The State Education Department
State Review Officer

No. 04-113







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 Fayetteville-Manlius Central School District



Nottingham, Engel & Kerr, LLP, attorney for petitioner, Richard L. Engel, Esq., of counsel


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for respondent, Susan T. Johns, Esq., of counsel





            Petitioner appeals from the decision of an impartial hearing officer which upheld the determination of respondent's Committee on Special Education (CSE) that petitionerís daughter should not be classified as a student with a disability.The impartial hearing officer also denied petitioner's request for reimbursement for educational services provided to his daughter during the 2003-04 school year.The appeal must be dismissed.


Petitionerís daughter was 11 years old and had completed the fifth grade at respondentís Eagle Hill Middle School (Eagle Hill) at the commencement of the impartial hearing in August 2004.The student has needs in the areas of pragmatic language, social skills and peer interrelationships, speech-language, and motor coordination (see Dist. Exs. 2, 8, 9, 10, 18, Parent Ex. M). Evaluations indicate that the studentís impairments are consistent with a pervasive developmental disorder not otherwise specified (PDD-NOS), a mixed receptive-expressive language disorder, and a developmental coordination disorder (Dist. Exs. 2 at p. 3, 18 at p. 4).††† The studentís eligibility for special education programs and services and petitionerís request for reimbursement for private speech-language and occupational therapy are the issues in dispute.


Petitionerís daughter had been enrolled in public schools outside of the State of New York for kindergarten, first, second, and third grades and part of the fourth grade (see Dist. Ex. 26; Sept. 13, 2004 Tr. pp. 287-96). Speech-language evaluations in February and March 1998 when the student was four years old indicated delays in expressive language and recommended speech-language therapy (Parent Ex. C at pp. 1-3, 4-6; Sept. 13, 2004 Tr. pp. 283-85, 286-87).The student participated in a social skills group during the 2000-01 school year when the student was in the second grade (Sept. 13, 2004 Tr. pp. 289-90). The student also received private tutoring after the end of the third grade and the beginning of the fourth grade (Sept. 13, 2004 Tr. pp. 292-94, 296).The studentís family moved to respondentís school district in January 2003 (Sept. 13, 2004 Tr. p. 293) and enrolled their daughter in a fourth grade class at respondentís Mott Road Elementary School (Mott Road) for the balance of the 2002-03 school year (Aug. 13, 2004 Tr. p. 32; Dist. Ex. 9 at p. 1).Petitioner provided his daughter with private tutoring in academic reading from February 10, 2003 through May 17, 2003 and in math from February 10, 2003 through June 14, 2003 (Parent Ex. E; Sept. 13, 2004 Tr. p. 297).Respondent provided the student with remedial reading support as part of its fourth grade regular education program at Mott Road (Aug. 13, 2004 Tr. p. 32).At respondentís request, the student attended summer school for reading and math at the end of the 2002-03 school year (Sept. 13, 2004 Tr. p. 298).


At petitionerís request, a private neuropsychologist evaluated the student in July 2003 and prepared a neuropsychological evaluation (Dist. Ex. 2).Based on a behavioral observation, parental report, record of review, and other information, the evaluator reported that the student was best characterized by a Diagnostic and Statistical Manual of Mental DisordersĖFourth Edition (DSM-IV) diagnosis of PDD-NOS (Dist. Ex. 2 at p. 3).He also reported that the studentís disorder was associated with considerable anxiety and with an attention deficit state (id.).He concluded that the student also evidenced a mild to moderate coordination disorder and a mild to moderate expressive language disorder (Dist. Ex. 2 at p. 4).Administration of the Wechsler Intelligence Scale for Children-Revised Edition (WISC-R) yielded a verbal IQ score of 96, a performance IQ score of 71, and a full scale IQ score of 82 (Dist. Ex. 2 at p. 6).The evaluator reported that the studentís IQ scores were confounded by her motoric/praxic, language, and attentional dysfunction and should not be considered valid indicators of her intellectual potential and concluded that her IQ scores were generally concordant with previous cognitive testing which had yielded a verbal standard score of 93 and a nonverbal standard score of 86 on the Cognitive Abilities Test (id.).The neuropsychologist also administered the Wide Range Achievement Test (WRAT) and reported subtest scores of 123 for reading, 111 for spelling, and 96 for arithmetic (id.).The neuropsychologist recommended that the student be ďeducationally classifiedĒ as multiply disabled (Dist. Ex. 2 at p. 7).In addition, he recommended, inter alia, that petitionerís daughter receive 12-month daily individual instruction in occupational therapy, physical therapy, and speech therapy (Dist. Ex. 2 at pp. 7-13). He outlined a detailed training program, exercises and supportive group experiences to increase her socialization skills and to foster peer acceptance, instruction to facilitate the development of arithmetic computation and reading comprehension skills, and that that she continue to be ďmainstreamedĒ (id.).

