The State Education Department
State Review Officer

No. 02-040






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


Sonia Mendez-Castro, Esq., attorney for petitioners

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Sara Mason, Esq., of counsel



        Petitioners appeal from an impartial hearing officer's decision which denied their request for reimbursement for the cost of their son's tuition at the Xaverian High School in Brooklyn (Xaverian) for the 2000-01 school year. The hearing officer upheld the recommendation by respondent's Committee on Special Education (CSE) that the student not be identified as a student with a disability. The appeal must be dismissed.

        At the time of the hearing in October 2001, petitioners' 17-year-old son was enrolled in a small self-contained 11th grade class in the Real Education Achievement (REACH) program at Xaverian, where he was mainstreamed for English and religion. Petitioners unilaterally placed their son at Xaverian.

        In the seventh grade, petitioners' son developed reactive arthritis and was placed on home instruction for the latter half of the academic year. He returned to school in the eighth grade, but was diagnosed with mononucleosis and again placed on home instruction for the second half of the school year. During this period, his interest in academics steadily declined, and he was failing some of his classes. In September 1998, he enrolled in the ninth grade at respondent's John Dewey High School (Dewey), but he soon began cutting classes on a regular basis. The record indicates that he was suspended for marijuana use and truancy, and that he did not attend school for several months. In September 1998, petitioners referred their son to a psychiatrist, who diagnosed him with depression and prescribed Paxil. In February 1999, the student stopped taking the medication and enrolled in weekly individualized psychotherapy (Exhibit 4).

        In early 1999, when their son was 14 years old, petitioners referred him to a psychologist for a private psychoeducational evaluation (Exhibit 4) in order to determine whether a learning disability was interfering with his academic growth. The psychoeducational testing, conducted over a period of four days in February, March and April 1999, indicated that the student appeared lethargic and that his academic performance was probably hindered by attentional, memory and organizational deficits. According to the psychologist, he presented with depressive symptomology and met the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) criteria for attention deficit hyperactivity disorder (ADHD), Mathematics disorder and Dysthymic disorder. As part of the testing, the student was administered the Wechsler Intelligence Scale for Children - III (WISC-III) and obtained a verbal score of 100 (50th percentile), a performance score of 86 (18th percentile), and a full scale score of 93 (32nd percentile). He exhibited average abilities on the verbal portion of the test and, despite the gaps in his education, he demonstrated an age-appropriate knowledge of words and factual knowledge. His receptive and expressive language skills were age appropriate, and no language processing deficits were noted. However, on the nonverbal portion of the test, the student performed in the borderline range on measures of visual sequencing and of speed and accuracy of eye-hand coordination. Although he demonstrated superior mental flexibility skills and performed at age expectancy on most tasks, he had significant difficulty with tasks requiring sustained attention, mental manipulation and organizational skills. The psychologist noted sequencing, attentional and motivational deficits, which affected his performance on the nonverbal portion of the test.

        Further testing indicated that the student's visual memory abilities were in the average range, but that there were severe deficits in his verbal memory abilities. The deficit was most prominent when he was required to relay information immediately after it was presented to him orally. His performance on the Clinical Evaluation of Language Fundamentals – III (CELF-III) suggested that this discrepancy was not the result of language processing inefficiencies, and an examination by his family physician revealed no signs of neurological impairment.

        The Wechsler Individual Achievement Test (WIAT), administered to test the student's academic achievement, indicated that, despite the lack of consistent schooling, his basic reading, reading comprehension, spelling, and writing skills were appropriately developed for his age. However, he was significantly delayed in mathematics, where he functioned at an early sixth grade level. He was able to demonstrate a theoretical understanding of concepts involving addition, subtraction, multiplication, division, and basic fractions, but was unable to demonstrate an understanding of decimals, averages, exponents, complex fractions, or basic geometry, and often had difficulty organizing himself when problems involved lengthy numbers. The psychologist noted that the student's deficits in mathematics appeared to extend beyond his lack of exposure and most likely were influenced by his attentional and organizational deficits as well.

