93-7).

        At the time of the hearing, petitioners' son was nine years old, and had completed the third grade. He entered kindergarten in respondent's schools in September 1995. A progress report dated November 1995 indicated that, at times, the student needed encouragement to focus on his work (Exhibit SD-3). In a February 1996 progress report, his teacher reported that the boy needed extra time to finish his work, but had a good understanding of letter sounds and expressed himself well (Exhibit SD-4). By the end of the year, the teacher reported that the student had a good understanding of language and math skills, although he occasionally reversed letters and numbers. She also reported that he had become more focused, but he continued to need extra time to finish his work (Exhibit SD-5). The student achieved satisfactory grades in all but two areas on his report card. He needed to improve his ability to skip, and to use his work time wisely, but he was described as improving in those areas (Exhibit P-1). At the hearing, the boy's mother testified that he began to soil his pants during kindergarten (Transcript p. 747). However, he stopped doing this during the summer (Transcript p. 750). His mother opined that the incidents of soiling were related to the stress her child had experienced in school (Transcript p. 752).

        In the first grade during the 1996-97 school year, the student's teacher reported that he was behind in some readiness skills, which she attributed to immaturity rather than lack of ability. The teacher recommended that the student participate in respondent's reading recovery program (Exhibit SD-6). The student was placed in the early intervention program (Exhibit P-7; Transcript p. 243). The mother testified that her child began to soil his pants again during first grade, which she attributed to an increased work load in school (Transcript p. 749). By the end of first grade, the student's reading ability had improved from "beginning" to "developing". His writing skills also improved during the first grade. He achieved grades of "almost always" or "sometimes" in all categories of language development, mathematics, science, social studies and work habits/social growth. His teacher indicated that the child had trouble remaining focused, but had tried hard during the last quarter of the school year (Exhibits SD-7). Following first grade, the student reportedly attended summer school (Exhibit P-10).

        In the second grade, petitioners' son received group speech therapy for 30 minutes per week because he had difficulty pronouncing the final /r/ sound. By the end of the school year, he was able to self-correct his speech. Speech therapy was not recommended for him during the following school year (Exhibit P-5). The student was reportedly seen by a private psychologist for counseling approximately six times during the second grade (Transcript p. 1037). The psychologist did not testify at the hearing, and there is no report by him in the record. The boy's second grade teacher reported that he continued to have problems focusing on his work (Exhibit SD-8). However, the boy's reading level had improved to "independent" (the highest) level by the end of the school year, and he achieved grades of "good" or "excellent" in all areas. Nevertheless, the boy's second grade teacher recommended that he be retained in the second grade because of immaturity and lack of self-direction (Transcript p. 224; Exhibit P-7). The boy's mother opposed retention because she felt her son would be bored if he repeated second grade (Transcript p. 851). The student did attend summer school for assistance in math after completing the second grade (Transcript pp. 305, 670).

        The student reportedly began to soil his pants again in November or December 1997 while in the second grade (Transcript p. 750). There is no evidence that the boy's teachers were aware of the problem. His mother did not discuss the problem with her child's teachers, nor did she ask her child's doctor about it (Transcript pp. 751, 758). She believed that it was not a medical problem, but was related to the stress her son was reportedly experiencing in school.

        During the 1998-99 school year, the student was enrolled in the third grade at respondent's LaGrange Elementary School. In November 1998, his teacher reported that the boy was progressing nicely, but he worked very slowly. She noted that the student's class assignments were frequently unfinished, but she did not want to send the assignments home because she believed he would be unable to complete them in a timely manner (Exhibit SD-11). She also reported that the legibility of the student's writing was improving, but he needed to improve the accuracy of his math computation. Nevertheless, the student achieved generally satisfactory grades during the first quarter of the 1998-99 school year.

