The State Education Department
State Review Officer

No. 04-059

 

 

 

 

 

 

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 Pearl River Union Free School District

 

 

 

Appearances:
Shaw & Perelson, LLP, attorney for respondent, Garrett L. Silveira, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer which found that the evaluations conducted by respondent were appropriate, and, therefore, denied petitioner's request for independent educational evaluations (IEE).  Petitioner also appeals from the decision of the hearing officer upholding the 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 dismissed.

 

            Preliminarily, I will address a procedural issue raised in this appeal.  In her reply, petitioner asserts that respondent's answer should not be considered because respondent failed to verify it as required by state regulation (see 8 NYCRR 279.7).  The answer which was filed with the Office of State Review includes the requisite verification and will be considered in this appeal.

 

            Petitioner's daughter was seven years old and in the first grade at one of respondent's elementary schools when the hearing began in April 2004.  Intelligence testing administered in October 2003 yielded a verbal IQ score of 104, a performance IQ score of 94 and a full scale IQ score of 99, placing the child in the average range of cognitive ability (Dist. Ex. 16).  She exhibits relative weaknesses in word retrieval, auditory memory and auditory sequencing skills (Dist. Ex. 13), as well as deficits in auditory processing (Parent Ex. S).

 

            In November 2001, when the child was four years old, respondent's Committee on Preschool Special Education (CPSE) recommended that the child be classified as a preschool child with a disability and receive special education itinerant teacher services at the private preschool she attended (Parent Ex. L).  At an annual review meeting in May 2002, which petitioner attended, the CPSE recommended that the child be declassified (IHO Ex. XI at P-12).  Respondent confirmed the recommendation in a letter to petitioner dated July 15, 2002 (IHO Ex. XII).

 

            The child began attending respondent's schools as a regular education student for kindergarten during the 2002-03 school year (Dist. Ex. 2).  On her year end report card, the child received grades indicating that she demonstrated use of skill with growing independence or with independence, consistency and confidence (id.).  She continued to attend respondent's schools for first grade during the 2003-04 school year (Dist. Ex. 38).  In October 2003, petitioner requested a meeting with the school's Child Study Team to discuss and plan evaluations for her daughter in all areas of her suspected disability (Dist. Ex. 1).  She requested speech-language, educational, psychological, occupational therapy and neurological evaluations (id.).  Upon receipt of petitioner's request, the CSE Chairperson confirmed petitioner's intent to formally refer her daughter to the CSE (Tr. pp. 529-30).

 

            On October 21, 2003, the CSE Chairperson and other members of respondent's staff met with petitioner to discuss petitioner's concerns and to ensure that the appropriate evaluations were conducted (Tr. pp. 530-32).  Later that month, the CSE began the evaluation process.  One of respondent's school psychologists interviewed petitioner for a social history (Dist. Ex. 30).  The same psychologist conducted a classroom observation of the child (Dist. Ex. 26).  An educational evaluator conducted observations of the child in October and November (Tr. p. 262; Dist. Ex. 25).

 

            In an October 2003 occupational therapy evaluation, in addition to assessing the child's physical development in such areas as muscle tone and strength, in-hand manipulation skills and graphomotor performance, the evaluator administered the Developmental Test of Visual Motor Integration to assess the child's perceptual abilities in the areas of integration of visual perception and finger hand movements, visual processing and eye hand coordination (Dist. Ex. 20).  The child's scores indicated functioning at or above average in all areas.  The evaluator also assessed the student's handwriting using the Minnesota Handwriting Assessment.  Overall, the child's writing skills were compatible with her peers.  The evaluator opined that the child's abilities in all areas were functional for the classroom.

