The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parent, 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
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Paul Kleidman, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which upheld a determination of respondent's Committee on Special Education (CSE) that petitioner's daughter should not be classified as a student with a disability. The appeal must be sustained.
Petitioner's daughter was 14 years old and a student at Moore Catholic High School (Moore), a private high school, at the time of the hearing in June 2003.
In June 2002, petitioner requested that respondent evaluate her daughter to determine if she had a learning disability (Exhibit 14). In August 2002, respondent prepared a social history of the student. During the interview for the social history, petitioner described her daughter as a "non-reader" since the second grade and also reported that she had difficulty with mathematics. Petitioner also reported that the student was able to enroll in Moore only after attending a summer school program and that she had previously received private tutoring (Exhibit 1).
A school psychologist evaluated the student in August 2002. Administration of the Stanford-Binet Intelligence Scale: Fourth Edition (Stanford-Binet) yielded a composite standard score of 110, indicating cognitive development in the average range and one point short of the high average range and corresponding to the 73rd percentile. Subtest scores identified relative strength in abstract/visual reasoning and relative weakness in short-term memory. The psychologist reported that the student exhibited anxiety during the administration of this test. Based solely upon the results of the Stanford-Binet, the psychologist reported that the student did not appear to have a disability (Exhibit 3).
An educational evaluation of the student which was also performed in August 2002. As part of the evaluation, respondent's educational evaluator administered tests from the Woodcock-Johnson III Tests of Achievement. The student achieved standard scores of 89 in broad reading (23rd percentile), and 100 in broad math (49th percentile). The student also achieved standard scores of 79 in math fluency (8th percentile), 80 in reading fluency (10th percentile), and 96 in letter-word identification (39th percentile). The evaluator's report noted that the student's ability to decode unfamiliar words was weak. The evaluator suggested that the student would benefit from a program that provided tutorials for reading and writing, some small group instruction, after school activities in reading and writing, journal writing, and repetition as needed. As a general observation, the evaluator reported that the student did not "appear to exhibit any type of anxious behavior" (Exhibit 4).
In response to respondent's request that petitioner complete and return the result of a physical examination, petitioner submitted a physical examination report from the student's physician. The report form included a statement that the student had dyslexia (Exhibit 11).
Respondent's CSE, with petitioner attending, met on September 30, 2002 to consider the student's eligibility for services under the Individuals with Disabilities Education Act (IDEA). The CSE determined that petitioner's daughter was not a student with a disability. Petitioner disagreed with the CSE's determination and as a result, respondent's CSE reviewed the matter again on March 24, 2003. At that meeting, the CSE again determined that petitioner's daughter should not be classified as a student with a disability. Petitioner subsequently requested an impartial hearing because of her continuing disagreement with the CSE's determination.
The hearing in this matter was held on June 2, 2003. The hearing officer rendered a decision on June 18, 2003. He stated that the educational evaluation should be considered as a whole and that the student did not have a significant discrepancy between actual achievement and expected achievement. In support of his position, he also cited the testimony of respondent's witnesses that the student's low scores in the educational evaluation were the result of her anxiety.
The Board of Education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of the Bd. of Educ. of the Auburn Enlarged City School District, Appeal No. 01-022; 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). With respect to the disability at issue here, learning disabled 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 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]).
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 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 Bd. of Educ., 27 Ed Dept Rep 272 ). 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).
In light of the information contained in the psychological evaluation and the significant discrepancy reported on the student's achievement scores for reading fluency and math fluency (see Exhibits 3, 4, 13), I find that respondent has not met its burden. The hearing officer's conclusion that the educational evaluation was to be considered as a whole and that the student did not have a significant discrepancy between actual achievement and expected achievement ignored this discrepancy. Moreover, the contention expressed at the hearing by respondent's witnesses that the CSE's determination that the discrepancies in the student's scores were the results of anxiety (see Transcript pp. 29, 34-36; see also Exhibit 16) is inconsistent with the educational evaluation report which specifically stated that petitioner's daughter was not anxious during the educational evaluation (Exhibit 4 p. 1). I also note that the record does not indicate any discussion of the physician's report which contained a diagnosis of dyslexia or of a written report from the student's English and religion teacher which indicated that the student's concentration and school work was only fair, that she frequently needed questions or notes to be repeated, that her words became jumbled, and that most of her work becomes misplaced (Exhibit 18).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall re-evaluate the student, taking into consideration her cognitive abilities, the specific weaknesses identified in previous achievement testing and her academic performance in the classroom, and shall recommend whether she is eligible for classification as a child with a disability.
Albany, New York
October 17, 2003
PAUL F. KELLY