        In November 1998, the student's second and third grade teachers, as well as his summer school teacher during the summer of 1997, completed a questionnaire regarding his behavior. The teachers indicated whether certain phrases describing behavior frequently associated with an attention deficit hyperactivity disorder accurately described the student. The summer school teacher indicated that the student had not exhibited any of the behaviors on a consistent basis. The second grade teacher indicated that the student was often "squirmy", failed to finish things, was easily frustrated, and made excessive demands for teacher attention. The third grade teacher indicated that the boy often daydreamed or got lost in his own thoughts, failed to finish things, was easily frustrated, and had difficulty with directions (Exhibit P-10).

        After the first quarter of the 1998-99 school year, the student began to receive private tutoring once a week (Transcript p. 710). Tutoring continued through the end of the 1998-99 school year (Transcript p. 809). The tutor spent most of her time helping the student with his homework, but also instructed him in writing using the Orton-Gillingham methodology (Transcript pp. 923, 928). She opined that the boy's writing skills had improved as a result of her tutoring. In any event, the student continued to receive satisfactory grades, except for the accuracy of his math computation, during the second and third quarters of the 1998-99 school year (Exhibit SD-12). During this period of time, his teacher and his mother corresponded on a regular basis in the boy's "Update Folder" about his progress, missing assignments, and other matters of concern (Exhibit SD-9).

        In a letter dated January 30, 1999, petitioners requested an evaluation of their child (Exhibit SD-13). A psycho-educational evaluation was conducted in February 1999. The evaluator conducted 2 classroom observations as part of her evaluation (Transcript p. 73). She reported that the boy admitted to her that he was nervous about being evaluated, and that he had moved around quite a bit during testing. However, she opined that the test results were a valid indication of the student's cognitive functioning. On the Weschler Intelligence Scale for Children – III, the student achieved a verbal IQ score of 125, a performance IQ score 104 and a full scale IQ score of 116. His full-scale score fell into the high average range of intellectual functioning. The evaluator noted that a significant discrepancy existed between the student's verbal and performances scores, which suggested that the student's ability to use verbal skills to interpret information was more highly developed than his visual skills. On the Developmental Test of Visual-Motor Integration, the student achieved a standard score of 121, which fell into the 92nd percentile. Although the student had some difficulty with form and integration, his fine motor control was quite good. The Woodcock-Johnson Tests of Achievement were also administered. In broad reading, the student achieved a grade equivalent of 6.5, placing him in the 96th percentile. The student achieved a grade equivalent of 3.9 for broad math, placing him in the 60th percentile. In broad written language, the student achieved a grade equivalent of 3.9, which fell into the 55th percentile. The student achieved a grade equivalent of 6.1 for broad knowledge, placing him in the 95th percentile, with grade equivalent scores of 6.9 for science, 6.6 for social studies, and 4.8 for the humanities. The evaluator opined that the student did not have an educational disability. She suggested that the student's progress be monitored by his teachers (Exhibit SD-16, P-13).

        A speech/language evaluation was conducted in March 1999. The Clinical Evaluation of Language Fundamentals 3 (CELF) was administered to the student. In receptive language, the student's standard score was 131, placing him in the 98th percentile. The student's expressive language standard score was 125, which fell into the 95th percentile. His total language standard score was 129, placing him in the 97th percentile. The evaluator described the boy as having excellent language skills, and recommended that he not receive speech/language services (Exhibit SD-23, P-15). The evaluator did not conduct a test of his written language skills.

        A social history was apparently taken on March 3, 1999. Although the social history was dated March 3, 1995, it described the student as being eight years old and attending third grade, which could not have been true on that date (Exhibit SD-2). In addition, the mother testified that she spoke to the school psychologist who prepared the history on the telephone on March 3, 1999 (Transcript p. 763). I will assume that the year written on the social history is incorrect, and March 3, 1999 is the correct date. I note that the boy's mother testified that her March 3, 1999 conversation with the person who prepared the social history did not concern her son. She asserted that she did not speak to the evaluator about her son until the CSE met to discuss whether the boy should be classified as a student with a disability (Transcript pp. 720-723). However, she also testified that she spoke on the telephone with the evaluator about her son (Transcript p. 719). I will accept Exhibit SD-2 as the social history. The social history indicated that the student had difficulty falling asleep, and he also had difficulty waking up in the morning.