 

            A psychological evaluation also was conducted in October 2003 (Dist. Ex. 16).  As noted above, the child's scores on the Weschler Intelligence Scale for Children - III (WISC-III) placed her in the average range of intelligence.  The evaluator reported that the child's scores were statistically consistent with intelligence testing conducted in October 2001, and opined that it was an accurate measure of the child's intellectual potential at that time.  The evaluator noted relative weaknesses (low average range) in short-term auditory memory.  On the Bender Visual Motor Gestalt Test (Bender), while the child exhibited poor planning and visual recall in the low average range, she received a standard score in the average range.  The evaluator noted that the child's score on the Bender was statistically consistent with her scores on the WISC-III.  To further assess the child's memory, the evaluator administered the Wide Range Assessment of Memory and Learning-Screening (WRAML-S), results of which revealed a memory screening index in the low average range.  The evaluator opined that the child's scores on the WRAML-S appeared to be consistent with her scores on the Bender and WISC-III digit span subtest.  She opined that the child's scores demonstrated a relative auditory memory weakness, which may or may not impact her daily school performance.  The evaluator also conducted projective testing.  Due to petitioner's concerns regarding her daughter's level of emotional discomfort when under stress, the evaluator administered the Revised Children's Manifest Anxiety Scale.  The child rated in the 21st percentile for total anxiety when self-reported, indicating that 79 percent of her peers would rate higher in total anxiety.

 

            An educational evaluation conducted in October and November 2003 assessed the child's performance in reading, math, written and oral language, and academic functioning (Dist. Exs. 22, 24).  During the initial session in October, the evaluator administered the Wechsler Individual Achievement Test (WIAT).  Test results revealed that the child's scores fell within the average to above average range of performance, with strengths in basic reading and spelling (Dist. Ex. 22).  The following month, due to petitioner's concerns that there was a more current version of the WIAT (Tr. p. 269), the evaluator administered 22 subtests from the Woodcock-Johnson III Tests of Achievement-A (WJ-III) (Dist. Ex. 24).  The evaluator administered the supplemental subtests in order to gain further information.  Further, as a result of discussions regarding the child's need for additional time to complete tasks and in order to gain further information, the evaluator doubled the time period on some subtests, though she based her score on the timed version (id.; Tr. p. 284).  In general, the child exhibited strengths in the areas of basic reading, reading comprehension, math calculation and reasoning, written expression and basic writing, with a relative weakness in the oral language domain, scoring in the average range.  The evaluator noted that the child's results on the WIAT were consistent with her results on the WJ-III.

 

            A speech-language evaluation was conducted in October and December 2003 (Dist. Ex. 13).  The evaluator administered the Test of Language Development-Primary-Third Edition (TOLD-P:3) to assess the child's receptive and expressive spoken language competence relative to semantics, syntax and phonology.  The child scored in the average to above average range on all six subtests.  The child also scored in the average range on the Expressive One-Word Picture Vocabulary Test-R, which assesses verbal intelligence by determining a child's ability to form an idea or concept of a picture or an object.  On the Test of Word Finding, which included sections for picture naming of nouns, verbs and categories, as well as sentence completion naming and description naming, the child experienced difficulty retrieving words for spontaneous usage.

 

        On November 13, 2003, respondent's CSE Chairperson, school psychologist, educational evaluator, speech-language therapist, occupational therapist and the child's first grade teacher met with petitioner, at her request, to review the results of the evaluations (Tr. p. 537).  Petitioner requested that the district arrange for a central auditory processing evaluation (CAPE) and that her daughter's hand strength be measured (Tr. pp. 537-38, 547).  The CSE Chairperson agreed to petitioner's request for a neurological evaluation (Tr. p. 538).  In addition, the group discussed whether a Test of Auditory Perceptual Skills (TAPS) and an audiological evaluation should be conducted (id.).

 

           In a letter dated December 3, 2003, the CSE Chairperson confirmed her recent conversations with petitioner regarding the evaluations for her daughter (IHO Ex. XI at P-27).  She advised petitioner that the various facilities contacted could not conduct a CAPE because her daughter was too young.  She also confirmed the arrangements with the agreed upon physician for the neurological evaluation and for the audiological evaluation.  In response, petitioner acknowledged her understanding that her daughter did not meet the age requirements for a CAPE, and advised the CSE Chairperson that the speech-language therapist would conduct a TAPS (IHO Ex. XI at P-30).