        A thorough evaluation of the petitioners' son's social/emotional functioning could not be performed due to his resistance to projective testing, but clinical interview findings suggested that he was emotionally constricted and anxious about his ability to achieve the following year in school. The limited testing that was performed suggested strong feelings of insecurity and performance anxiety. Although he was described as hyperactive, he appeared lethargic, reportedly slept a lot, and suffered feelings of low self-esteem, hopelessness and difficulty making decisions. He had severe attentional and memory problems which caused him to feel overwhelmed by school, and apparently decided at the beginning of the school year that he could not handle school any more. The psychologist added that the student appeared remorseful about his behavior surrounding school. To help alleviate these feelings, he turned to recreational drug use to take his mind off of his problems, although he did not appear to have any serious drug dependency issues. Despite feelings of depression he had been able to make and maintain friendships, enjoy his music and play the guitar.

        The psychologist opined that the student required a structured school environment in which his attentional, organizational and memory deficits would be addressed. She suggested an alternative high school program in which the student could focus on his passion for music and that the environment be structured to address the student's attentional difficulties and reduce distractions. The psychologist also recommended resource room services to address the student's delayed mathematical skills, and individual therapy and psychopharmacological treatment for depression (Exhibit 4).

        In an undated addendum to the psychoeducational report, the psychologist noted that, since the time of the evaluation, petitioners' son had enrolled in the REACH program at Xaverian, and had done well in the program, as was demonstrated by his increased academic success and consistent school attendance. The psychologist recommended that the student remain in the REACH program because he needed this small, structured, individualized setting in order to help remediate his learning problems and counteract school phobia (Exhibit 4).

        By letter dated November 11, 2000, petitioners referred their son to respondent's CSE (Exhibit 1). In preparation for the CSE review, a social history was prepared based upon an interview with the student's father on November 22, 2000. The parent reported that, despite his son's illnesses three years earlier, he was in good health at the time of the interview and took no medication. Following his period of truancy at Dewey and subsequent suspension from school, the family was referred to a private therapist who suggested that the student attend Xaverian, where the therapist was on staff and was available to him. The parents reported that their son was now attending school on a regular basis. The family was pleased with the support that their son was receiving, and the student also felt positive about the school. He was responding well, played the guitar, played in a band, and his father described him as a "people person" with good interpersonal skills (Exhibit 2).

        An educational evaluation was conducted on November 22, 2000, during which the student worked diligently on all tasks presented and maintained his attention for the duration of the evaluation. He required little encouragement or feedback and responded appropriately to positive reinforcement. The evaluator noted that the student's expressive and receptive language appeared adequate, and that he performed above age and grade levels in decoding and reading comprehension. When presented with a topic to develop in a structured writing sample, he achieved slightly below age and grade levels.

        The evaluator reported that mathematics was an area of weakness for petitioners' son. He was stronger in numerical operations than he was in mathematics reasoning, but, in both areas, he performed below age and grade levels. The student had difficulties calculating long division, performing numerical operations involving mixed fractions and solving algebraic equations. His computation weaknesses affected his performance on the mathematics reasoning subtest, and he could not properly write decimals and decimal fractions. The student had difficulty solving certain multi-step word problems. In content areas, petitioners' son exhibited minor delays in his ability to recall factual information taught in content area classes. The evaluator concluded that the student's educational program should address his weaknesses in mathematics through reteaching and overlearning arithmetical concepts, and recommended steps that should be undertaken in meeting that goal (Exhibit 5).

        During a structured observation of petitioners' son in his tenth grade Regents biology class on December 5, 2000, the observer noted that the student arrived promptly and sat in a class of 14 students. He actively participated in the lesson, volunteered information and asked relevant questions. He was engaged, very respectful and motivated. The teacher reported that when he was late, which he often was, he took the responsibility to complete work he missed and that he was not working at his academic potential (Exhibit 7).

        Respondent's school psychologist conducted a psychological evaluation of petitioners' son on December 6, 2000, during which the student was administered the Kaufman Brief Intelligence Test (KBIT). The student performed in the average range, obtaining an overall composite IQ score of 99, a vocabulary score of 97, and matrices score of 101, evidencing equally developed and average verbal and nonverbal reasoning skills. The school psychologist compared the results of the current intellectual assessment with those obtained in April 1999, and noted that they were generally consistent with the exception that the student's nonverbal skills score was higher on the more recent test.

        Within the verbal realm, the student displayed adequate vocabulary development, knowledge of factual information, expressive language and overall verbal reasoning ability. He also exhibited adequate ability in the area of nonverbal reasoning, and was able to use complex mental processing skills in performing certain tasks. The psychologist noted that, in essence, the student had the intellectual capacity and cognitive skills to perform fairly well academically, if properly motivated, and that his current difficulties in school appeared to stem from emotional and motivational, rather than intellectual factors (Transcript p. 20).