        The CSE convened on March 23, 1999. In determining whether to classify the student as a child with a disability, the CSE considered the boy's social history, psycho-educational evaluation, observation report, and the report of a physical examination. The CSE determined that the student was ineligible for special services because his cognitive abilities were within the high average range and his academic achievement was also highly developed. The parent requested that the school building team review the boy's writing assessment. It was agreed that the student would be referred for a physical therapy consultation (Exhibit SD-21).

        A physical therapy screening was conducted on May 13, 1999. The physical therapist reported that the student had excellent balance and good coordination. Although the student's physical education teacher felt that the student's muscle tone was below average, the physical therapist reported that petitioners' son did not have any educationally related physical therapy needs. The physical therapist did not recommend any physical therapy for the boy, but did recommend an occupational therapy "consult" for him (Exhibit SD-30). I note that the boy's mother subsequently requested that an occupational therapy evaluation be performed (Exhibit P-31). There is no evidence in the record that an occupational therapy evaluation or consult was conducted.

        In a letter dated April 26, 1999, the boy's mother advised the CSE chairperson that she did not agree with the CSE's recommendation that her son not be classified, and that she wished to have an independent evaluation performed at school district expense (Exhibits SD-22, P-24). On June 9, 1999, the mother requested that the CSE reconsider its recommendation (Exhibit P-31). In a letter dated June 14, 1999, respondent's attorney informed petitioners that the CSE believed that it had adequately evaluated their son, and that respondent would initiate an impartial hearing to establish the adequacy of the evaluations by the CSE (Exhibit P-32). Federal and state regulations provide that a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense if he or she disagrees with a school district's evaluation. However, the 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 a school district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense (34 C.F.R. 300.502, 8 NYCRR 200.5[a][1][vi][a]).

        The student's final report card for the 1998-99 school year indicated that the student achieved marks ranging from average to excellent in all but two of the thirteen academic areas. In language arts, the student achieved a mark of "I" (Improving) for the legibility of his handwriting. I note that in a separate report about the boy's cursive writing, his teacher indicated that it was satisfactory, except for the slanting of his letters (Exhibit P-30). The accuracy of the student's math computation was described as being in need of improvement, as was the case during the previous three quarters of the school year. The student achieved marks of outstanding or satisfactory in all twenty-three study skills except for the category of "uses time wisely" (Exhibit P-35).

        In a report dated July 12, 1999, the student's private tutor stated that his spelling was on grade level. She reported that the student enjoyed reading, but he found it tedious to write. She opined that a program using the Orton-Gillingham teaching methodology "would be beneficial in improving" the student's skills (Exhibit P-37).

        The impartial hearing in this proceeding was held over the course of six days during July, August and September 1999. On the first day of hearing, petitioners indicated that they were about to request a hearing for the purpose of obtaining tuition reimbursement for a summer program for their son at the Kildonan School during the summer of 1999. They asked the hearing officer to consolidate their hearing request with the school district's request (Transcript p. 7). Respondent objected to the consolidation of the reimbursement and evaluation issues because the school district had not received notice of the Kildonan placement and the student had not been classified when he was placed in Kildonan (Transcript p. 226). However, it did not object to petitioners' request that the hearing officer consider their claim for reimbursement for the cost of their son's private tutor. The hearing officer sustained respondent's objection to consolidation of the tuition reimbursement claim because the boy had not been classified at the time of the hearing (Transcript p. 228).

        In his decision which was rendered on November 26, 1999, the hearing officer found that respondent's evaluation had adequately evaluated petitioners' son before its CSE determined that he was ineligible for classification as a child with a disability. He therefore denied petitioners' request for an independent evaluation at public expense. The hearing officer further found that the boy's academic performance in respondent's regular education program was commensurate with his ability, and he concluded that the CSE had properly determined that the student was ineligible for classification as a child with a disability.