 

            Results of the TAPS-R conducted in December 2003 reveal that the child had the most difficulty on the auditory interpretation of directions subtest, but her auditory perceptual quotient was in the 50th percentile (Tr. pp. 75-76; Dist. Ex. 13).  Later that month, the occupational therapist measured the child's hand strength and found it to be in the average range (Dist. Ex. 20).

 

            Results of the neurological evaluation conducted in December 2003 indicated that there was no evidence of a neurologic deficit (Dist. Ex. 4).  Additionally, the neurologist was unable to delineate any deficiency in auditory processing or auditory memory, although he recommended a sensory-auditory processing evaluation based upon the reported history of difficulties with auditory processing and short-term memory.  During the evaluation, the neurologist did not observe any behaviors suggestive of either an attention deficit disorder or an autistic spectrum disorder.

 

            At the end of December 2003, an initial audiological evaluation conducted by an audiologist at Jawonio, Inc. indicated that the child's hearing was within normal limits (Dist. Ex. 3). 

 

            In a January 2004 report, the clinical director at West Bergen Center for Children and Youth indicated that she conducted an initial consultation of the child in October 2003, and found that the child appeared to be experiencing some difficulties with attention, auditory processing, word finding and memory (Parent Ex. S).  She noted that while the child's diagnosis was unclear, there was evidence of auditory processing difficulties and she recommended further assessments.  After the initial consultation, the evaluator reviewed the results of the child's most recent evaluations, and confirmed her initial impression of auditory processing and attention deficits.  The evaluator recommended that a CAPE be conducted once the child was old enough for a valid assessment.

 

            Respondent's CSE met on January 26, 2004 and reviewed the evaluation reports, as well as information submitted by petitioner (Dist. Ex. 5).  Petitioner expressed her concerns about her daughter's difficulties and the classroom teacher discussed the child's performance.  The CSE reviewed the various categories for classification.  Although the child exhibited weaknesses in the areas of word retrieval and auditory memory, the CSE believed that the child was achieving commensurate with her age and ability level.  It concluded that the child was not eligible for classification as a student with a disability.  After the meeting, petitioner requested independent psychological, educational, speech-language and occupational therapy evaluations, as well as classroom observations and a comprehensive social history (Dist. Ex. 6).  By correspondence the following day, the CSE Chairperson asked petitioner to provide reasons why she objected to the evaluations (Dist. Ex. 7).  Petitioner responded on February 2, 2004 referring the CSE Chairperson to various documents including the January 2004 CSE meeting minutes (Dist. Ex. 8).  By letter dated February 19, 2004, the CSE Chairperson advised petitioner that her request for independent evaluations was denied and that respondent would be initiating a due process hearing to demonstrate the appropriateness of its evaluations (Dist. Ex. 9).

 

            Upon being advised of her appointment on February 19, 2004, the hearing officer contacted the parties to schedule a prehearing conference (IHO Decision, p. 2).  On March 3, 2004, prior to the prehearing conference, petitioner submitted to the hearing officer a "cross-petition for due process" asserting that the CPSE's May 2002 declassification of her daughter did not meet legal requirements.  She requested relief of compensatory services (IHO Ex. IV).  The following day, petitioner submitted a motion for summary judgment alleging, among other things, violations of state and federal law and regulation regarding the 2002 declassification and the 2003 evaluation process (IHO Ex. XI).  The prehearing conference was held on March 8, 2004.  At that time, the hearing officer denied petitioner's motion for summary judgment, the parties agreed to consolidate petitioner's challenge to the May 2002 declassification of her daughter with the pending matter, and respondent moved to dismiss petitioner's challenge to the May 2002 declassification based upon the statute of limitations (IHO Exs. V, XII).  In her response opposing respondent's motion to dismiss, petitioner also requested that the hearing officer recuse herself (IHO Ex. XIII).  On March 18, 2004, the hearing officer granted respondent's motion to dismiss petitioner's challenge to the May 2002 declassification and denied petitioner's request for recusal (IHO Ex. IV).