        With regard to the student's social and emotional functioning, the school psychologist found the student to be a sociable young man who was grappling with academic strains and was prone to give up rather than face the challenges ahead. He coped with internal academic frustrations through avoidance, which resulted in his frequent bouts of absenteeism and lateness. His responses on the Rorschach Psychodiagnostic Test revealed a reality-based, non-psychotic youngster with adequate impulse control, who related well to people and his environment, although there was some evidence of emotional distancing and repression. He was anxious about his future. The school psychologist found the student to be an emotionally stable young man who grappled with feelings of low self-esteem and poor motivation in terms of his ability to succeed academically.

        The psychologist suggested that petitioners' son would benefit from motivational strategies in school by capitalizing on his strengths and interests, including art and music. She further recommended that the student become involved in ongoing school-based counseling where he could explore his negative feelings related to school and learn more adaptable means of coping with his internal frustrations (Exhibit 3).

        In a structured observation of the student in his tenth grade English class on January 8, 2001, it was noted that he arrived early, kept pace with the level of instruction and maintained his attention. The teacher reported that he had seen an improvement in the student’s work during the last few weeks, and that he was attending regularly and was more attentive. The student achieved 80 percent on the last test and received 44/50 on his homework assignments (Exhibit 8).

        An initial CSE review was conducted on January 16, 2001 with the student and his father in attendance. The CSE determined that the student did not qualify as a student with a disability. Relying on the results of the formal testing and evaluations that had been conducted, the CSE noted that the student was above average in reading and spelling and average in writing, but had significant delays in mathematics skills. Specifically, the WIAT and Woodcock Johnson Psycho-Educational Battery - Revised (WJ-R) results of November 12, 2000 indicated that the student achieved grade equivalent scores above 12th grade level in reading decoding, reading comprehension and spelling; at eighth grade level in science and humanities; at high seventh grade level in written expression with a writing composite score at the tenth grade level; at mid-seventh grade level in social studies and mathematical computation; and at mid-sixth grade level in mathematical problem solving. The CSE further noted that the student's intellectual functioning was in the average range with similar verbal and nonverbal scores, and it described him as "a bright youngster who had the cognitive potential to perform fairly well academically if properly motivated" (Exhibit 12).

        By a Final Notice of Recommendation, dated January 16, 2001, petitioners were notified that the CSE had determined that their son was not in need of special education services and that he should remain in general education (Exhibit 13).

        At petitioners' request, an impartial hearing was held on October 9, 2001. The impartial hearing officer rendered her decision on October 26, 2001. Because petitioners had not presented any evidence at the hearing to establish that their son was emotionally disturbed or other heath impaired, the hearing officer evaluated only the CSE's determination that he was not a student with a disability as well as the parents' contention that he was learning disabled. The hearing officer found that petitioners' son did not meet the criteria for classification as learning disabled pursuant to the Regulations of the Commissioner of Education and, having found that petitioners' son was not a student with a disability, denied their request for tuition reimbursement.

        Petitioners challenge the hearing officer's decision that their son was not a student with a disability for purposes of the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.), or its state counterpart, Article 89 of the Education Law. Respondent asserts that the record supports the hearing officer's decision upholding the CSE's recommendation.

        A board of education may be required to pay for educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The initial question in this appeal is whether petitioners' son should be identified as a student with a learning disability. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 01-017; Application of a Child with a Disability, Appeal No. 00-063; Appeal of a Child with a Handicapping Condition, Appeal No. 91-11).

Learning disability means 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 disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, 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[zz][6])

        The comparable federal regulatory criteria for finding that a student has a learning disability are set forth in 34 C.F.R. § 300.541, which requires that there be a severe discrepancy between a student'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 reviewed 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. 99-74; Application of the Bd. 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. 99-74; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34).

        Having reviewed the record before me, I find that petitioners' son does not meet the criteria for classification as learning disabled. Respondent's school psychologist testified that her December 6, 2000 evaluation of the student did not reveal that he exhibited any significant intellectual difficulties or disabilities. She concluded that petitioners' son, albeit bright, had limited confidence in his academic abilities and was unmotivated, and that his difficulties stemmed primarily from his chaotic school history and his substance abuse, rather than from any inability to learn (Transcript pp. 19-21). The current psychological and educational evaluations conducted by respondent reveal that the student was of average intelligence, and performed well above grade level in reading comprehension, decoding, and spelling. The record shows that on tests administered to the student in those areas, he consistently scored in the average range or better.

        The student is weak in the area of mathematics. That weakness can be attributed, however, to the student's lack of exposure to grade-level skills during his periods of truancy, as well as to his expressed lack of interest in the subject. Respondent's educational evaluator recommended that the student's weaknesses in mathematics could be addressed in the general education setting through reteaching and overlearning techniques (Exhibit 5). She also noted that the student's score in mathematical reasoning was adversely affected by his deficits in computation (Exhibit 5; Transcript p. 35); that during her evaluation, test protocols precluded his use of a calculator (Transcript p. 32); and that in his high school math class he would be able to use a calculator (Transcript p. 35). She testified that support services in mathematics were available to the student within the general education environment of the public schools (Transcript pp. 39-40).

        The 1999 private psychological evaluation (Exhibit 4) had also indicated a discrepancy between the student's verbal and nonverbal abilities. However, that discrepancy is not supported by the more current testing conducted by respondent's psychologist, who found that the student had equally developed verbal and nonverbal reasoning skills. Moreover, as the impartial hearing officer correctly noted, the discrepancy in the earlier assessment was reported not to be statistically significant. The record indicates that the student was abusing controlled substances during this period and that he had missed a significant amount of school due to illness, suspension, and truancy, which could have affected his performance on tests administered during that time. In light of the more recent evaluative information which indicates no severe discrepancy between the student's actual and expected achievement, I find no indication in the record that the CSE erred in concluding that the student did not have a learning disability.

        I further find that the petitioners' son should not be classified as emotionally disturbed or as other health impaired. As of January 1, 2000, the definition of emotional disturbance was changed to read as follows:

[A] condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:

    1. an ability to learn that cannot be explained by intellectual, sensory, or health factors;
    2. an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
    3. inappropriate types of behavior or feelings under normal circumstances;
    4. a generally pervasive mood of unhappiness or depression; or
    5. a tendency to develop physical symptoms or fears associated with personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance (8 NYCRR 200.1[zz][4]).

        In order for a student to be identified as having an emotional disturbance, there must be a nexus between the student's emotional problems and his performance in school, requiring the provision of special education and related services (Application of a Child with a Disability, Appeal No. 99-47). Upon review of the record, I find that petitioners' son does not meet the definition of emotionally disturbed. The student reportedly had a diagnosis of depression. According to petitioner, Dr. Gannon, who did not testify at the hearing, and whose report was never included in the record before me, said that the student was mildly depressed, but that the depression was not long term (Transcript p. 64). He prescribed Paxil for the student to take temporarily, and petitioners reported that their son experienced positive results from the drug. Furthermore, his depression was being treated through the therapeutic counseling he was continuing to receive from a private counselor who also worked as a guidance counselor at Xaverian. In any event, although the petition seems to indicate otherwise (Petition paragraph 18), at the hearing, petitioners never asserted that their son should be classified as emotionally disturbed.

        A student who has ADHD may be classified as other health impaired (see Application of a Child with a Disability, Appeal No. 99-86), which is defined by state regulation as:

[H]aving limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance (8 NYCRR 200.1[zz][10]).

        Although there is evidence in the record that petitioners' son was suspected of meeting the DSM-IV criteria for ADHD, there is nothing in the record to support an ADHD diagnosis, particularly in view of the psychologist's and parents' descriptions of the student as lethargic. In any event, there is no proof that this condition affected his educational performance or his ability to benefit from instruction, especially in view of his average and above grade-level performance in many subjects. In order to be classified as a student with a disability, 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. 00-009). Furthermore, the medical conditions which the student experienced before his prolonged truancy have been resolved, and there have been no reports of recurrence.

        Based on the record before me, I find that the hearing officer correctly concluded that the CSE properly determined that petitioners' son should not be identified as a student with a disability. Accordingly, it is unnecessary to address the appropriateness of the private school placement chosen by the parents. I have considered petitioners' other claims, and find them to be without merit.








Albany, New York




May 2, 2003