        Petitioners challenge the hearing officer's decision in several respects. They assert that the decision was not sufficiently specific in setting forth findings of fact and categories of testimony. Petitioners also assert that they were denied their right to know the legal basis for the decision under federal and state law because the hearing officer did not include legal citations in his decision. With regard to the substance of the decision, petitioners allege that the hearing officer did not adequately consider certain facts, purposely distorted other facts, and demonstrated a bias in favor of respondent. Petitioners assert that a causal connection should have been established between the student's in-school performance and his propensity to soil himself. Petitioners assert that the hearing officer should have addressed the issue of a gifted student's eligibility to receive special education. Finally, petitioners assert that the CSE failed to evaluate their son in all areas of suspected disability.

        I will first address petitioners' objection to the format of the hearing officer's decision. The relevant federal and state statutes and regulations do not prescribe a specific format for hearing officer decisions. The current 8 NYCRR 200.5(i)(4)(ii) and former 8 NYCRR 200.5(c)(11) provide that a hearing officer's decision must be based upon the record of the proceeding, and must "set forth the reasons and the factual basis for the determination". I find that the hearing officer's decision met this standard. The fact that the hearing officer did not separate his decision into categories with specific headings does not afford a basis for invalidating his decision. Although hearing officers may include references to relevant statutes and regulations as well as decisional law in their decisions, there is no legal requirement that they do so.

        I have considered petitioners' assertion that the hearing officer was biased, did not give appropriate weight to certain evidence and purposely distorted the facts in his decision. As evidence of his alleged bias, petitioners refer to the hearing officer's comment in his decision about the credibility of some of the mother's testimony as well as his acceptance of their son's social history, which petitioners allege was fraudulent. Having looked at the record, I find that the hearing officer conducted the hearing fairly. In his decision, the hearing officer remarked that "while some of the mother's testimony was inconsistent and unconvincing, her descriptions of her son's troubling behaviors were vivid and believable". The fact that the hearing officer did not draw the conclusions which petitioners wished that he would draw from the evidence does not provide a basis for me to find that the hearing officer was biased. With regard to the allegedly fraudulent social history, I must note that petitioners have not challenged the accuracy of any statement in the document, except for their son's birth weight. They also challenge the omission of the fact that their son has three siblings from the social history. I find that these defects are immaterial.

        The two substantive questions in this appeal are whether respondent's CSE adequately evaluated petitioners' son and whether the CSE appropriately determined that the boy was ineligible for classification as a child with a disability. When a CSE receives a referral of a child suspected of having a disability, it must conduct an individual evaluation consisting of at least a physical examination, an individual psychological evaluation, unless a school psychologist assesses the child and determines an evaluation is unnecessary, a social history, and other appropriate assessments or evaluations (8 NYCRR 200.4 [b][1]). The relevant federal regulation in effect at the time of this child's referral provided, in part, that the child be assessed in all areas related to the suspected disability, including if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance communicative status, and motor abilities (34 CFR 300.532[f]). The federal and state regulations do not prescribe a particular format for any evaluation or examination.

        In this instance, the record includes a physical examination (Exhibit SD-10), a psychoeducational evaluation which included classroom observations (Exhibit SD-16), a social history (Exhibit SD-2), and a speech/language evaluation (Exhibit SD-23), as well as a physical therapy consult which was obtained after the CSE meeting. Although the physical therapist suggested that an occupational therapy consult be obtained, I must point out that the school psychologist had reported that the child's fine motor control was quite good, as measured by his performance on the Developmental Test of Visual Motor Integration. A deficit in fine motor skills may be manifested by poor handwriting. I have considered the comments by the boy's teachers, and examined the samples of his handwriting which are in the record, and I find that there is no basis for believing that an occupational therapy evaluation would have provided any significant new information about an educational disability to the CSE.