 

            The hearing began on April 1, 2004.  On April 6, 2004, petitioner requested a hearing challenging the CSE's January 2004 determination not to classify her daughter, and with the consent of the parties, the hearing officer consolidated petitioner's challenge to the CSE's January 2004 determination with respondent's IEE hearing (IHO Ex. XV; Tr. p. 248).  The hearing reconvened on April 27 and concluded on June 9, 2004, after five sessions.  The hearing officer rendered her decision on July 23, 2004.  She denied petitioner's request for independent psychological, educational, speech-language and occupational therapy evaluations, as well as classroom observations and a comprehensive social history.  She also denied petitioner's request to classify her daughter as a child with a disability.

 

            Petitioner appeals from the hearing officer's decision.  She asserts that the hearing officer was biased.  She also asserts that the hearing officer erred in denying her motion for summary judgment, in denying her request for IEEs, and in upholding the recommendation of respondent's CSE that her daughter not be classified as a child with a disability.

 

            I will address petitioner's claim of hearing officer bias first.  Petitioner claims that the hearing officer made prejudicial statements against her during the first two days of the hearing.  Additionally, she asserts that, at the hearing, the hearing officer mischaracterized written communications from her and improperly weighed certain testimony and evidence.  She also claims that the hearing officer infused bias against her throughout the decision.  A hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child with a Disability, Appeal No. 04-018; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071, Application of a Child with a Disability, Appeal No. 01-046).  Inappropriate remarks by a hearing officer may afford a basis for concluding that the hearing officer was biased (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 98-55).  I have carefully reviewed the entire transcript of the hearing, including the hearing officer's interaction with the parties and the text of her decision, and I find no evidence to support petitioner's contention.  Although petitioner disagrees with the conclusions reached by the hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the hearing officer (Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).

 

            Petitioner also challenges the hearing officer's denial of her motion for summary judgment, which, as noted above, alleges violations of state and federal law and regulation regarding the 2003 evaluation process.  The hearing officer denied petitioner's summary judgment motion because there was no agreement as to material facts regarding the sufficiency of the evaluations and no record to support a decision (Tr. p. 11; IHO Ex. V).  Summary disposition procedures have been used to decide Individuals with Disabilities Education Act (IDEA) claims that involve no disputed issues of fact (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 04-018).  The use of a summary judgment procedure is proper where the parties have had a meaningful opportunity to present evidence and the nonmoving party is unable to identify any genuine issue of material fact (J.D., 224 F.3d at 70).  The record includes petitioner's March 4, 2004 motion for summary judgment containing 54 exhibits and an explanation of her position with respect to the 2003 evaluation process which she presented at the March 8, 2004 prehearing conference (IHO Exs. V, XI).  At the prehearing conference, respondent disputed petitioner's claim that there was no dispute as to material facts (IHO Ex. V).  I agree with the hearing officer that material facts concerning the evaluations are in dispute because the sufficiency of those evaluations is at issue in this matter (Tr. p. 11).

 

            I also agree with the hearing officer that petitioner's challenge to the CPSE's 2002 declassification of her daughter was not raised in a timely manner.  Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, I have applied a one-year statute of limitations in light of recent case law requiring me to adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., 03-062).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioner knew or should have known of the injury involved, in this case her daughter's declassification (M.D., 334 F.3d at 221).  The record shows that petitioner knew of her daughter's declassification in 2002, but did not request an impartial hearing until March 2004, almost two years after the declassification.  Thus, her claim is untimely under the one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119).