Petitionerís daughter moved from Mott Road to Eagle Hill for the 2003-04 school year when she began the fifth grade (Sept. 13, 2004 Tr. pp. 9-10, 154; see also Dist. Ex. 6).Thereafter, petitioner provided respondent with a copy of the neuropsychological evaluation (Aug. 13, 2004 Tr. p. 131, Sept. 13, 2004 Tr. p. 299).Respondentís pupil personnel services team met on December 2, 2003, to discuss the student (Aug. 13, 2004 Tr. pp. 130-31, Sept. 13, 2004 Tr. pp. 299-300).Because of concerns from the studentís classroom teacher regarding the studentís ability to interact appropriately with her peers, the pupil personnel services team recommended at its December 2, 2003, meeting that the student be included in a five to six week long social skills group to improve her social interaction with her peers (Aug. 13, 2004 Tr. pp. 133-34).At the meeting, petitioner requested that his daughter be referred to respondentís CSE (Aug. 13, 2004 Tr. pp. 131-32).Prior to the December meeting, respondent had arranged for the studentís fifth grade program to include remedial reading support on a daily push-in basis from a reading specialist as well as individual push-in and group pull-out remedial math support (Aug. 13, 2004 Tr. pp. 132-33, Sept. 13, 2004 Tr. pp. 12-14, 131, 159-61).Respondent provided these services as part of its academic intervention services program (Aug. 13, 2004 Tr. pp. 104, 106; see 8 NYCRR 100.1[g]).On January 6, 2004, respondentís CSE met to consider whether petitionerís daughter should be classified as a student with a disability (Dist. Ex. 7).At about this time, respondent encouraged petitionerís daughter to become involved in clubs and associations to assist in the development of her social skills (Sept. 13, 2004 Tr. pp. 15, 138, 161).


††††††††††† In response to petitionerís referral of his daughter to the CSE, respondent proceeded with an individual evaluation of the student to determine whether she was a student with a disability (see 8 NYCRR 200.4[b][1]) (Dist. Ex. 8).As part of that evaluation, respondentís speech-language pathologist evaluated petitionerís daughter in December 2003 and prepared a report in January 2004 (id.).The evaluator reported that the student experienced difficulty in interacting with peers during structured and unstructured group activities in class (Dist. Ex. 8 at p. 2).She administered the Clinical Evaluation of Language FundamentalsĖ4 (CELF-IV), a test of language skills, and the Test of Pragmatic Language (TOPL), a test to assess the use of social language(Dist. Ex. 8 at pp. 1, 2).The studentís composite score results on the CELF-IV included standard scores of 92 (30th percentile) in the Language Content Index, 85 (16th percentile) in the Expressive Language Index, 83 (13th percentile) in the Receptive Language Index, 79 (8th percentile) in the Core Language Index, and 72 (third percentile) in the Language Memory Index (Dist. Ex. 8 at p. 1).The speech-language pathologist reported that the studentís overall language score fell in the mildly delayed range in both receptive and expressive language areas and that she had more moderate delays in language memory and grammar skills (id.).Based on an analysis of the studentís CELF-IV subtest scores of 65 (first percentile) in concepts and following directions and 70 (second percentile) in sentence assembly, the evaluator concluded that the student exhibited significant difficulty with language tasks that involved short term auditory memory skills, language concepts, and grammar (id.).The student received a score of 106 on the CELF-IV Pragmatics Profile rating scale, which was completed by one of the studentís teachers (Sept. 13, 2004 Tr. pp. 177, 193-96; Dist. Ex. 8 at p. 2, Parent Ex. M).†† The score was below the criterion score of 136 for her age and indicated that the studentís communication abilities in conversational contexts were inadequate (Dist. Ex. 8 at p. 2, Parent Ex. M).The student achieved a standard score of 81 (10th percentile) on the TOPL, which indicated a mild delay in social language skills (id.).The evaluator recommended speech-language therapy to address the studentís language deficits (id.).


Respondentís school psychologist conducted a psychological examination in January 2004 (Dist. Ex. 9).The psychological report indicated that according to her teachers, the student worked hard and was doing well academically (Dist. Ex. 9 at p. 1).The report also indicated that the studentís teachers had expressed concern regarding the appropriateness of her interactions with peers, that "she continues to struggle with peer relationships," and that that had improved since the beginning of the year (Dist. Ex. 9 at p. 2).The school psychologist reported that the student tended to have difficulty following verbal directions and experienced some difficulty in applying learned facts and concepts to practice (id.).She also reported that the studentís parents indicated that she was anxious and worried about bringing poor grades home and that on occasion the student had been found to be cheating on tests and assignments (id.).


The school psychologist administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) (Dist. Ex. 9 at p. 4).This test yielded a processing speed index score of 103 (58th percentile), a verbal comprehension index score of 95 (37th percentile), a working memory index score of 94 (34th percentile), a perceptual reasoning index score of 92 (30th percentile), and a full scale IQ score of 93 (32nd percentile) (id.).The studentís score on the block design subtest of the WISC-IV indicated a relative weakness in the ability to analyze and synthesize abstract visual stimuli, nonverbal concept formation, visual perception, and organization, simultaneous processing, visual-motor coordination, and the ability to separate figure and ground in visual stimuli (id.).Her score on the digit span subtest, which measures attention, concentration, immediate auditory memory, auditory attention, and behavior in learning situations, was also relatively low (id.).As part of respondentís psychological evaluation, a special education teacher administered the Wechsler Individual Achievement Test-Second Edition (WIAT-II) (Dist. Ex. 2 at p. 5).The studentís scores on this achievement test showed performance within the low average to high average range in all academic areas (Dist. Ex. 2 at pp. 5-6).Although the studentís achievement test scores showed a relative weakness in reading comprehension and listening comprehension(both at the 16th percentile), based on a comparison of the studentís achievement test scores with her performance on the WISC-IV, the evaluator concluded that her scores did not reflect a significant discrepancy between her cognitive ability in the areas of reading, mathematics, written language and listening comprehension (Dist. Ex. 2 at p. 6).The school psychologist also concluded that petitionerís daughter did not at the present time show evidence of a specific learning disability (Dist. Ex. 2 at p. 7).†† Based on the results of the speech-language evaluation, the school psychologist recommended speech-language therapy (id.).The evaluator also recommended that the student be included in a social skills group to further support and develop positive peer interactions and social skills and that the student continue to receive supplemental regular education reading and math support(id.).


††††††††††† In January 2004, respondentís occupational therapist completed an evaluation of the student (Dist. Ex. 10).The evaluator administered subtests of the Bruininks-Osertsky Test of Motor Proficiency (BOT), the Berry Developmental Test of Visual Motor Integration (VMI), and the Test of Visual Perceptual Skills (TVPS) (Dist. Ex. 10 at p. 2).She advised that test results demonstrated delays with fine motor tasks, visual motor integration, and visual perceptual skills (Dist. Ex. 10 at p. 3).The evaluator noted that the individual test results indicated problems with motor planning, visual perceptual delays in design copying and block replication tasks, and that the student continued to have difficulty with the concept of left and right (id.).With respect to school activities, the occupational therapist wrote that the student was able to keep up in class at this time, that her written work was legible and neat, that the studentís instrumental music teacher at school reported that her skills in that area were below grade level and that she required additional time to set up for class and remember the time of her lessons, and that her physical education teacher reported that the studentís skills were in the average range (Dist. Ex. 10 at pp. 2, 3).The evaluator also noted that the studentís teachers indicated that she was doing well at school academically, that they had concerns regarding social peer interactions and that they had also reported improvement in this area (Dist. Ex. 10 at pp. 1, 3).She recommended: occupational therapy services be discussed at the CSE meeting; the student receive additional time for small motor tasks, especially those involving bilaterally skills; spatial concepts be reinforced during the completion of academic tasks; and that repetition of directions and visual modeling be given when the student is to complete multistep or more challenging tasks (Dist. Ex. 10 at p. 3).


Respondentís CSE met on January 23, 2004 (Dist. Exs. 12, 13).CSE members included respondentís assistant superintendent for special services, who was the CSE Chairperson, the school psychologist, occupational therapist and speech-language therapist who had conducted the studentís evaluations, and petitioner (see Dist. Exs. 12 at p. 1, 8, 9, 10; Aug. 13, 2004 Tr. pp. 28, 34, Sept. 13, 2004 Tr. p. 108).Both the regular education teacher and the special education teacher members were familiar with the student (id.)The regular education teacher was the studentís fifth grade homeroom teacher and also her teacher for Mathematics, Reading, Language Arts and Social Studies (Dist. Ex. 12; Sept. 13, 2004 Tr. pp. 9-10).The special education teacher had administered the WIAT-II as part of the studentís psychological evaluation (see Dist. Ex. 12; Aug. 13, 2004 Tr. pp. 144-45).


The individual evaluators presented their evaluations at the CSE meeting (Dist. Ex. 12; Aug. 13, 2004 Tr. pp. 35-36) which were discussed by the CSE (id.).The CSE also discussed the private evaluation that had been prepared by the neuropsychologist in 2003 (id.).The student's primary teacher for academics reported at the CSE meeting that the studentís teachers did not have any academic concerns regarding the student and that her grades included an A in Language Arts, a B- in Social Studies, a C in Mathematics and were in the B range in Science (Dist. Ex. 12 at p. 2; see also Aug. 13, 2004 Tr. p. 41). She indicated that the math grade was the result of a single low test score and was expected to improve (Dist. Ex. 12 at p. 2).The studentís teacher also indicated that in class petitionerís daughter was a hard worker, attentive, participated in class, had very good handwriting, and was "a helper" (Aug. 13, 2004 Tr. p. 41).She reported that the student had "some issues dealing with other students" but that she did not believe this required special education because petitionerís daughter was doing well and benefiting from the remedial reading and remedial math services that respondent was providing (Aug. 13, 2004 Tr. pp. 41-42).


The CSE did not dispute the private neuropsychologistís conclusion that the student was appropriately characterized as having PDD-NOS (Aug. 13, 2004 Tr. p. 39).The CSE Chairperson and other CSE members believed that petitionerís daughter should not be classified as a student with a disability because they believed she was succeeding in the regular classroom environment (Aug. 13, 2004 Tr. pp. 37, 38, 39; see also Dist. Ex. 12 at p. 2).Petitioner believed that the CSE should classify his daughter as multiply disabled and recommend individual speech-language therapy five times a week (Dist. Ex. 12 at p. 2; Sept. 13, 2004 Tr. pp. 302-03).


Because of the private neuropsychologist's report that the student be classified, petitionerís concurrence, and the differing conclusions between the private neuropsychological report and respondentís own evaluations, the CSE deferred any decision on whether to classify the student and agreed to an independent evaluation of the student at its expense (Dist. Exs. 12 at p. 2, 15; Aug. 13, 2004 Tr. pp. 43, 88, Sept. 13, 2004 Tr. pp. 301-302).The CSE also recommended that the student receive group speech-language therapy twice a week as an educationally related support service (ERSS) (Dist. Exs. 12 at p. 2, 13; 15; Aug. 13, 2004 Tr. p. 42).Although not included as part of the minutes, the CSE agreed that the student should continue to receive remedial math and reading services and also participate in the social skills group recommended at the pupil personnel services teamís December 2003 meeting (Aug. 13, 2004 Tr. p. 149, Sept. 13, 2004 Tr. p. 301).On February 6, 2004, petitioner verbally advised the CSE Chairperson and handed her a letter requesting an impartial hearing (Sept. 13, 2004 Tr. pp. 307, 317, 324-26; see Parent Ex. Q).The letter stated that petitioner did not believe that the services recommended for his daughter were adequate, that he was arranging private speech and occupational therapy for her, and that he would pursue reimbursement for those expenses during the impartial hearing (Parent Ex. Q).The CSE Chairperson advised petitioner that the CSE had not yet made a decision and that his request was premature at which time she returned the letter to petitioner (Sept. 13, 2004 Tr. pp. 317, 324-26). Petitioner provided his daughter with private speech-language therapy and occupational therapy during part of the 2003-04 school year (Sept. 13, 2004 Tr. pp. 305, 321).


A licensed psychologist conducted an independent evaluation of the student (Dist. Ex. 18) subsequent to the January 23, 2004 CSE meeting.The psychologist reviewed information regarding the student which was provided by respondent, met with school personnel including the school psychologist, the studentís teacher who had attended the January CSE meeting, conducted a classroom observation of the student, and met with petitioner as well as his daughter (Sept. 13, 2004 Tr. pp. 28-29).He did not conduct any additional testing and did not believe that any was necessary (Sept. 13, 2004 Tr. p. 29).The psychologist concluded that there were a number of similarities between respondent's evaluations and the private neuropsychological evaluation (Dist. Ex. 18 at p. 1).He found general agreement that petitionerís daughter had a developmental coordination disorder, an expressive/receptive language disorder, and that she struggled in socio-emotional functioning (Dist. Ex. 18 at p. 2).Based on this, he felt there should be no disagreement that petitionerís daughter had characteristics consistent with a diagnosis of PDD (id.).Given the results of the WISC-IV and the WIAT-II, he found it accurate to conclude that that the student did not have a specific learning disorder (Dist. Ex. 18 at p. 3).He also concluded, however, that there was "clear and consistent evidence of Ďunspecifiedí learning disorders" in the occupational therapy, speech-language and private neuropsychological evaluations (id.).He indicated that these were "not synthesized" into the CSEís findings but did not explain what he meant (id.).The psychologist indicated that as well as being consistent with a diagnosis of PDD, the studentís deficits were also consistent with a nonverbal learning disorder and concluded that the various evaluations supported a DSM-IV diagnosis of mixed receptive-expressive language disorder, developmental coordination disorder, and PDD-NOS, mild (Dist. Ex. 18 at pp. 3, 4).He acknowledged the studentís "high grades" and recommended that the CSE determine the student eligible for special education (id.).He also concluded that the studentís neurocongitive delays required speech-language therapy, occupational therapy, and intervention to address her social-emotional functioning and recommended that those services be provided (id.). He recommended that the CSE consider increasing the speech and language therapy to five times a week, at least to the end of the year, and that she be reevaluated at the beginning of the next school year (id.).


Respondentís CSE met again on May 7, 2004 (Dist. Exs. 19, 20 at p. 1, 21 at p. 1).Respondentís assistant superintendent for special services chaired the meeting (Aug. 13, 2004 Tr. p. 48).CSE members again included the studentís teacher, respondent staff who had conducted and prepared the studentís evaluations, the school psychologist as well as petitioner (Dist. Ex. 20 at p. 1; Aug. 13, 2004 Tr. pp. 48, 108).The CSE reviewed the independent psychological evaluation (Aug. 13, 2004 Tr. pp. 52, 53-54, 152; Dist. Ex. 20 at pp. 7, 8).It also heard reports from the teacher, the studentís speech-language therapist, as well as the counselor who provided the student with group social skills instruction (Aug. 13, 2004 Tr. pp. 51-52).The studentís regular education teacher reported that petitioner's daughter continued to perform well in class, that she was compensating for her weaknesses, that she asked for help and directions when necessary, that she was carrying over into the classroom strategies from her speech-language program, and that her pragmatic language had improved (Dist. Ex. 20 at pp. 1-2, 4, 7).Her teacher also reported that the student was getting along better with her peers and that she did not stand out from other students in the class (Dist. Ex. 20 at pp. 2, 4, 7).The studentís speech therapist reported that petitionerís daughter worked hard on her weaknesses and also on strategies to improve her pragmatic language and interactions with her peers (Dist. Ex. 20 at pp. 2, 7).The counselor reported that the student was practicing the skills that she was being taught and that she was incorporating them into her behavior (id.).


The CSE concluded that the studentís condition was not impacting her educational performance and determined not to classify her as a student with a disability (Aug. 13, 2004 Tr. p. 55).However, it recommended that the studentís 30-minute twice a week ERSS speech-language therapy continue and that she be provided with ERSS counseling services once a week for 30 minutes (Dist. Ex. 21 at p. 1; see N.Y. Educ. Law ß 3602[32]; 8 NYCRR 100.1[p] and [r]). It also recommended that her teachers be provided with occupational therapy consultant teacher services once a month (id.).It further recommended that the studentís remedial math and remedial reading program continue (id.). Petitioner agreed to allow the provision of the recommended services but indicated at the meeting that he would "explore his options" (Dist. Ex. 20 at p. 6).


Petitioner requested an impartial hearing by notice dated May 22, 2004 (Dist. Ex. 27).The notice stated petitionerís disagreement with respondentís determination not to classify his daughter as a student with a disability (id.).It requested that the student be classified as eligible for special education and that she receive appropriate services (id.). As indicated above, subsequent to the January 23, 2004, CSE meeting, petitioner had also advised respondent that he disagreed with the decision at that CSE meeting not to classify the student, and that he was requesting an impartial hearing, arranging for occupational and speech-language therapy for his daughter, and wished reimbursement for those services.


The impartial hearing commenced on August 13, 2004, and concluded on September 13, 2004.The impartial hearing officer rendered a decision dated November 29, 2004.He concluded that respondent had met its burden of establishing the appropriateness of its decision that petitionerís daughter not be classified as a student with a disability (IHO Decision, p. 9). He concluded that the federal and state regulations require that a student with a disability have a condition or impairment such that the student "need(s)" or "require(s)" special education and that respondent had shown that petitionerís daughter did not have such a condition (IHO Decision, p. 6).The impartial hearing officer noted the following:the student had received grades of mostly Aís and Bís during the 2003-04 school year; her teachers had no academic concerns about her; observations of the student indicated that she was involved, focused, and appropriately participating in class; she asked for directions and clarifications when needed and had developed compensatory skills; that the student was very organized in class, did not require "excessive" interventions, and that her teacherperceived her in class as "normal with all others" (id.).Because of evidence that the student may face increased difficulty with her educational performance in the future, the impartial hearing officer reviewed the eligibility criteria for specific learning disabilities, autism, and multiply disabled.He concluded that the evidence did not show that the student met the criteria for learning disability, autism, or multiply disabled classifications (IHO Decision, pp. 6-8).


Petitioner appeals.He contends that his daughterís condition meets the definition of autism, a learning disability, or a multiple disability, that she should be classified as a student with a disability because of her educational needs, and that he should receive reimbursement for his expenditures for speech-language and occupational therapy.Respondent argues that the impartial hearing officer correctly determined that petitionerís daughter was not a student with a disability.It also argues that in any event there is no basis for an award of reimbursement for services provided by petitioner because petitioner did not show at the impartial hearing that the provided services were appropriate, petitioner did not give notice required by the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ßß 1400-1451 [1997]) that it would seek reimbursement for services, and because petitionerís reimbursement claim was not included in his request for an impartial hearing.


Congress enacted the IDEA (20 U.S.C. ßß 1400-1451 [1997]) to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet the students' unique needs (20 U.S.C. ß 1400(d)(1)(A) [1997]). A child with a disability is a student who has been evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services (see 34 C.F.R. ß 300.7[a] [1]; see also 8 NYCRR 200.1[zz]).In order to be classified as a child with a disability, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a studentís educational performance to the extent that he or she requires special services and programs, as provided for in federal (34 C.F.R. ß 300.7[a][1]) and state (8 NYCRR 200.1[zz]) regulations (Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; 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).


It is well settled that a board of education bears the burden of establishing the appropriateness of its CSE's recommendation that a student not be classified as a student with a disability (Application of the Bd. of Educ., Appeal No. 04-042; Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child Suspected of Having a Disability, Appeal No. 00-001).

I concur with the decision of the impartial hearing officer that the CSE properly determined not to classify petitionerís daughter as a student with a disability for purposes of receiving special education services.


I first note that respondent does not dispute that petitionerís daughter has an impairment and that it does not object to the private neuropsychologist's conclusion that she exhibited characteristics of PDD-NOS (Aug. 13, 2004 Tr. pp. 39, 84).However, the record in this case also shows that the studentís impairment does not rise to the level where it adversely affects her educational performance to the extent that she required special education programs and services.Her teacher reported to the CSE and testified that petitionerís daughter did well in class and her marking period grades showed that she was learning the content area material presented in her classes (Aug. 13, 2004 Tr. pp. 137-38, Sept. 13, 2004 Tr. pp. 11-12; Dist. Exs. 12 at p. 2, 20 at p. 7; see also Aug. 13, 2004 Tr. p. 55; Dist. Ex. 24).†† The record does not reflect that academic concerns were expressed by teachers (Dist. Ex. 12 at p. 2). The record consistently reflects that the student did well in school (Dist. Exs. 6, 9 at pp. 1-2, 10 at pp. 3, 11, 20 at pp. 7, 24).The studentís scores in the WRAT and the WIAT-II, which were all at least in the average range, were consistent with her cognitive ability and marking period grades (Dist. Exs. 2 at p. 6, 9 at pp. 5-6; Aug. 13, 2004 Tr. pp. 116-18).The studentís teacher reported that she actively participated in her classes (Aug. 13, 2004 Tr. pp. 41, 54).Observations from other respondent staff-members were also positive and indicated that she was involved, participated, and focused in class (Dist. Ex. 9 at pp. 2-3; Aug. 13, 2004 Tr. pp. 57, 135-36, 150).Because of her impairment, at times she had difficulty with understanding directions (Dist. Ex. 9 at p. 2; Sept. 13, 2004 Tr. pp. 17, 156).However, she was able to recognize when this occurred, to then advocate for herself to seek out appropriate clarification -- and her teacher encouraged the utilization of such a compensatory mechanism (Aug. 13, 2004 Tr. pp. 57, 112, 138, Sept. 13, 2004 Tr. pp. 17-18, 156, 176, 202).Although she had some anxiety with respect to educational achievement (Dist. Exs. 2 at p. 3, 9 at p. 2), she did not have difficulty attending in class (Sept. 13, 2004 Tr. p. 20) and her teacher described her in class as generally diligent, hardworking, conscientious, and friendly (Sept. 13, 2004 Tr. pp. 10-11).


There is no dispute that as a result of her impairment, the student has difficulty with pragmatic language and social communication skills, peer interaction and interpersonal relationships with other students or that this has concerned her teachers (see Dist. Exs. 1 at p. 2, 2 at p. 3, 8 at p. 2, 9 at p. 2, 10 at p. 1, 12 at p. 1; Parent Ex. M; Aug. 13, 2004 Tr. pp. 41-42, 52-53, 105, 133-34, 138, 210, Sept. 13, 2004 Tr. pp. 15, 18, 36-39, 137, 138, 139, 149, 150, 151-53, 158-59, 162, 164, 178, 180, 193-96, 210, 220).However, the record does not show that she is unable to effectively communicate with her peers or that she has significant difficulty doing so.There is no showing that this area of deficit has caused disruption to the classroom environment or that she has had difficulty or problems with her relationships and social communication skills with her teachers (Sept. 13, 2004 Tr. pp. 16, 24, 151, 152, 153).Respondent has and is addressing this deficit by encouraging the student to become involved with her peers by joining clubs and associations (Sept. 13, 2004 Tr. pp. 15, 138, 161), by providing the student with a group social skills programs, speech improvement services, and counseling (Dist. Exs. 12 at p. 2, 13, 15, 17, 20 at pp. 1, 4, 6, 7, 21 at p. 1; Aug. 13, 2004 Tr. pp. 51-52, 133-34, 169, Sept. 13, 2004 Tr. pp. 15, 138, 161, 184, 187).Respondent has provided speech improvement and counseling programs through its ERSS program (Dist. Exs. 12 at p. 2, 13, 20 at p. 1, 21 at p. 1, Aug. 13, 2004 Tr. pp. 42, 106, 149; see N.Y. Educ. Law ß 3602[32]; 8 NYCRR 100.1[p] and [r]) and those services have had positive impacts on the effects of the studentís impairment (Sept. 13, 2004 Tr. pp. 148, 185-86, 201-202).The studentís teachers report that she has shown improvement in social communication and peer interaction from the beginning of the school year (Dist. Exs. 9 at p. 2, 10 at pp. 1, 3, 20 at pp. 2, 7).Her speech-language therapist and her regular education teacher for a number of subject area classes report that the student has worked on her verbal and non-verbal communication skills during speech therapy and that she is incorporating learned improvement strategies and techniques from her therapy into her regular education classes (Dist. Ex. 20 at pp. 2, 7; Sept. 13, 2004 Tr. pp. 155-56).I note also that the speech-language therapy and the regular education teachers have consulted and worked together on this process (Sept. 13, 2004 Tr. pp. 155-56).


To address relative subject area weaknesses identified by the studentís performance in the New York State English Language Arts and Mathematics examinations (see Dist. Ex. 23), respondent has also provided the student with support in the form of remedial reading and remedial math as an academic intervention service (Dist. Exs. 20 at p. 46, 21 at p. 1; Aug. 13, 2004 Tr. pp. 32, 104, 106, 132-33, 168-69, Sept. 13, 2004 Tr. pp. 12, 13-14, 18-19, 159-61; see 8 NYCRR 100.1[g]). As the CSE discussed, except for some delay in instrumental music, the studentís delays with fine motor tasks, visual motor integration, and visual perceptual skills have not affected her ability to keep up in class, her handwriting, nor her participation in physical education (Dist.Ex. 10 at pp. 1, 2; Aug. 13, 2004 Tr. pp. 91-92, 184-85, 187, Sept. 13, 2004 Tr. pp. 16-17, 141). However, because of her weakness in this area, respondentís CSE recommended that an occupational therapist consult with her regular education teachers once a month (Dist. Ex. 21 at p. 1).


I also note that there is nothing on the face of the record to suggest that the recommended services provided to petitionerís daughter constitute specially designed instruction and/or related services necessary for her to benefit from instruction or that the studentís impairment affects her educational performance to the extent that she requires special education services and programs.Finally, while the impartial hearing officer considered testimony that the studentís condition might in the future require special education programs and services, he was correct in focusing on the studentís present needs rather than on speculation about her future success.A decision to classify a student as a child with a disability must be based on the studentís present needs and not on speculation about his or her future success (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child with a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Handicapping Condition, 24 Ed. Dept. Rep. 3).


For the reasons set out above, I concur with the impartial hearing officer that the studentís condition does not rise to the level where it adversely affects her educational performance to the extent that she requires special education programs and services.Having reached this conclusion, it is not necessary that I address the specific classifications of autism, learning disabled, and multiply disabled requested by petitioner (Application of a Child Suspected of Having a Disability, Appeal No. 99-020).I find that respondent has met its burden of establishing the appropriateness of its CSEís recommendation that the student not be classified as a student with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-001; see also Application of a Child with a Disability, Appeal No. 97-051).


Finally, in light of my finding that petitionerís daughter not be classified as a student with a disability, I do not reach petitionerís request for reimbursement of the costs of speech-language and occupational therapy provided to his daughter (Application of a Child with a Disability, Appeal No. 02-040).










Albany, New York




February 10, 2005