        I have considered petitioners' objections to the evaluation performed by respondent's school psychologist. I find that there is no reason in the record to conclude that the results of the cognitive and academic testing which the school psychologist performed are not valid. Petitioners also contend that the CSE did not evaluate their son in all areas of suspected disability because it failed to evaluate him for the possible existence of an attention deficit disorder (ADD). I must note that there is no one method or test for ascertaining whether the condition of ADD exists. In this instance, three of the child's teachers completed a questionnaire in November 1998 which was designed to indicate whether the boy manifested signs of an attention deficit hyperactivity disorder, which is a related condition. The questionnaires were filled out at petitioners' request for a private neurologist, who reportedly did not complete an evaluation report (Transcript p. 1037). In view of the teacher's responses to the questionnaire, which did not indicate that the student manifested the symptoms of the disorder to a significant degree, I find that petitioners' claim that psychiatric and neurological examinations should have been included in the CSE's evaluation of their son is without merit. Upon the record which is before me, I find that the hearing officer correctly concluded that respondent's CSE had adequately evaluated petitioners' son. Therefore, I further find that they are not entitled to an independent evaluation at school district expense.

        When a CSE recommends that a student not be classified as a child with a disability, the board of education bears the burden of establishing the appropriateness of the CSE's recommendation (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18). In order to be classified as a child with a disability under federal regulation (34 C.F.R. 300.7[a][1]), or its state counterpart (8 NYCRR 200.1[mm]), a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon the student's educational performance to the extent that he or she requires special services and programs (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36).

        A CSE may determine that a child has a specific learning disability if a severe discrepancy exists between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, written expression, mathematics calculation or mathematics reasoning (34 C.F.R. 300.541[a][2]). New York State regulation mandates that students who exhibit a discrepancy of 50 percent or more between expected achievement and actual achievement be deemed to have a learning disability (8 NYCRR 200.1[mm][6]). 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 [2d Cir. 1981]; Application of a Child with a Handicapping Condition, Appeal No. 91-15; Application of the Board of Educ., 27 Ed Dept Rep 272 [1988]). In order to be classified as learning disabled, a student must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34). Not every child with an imperfect ability to think, speak, read, write, spell or do mathematical calculations because of a disorder in the child's psychological processes is eligible to be classified as a child with a learning disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-41).

        Petitioners assert that their child's unusually high scores on some parts of his cognitive and academic testing indicate that he is gifted in addition to being learning disabled. I must point out that giftedness is not a disability under the IDEA (Roane County School System v. Ned A., 3-93-CV-744, U.S. D.C. E.D. Tenn., 1995 [22 IDELR 574]), nor is it under New York State's definition of a child with a disability (see Section 4401 [1] of the Education Law; 8 NYCRR 200.1[mm]; Application of a Child with a Disability, Appeal No. 99-36). Although New York State encourages school districts to provide programs tailored to meet the needs of their gifted students (see Article 90 of the Education Law; 8 NYCRR 142), it does not require them to do so (Bennett v. City School District of the City of New Rochelle, 114 A.D. 2d 58 [2d Dept., 1985]).

        As noted above, the school psychologist reported that there was a discrepancy between the student's verbal and performance IQ scores. However, that discrepancy does not establish per se that the student has a specific learning disability. The CSE believed, and the record shows, that the student's performance in school was generally commensurate with the results of his cognitive testing. On the nationally recognized Woodcock-Johnson Tests of Achievement which were administered to him in the sixth month of the third grade, the boy's lowest scores were 3.9 for broad math and broad written language. His scores for reading and content areas such as science and social studies were well above grade level, reflecting his above average verbal IQ scores. His study habits were all satisfactory or outstanding other than the wise use of his time (Exhibit P-35). Neither the psychological evaluator nor the speech language evaluator felt that the student was an appropriate candidate for special services (Exhibits SD-16 and SD-23). I find that the CSE's recommendation that the student not be classified as a student with a disability was appropriate. However, respondent should continue to monitor the student's academic progress, as recommended by the school psychologist.

        Petitioners seek one year of compensatory education for their son. Compensatory education is an equitable remedy which may be awarded when a student with a disability has been excluded from school or denied appropriate services for an extended period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Application of a Child with a Disability, Appeal No. 98-6). I have found that petitioners' son was not eligible for classification as a child with a disability. Therefore, he is not eligible for an award of compensatory education. Petitioners' request for a new hearing regarding their claim for tuition reimbursement must be denied because the remedy of tuition reimbursement is available to children with disabilities who have not been offered an appropriate educational program to meet their special education needs.

        THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
March 30, 2001 JOSEPH P. FREY