 

            Having determined that petitioner's challenge to her daughter's 2002 declassification is barred by the statute of limitations, it is not necessary that I address her request that I take additional evidence concerning that issue.  As noted above, the record includes petitioner's March 4, 2004 motion for summary judgment which contains 54 exhibits and an explanation of her position with respect to her daughter's declassification (IHO Ex. XI).  The record also includes petitioner's March 15, 2004 response, with supporting documentation, to respondent's motion to dismiss her petition challenging the declassification (IHO Ex. XIII).

 

            Petitioner also challenges the hearing officer's determination that respondent demonstrated the appropriateness of its evaluations.  She challenges the validity and reliability of certain evaluations.  She also claims that that the manner in which certain tests were administered affected their validity and reliability, that the credibility of the evaluations are suspect because some of the reports were revised and because of the CSE Chairperson's involvement in the revisions of the reports.

 

            When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed.  An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b][1]).  Neither federal nor state regulations prescribe a particular set of tests which must be used in each evaluation (34 C.F.R. § 300.532; 8 NYCRR 200.1[aa]).

 

            A parent who disagrees with the CSE's evaluation has the right to obtain an independent evaluation at public expense, unless the school district institutes an impartial hearing and demonstrates that its evaluation of the child was appropriate (34 C.F.R. § 300.502; 8 NYCRR 200.5[g][1]).  If the hearing officer finds that the school district’s evaluation was appropriate, the parent may obtain an independent evaluation, but not at public expense.

 

            The record shows that petitioner referred her daughter to the CSE because of concerns regarding word retrieval, short-term memory and fine motor skills (Dist. Ex. 1).  As part of the evaluation process, several evaluations were conducted, including a psychological evaluation.  An individual psychological evaluation is defined as a process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations to study and describe a student's developmental, learning, behavioral and other personality characteristics (8 NYCRR 200.1[bb]).

 

            The school psychologist who conducted the psychological evaluation administered a number of tests including an intelligence test, a test to assess the child's memory skills, a test to assess the child's fine motor skills, as well as an anxiety assessment (Dist. Ex. 16).  The school psychologist who testified at the hearing indicated that he had been working for the school district as a school psychologist for 17 years and that conducting evaluations was a core part of his work (Tr. pp. 121, 124).  He testified that he did not conduct the evaluation, but that he had reviewed the report (Tr. p. 130).  He further testified that the tests that were administered were valid and had a long history (Tr. pp. 132, 141, 152-53).  He also testified that the psychological evaluation provided adequate information to determine if a disability was present and that it included diagnostic information as well as descriptive information regarding the child's strengths and weaknesses (Tr. pp. 153-54).  The psychologist opined that the evaluation was appropriate, that it addressed the issues identified in the referral and that no further testing was necessary (Tr. pp. 139, 154).

 

            The evaluator who conducted the educational evaluation testified that she initially administered the WIAT, but after petitioner expressed concerns that there was a more current version of the test, she administered the WJ-III (Tr. p. 269; Dist. Exs. 22, 24).  She indicated that the child scored in the average range on both tests (id.).

 

            The speech-language therapist testified that she had been evaluating students for 24 years (Tr. p. 76).  She indicated that prior to evaluating the child, she met with petitioner to discuss her concerns (Tr. p. 64).  She also obtained information about the child from the child's teacher, who reported that the child was a good student in the highest reading group (Tr. p. 63).  The speech-language therapist testified that in conducting the evaluation, she selected tests that specifically addressed word retrieval and auditory memory difficulties (Tr. p. 108).  She further testified that the TOLD-P:3 assesses both (id.).  She described the TOLD-P:3 as an overview of all of the different aspects of language (Tr. p. 69).  The speech-language therapist indicated that she had administered the TOLD-P:3 hundreds of times and found it to be a valid and reliable indicator of a child's performance in the areas tested (Tr. p. 70).  She further testified that she administered additional tests, including the TAPS (Tr. pp. 71-74).  She stated that the evaluation was appropriate in that it indicated whether a speech or language problem existed, the nature and severity of the problem, and the steps required to address the problem (Tr. pp. 77-78).  She testified that she did not need additional evaluations to determine the child's speech-language needs (Tr. p. 115).

 

            The occupational therapist testified that she received her degree in occupational therapy in 1974 (Tr. p. 158).  She further testified that the testing instrument she used was valid (Tr. p. 167) and that the evaluation she conducted was appropriate (Tr. p. 184).

 

            In addition to the psychological, educational, speech-language and occupational therapy evaluations, the CSE also arranged for a neurological and an audiological evaluation (Dist. Exs. 3, 4).  The CSE also obtained a social history from petitioner (Dist. Ex. 30) and respondent's staff conducted three observations of the child in her classroom (Dist. Exs. 25, 26).  Additionally, petitioner provided a May 2003 physical examination report to the CSE (Tr. p. 535; Dist. Ex. 5).

 

            The record shows that the child was assessed in all areas of her suspected disability.  The record also shows that the results of the evaluations were consistent in finding that the child had relative weaknesses in word retrieval and auditory memory.  The evaluation results also were consistent with the child's classroom performance (Tr. pp. 425-26).  Although petitioner questioned the manner in which certain evaluations had been performed, I find that there is no basis for concluding that those evaluations were inappropriately conducted or that the results of the evaluations are not reliable.  Similarly, petitioner's objection to some of the testing instruments used in the evaluations does not provide a basis for concluding that those evaluations were inappropriate or that the results of the evaluations are not reliable.  I note that the educational evaluator administered the WJ-III because of the parent's concerns about the WIAT.  The speech-language therapist also administered additional testing, after having initially evaluated the child using specific tests that assess auditory memory and word retrieval.  Further, I am not persuaded by petitioner's contention that revisions to the evaluation reports undermined their credibility.  The record shows that many of the revisions were made for clarification (Tr. pp. 90, 165, 267) or to report additional test results (Tr. pp. 91, 171, 267).  The initial evaluation included a variety of assessment tools and strategies, including information provided by petitioner, and was sufficiently comprehensive to determine whether petitioner's daughter was a child with a disability (34 C.F.R. § 300.532).  I find that respondent met its burden of demonstrating the appropriateness of its evaluations.

 

            Petitioner also claims that the CSE improperly determined that her daughter should not be classified.  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. 03-064; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

 

            Petitioner contends that the CSE applied a formula in determining that her daughter did not meet the criteria for classification as having a learning disability.

 

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).

 

            The record shows that the child's IQ scores were in the average range (Dist. Ex. 16), as were most of her scores on the other tests that were administered (Dist. Exs. 13, 24).  The child's teacher testified that the child was an average to above average student, in the top third of the class (Tr. pp. 425, 437).  She further testified that the child was an outstanding reader (Tr. p. 425).  She indicated that the child's writing ability was above average and that her math ability was average (id.).  The teacher testified that the child did not need additional services to benefit from her education (Tr. p. 448).  While the evaluators agree that the child had some difficulties with word retrieval and auditory memory, there is no evidence of a significant discrepancy between her ability and achievement which would support the classification of petitioner's daughter as having a learning disability.

 

          Petitioner further argues that the hearing officer erred in finding that her daughter was not communication impaired.  A communication impairment is not an enumerated classification under the IDEA.  However, a speech or language impairment includes a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance (8 NYCRR 200.1[zz][11]).  There is no evidence that the child has a communication disorder that adversely affects her educational performance to support a classification of speech or language impairment.  Based upon the information before me, I find that respondent met its burden of establishing the appropriateness of the CSE's recommendation that the child not be classified.

 

            I have considered petitioner's remaining contentions and find them to be without merit.

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

September 30, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER