The State Education Department
State Review Officer

 

No. 05-047

 

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pawling Central School District

 

 

 

Appearances:
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

 

Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent demonstrated the appropriateness of its Committee on Special Education's (CSE) recommendation that petitioners' daughter not be classified as a student with a disability and which denied petitioners' request to be reimbursed for their daughter's tuition costs at Oakwood Friends School (Oakwood) for the 2003-04 school year.  In his decision, the impartial hearing officer indicated that had he found that the CSE's recommendation was not appropriate, he would have found that Oakwood was appropriate, and that equitable considerations supported petitioners' reimbursement claim.  Respondent cross-appeals from the impartial hearing officer's consideration of the appropriateness of Oakwood and of the equities.  The appeal must be dismissed.  The cross-appeal must be dismissed.

            Preliminarily, I will address a procedural matter.  Respondent asserts that the petition fails to indicate the reasons for challenging the impartial hearing officer's decision and fails to identify the findings, conclusions and orders to which exceptions are taken in violation of 8 NYCRR 279.4(a).  I have reviewed the petition, and I find that it indicates petitioners' reasons for challenging the impartial hearing officer's decision, identifying the findings and conclusions which they claim should be annulled.

            The student was 11 years old and in the sixth grade at Oakwood when the hearing began in October 2003.  Oakwood has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.

            The student began attending school in respondent's district for kindergarten during the 1997-98 school year (Tr. p. 183).  In first grade, she qualified for remedial reading services (Dist. Ex. 18).  In second grade during the 1999-2000 school year, although the student did not qualify for remedial reading services, she was in a supported reading group (id.).  Also during second grade, the student began receiving private tutoring services (Tr. p. 193).  On the Multiple Assessment Series for the Primary Grades administered toward the end of second grade, the student scored in the middle level (51-89 percent) in total reading (64 percent correct), total math (59 percent correct) and total writing (75 percent correct) (Dist. Ex. 11B).

            Petitioners arranged for a private psychological evaluation of their daughter at the Soifer Center for Learning & Child Development (Soifer Center) in April 2000 (Dist. Ex. 15).  The evaluator noted that the student was able to work for several hours at a time with "perseverance and good frustration tolerance" (Dist. Ex. 15 at p. 4).  Administration of the Wechsler Intelligence Scale for Children–Third Edition (WISC-III) yielded a verbal IQ score of 84 (14th percentile), a performance IQ score of 90 (25th percentile) and a full scale IQ score of 86 (18th percentile), indicating intellectual functioning in the low average range (Dist. Ex. 15 at pp. 4, 10).  On the Wechsler Individual Achievement Test (WIAT), the student achieved standard (and percentile) scores of 100 (50) in basic reading, 101 (53) in numerical operations, 105 (63) in math reasoning, and 98 (45) in spelling (Dist. Ex. 15 at p. 11).  The evaluator reported that the child had difficulty offering succinct responses to questions, that she exhibited auditory memory, word retrieval and speech sound discrimination weaknesses, and that she was weak at highlighting salient themes (Dist. Ex. 15 at pp. 4, 8).

            The evaluator opined that the student "is struggling academically because she thinks concretely and flounders when the work becomes conceptually complex" (Dist. Ex. 15 at p. 4, Dist. Ex. 21).  The evaluator indicated that the student had difficulties with language, and suggested that the student was likely to experience academic difficulties as the linguistic and conceptual demands of school increased (Dist. Ex. 15 at p. 6).  She noted that the student's language vulnerabilities "do not constitute a learning disability, but are consistent with [the student's] intellectual level" (Dist. Ex. 15 at p. 6).  The evaluator also noted that the student was able to work on tasks for long periods of time and maintain her focus and concentration (Dist. Ex. 15 at p. 7).  She found no indications of a primary attention disorder, but noted that it was difficult for the student to work with several strands of information simultaneously and indicated that the student performed best when input was simply presented (Dist. Ex. 15 at p. 7).  The evaluator's recommendations included private tutoring to assist with reading comprehension and critical thinking, and an audiological evaluation to assess speech reception and speech sound discrimination (Dist. Ex. 15 at p. 9). 

            Petitioners also arranged for an audiologial evaluation of their daughter (Dist. Ex. 20; Tr. p. 189).  Although the record shows that the audiological evaluation was provided to the principal of Pawling Elementary School in July 2000, it is not part of the record in this appeal (Dist. Ex. 20).

            During the 2000-01 school year, when the student was in the third grade, she received remedial reading and remedial math (Dist. Ex. 23).  Additionally, she continued to receive private tutoring services (Tr. p. 193).  On the final report card for third grade, the student achieved grades of C- in Language Arts and Mathematics, C in Science and Spelling, C+ in Reading and B+ in Social Studies (Dist. Ex. 14C).

            The student continued to attend school in respondent's district for fourth grade during the 2001-02 school year where she received in-class reading support (Dist. Ex. 13).  Additionally, she continued to receive private tutoring services (Tr. pp. 195-96).  In February 2002, the student achieved a score of 634 on the New York Statewide Testing Program (NYSTP) English Language Arts examination, placing her at performance level 2 in the examination's scoring system (Dist. Ex. 10).  Her score of 639 on the NYSTP Mathematics examination administered in May 2002 placed her at performance level 3 (id.).

            On May 30, 2002, an accommodation plan was developed for the student pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l] [1998]) to address concerns regarding the student's tendency to rush through tests and need for comprehension clarity (Joint Ex. 13).  Accommodations included preferential seating, a separate location as needed, extended time as determined by the teacher, and directions explained and clarified and understanding checked.  The accommodation plan, which the student's mother requested at the suggestion of the student's private tutor (Tr. p. 297), did not specify a disability (Joint Ex. 13).

            In a June 2002 reading report, the student's reading teacher indicated that the student received in-class reading support four times per week focusing on oral fluency, vocabulary and comprehension (Dist. Ex. 13).  She described the student's oral reading as "quite good."  She indicated that the student demonstrated improvement in mastering definitions for new vocabulary words and that comprehension of material incorporating the new vocabulary required teacher support.  She further indicated that the student needed to work on interpreting and drawing inferences.

            The student's fourth grade fourth quarter report card indicated that she achieved a D in Social Studies, C- in Science, C in Mathematics, C+ in English and in Reading, B in Spelling and Physical Education, B+ in Music, A- in Art and Library, and an A in Computer (Dist. Ex. 14B).

            At the end of the student's fourth grade year in June 2002, the Soifer Center conducted a psychological evaluation of the student (Dist. Ex. 25).  A readministration of the WISC-III yielded a verbal IQ score of 93 (32nd percentile), a performance IQ score of 94 (34th percentile) and a full scale IQ score of 93 (32nd percentile) which the evaluator noted was at the "lower end" of the average range of intellectual functioning.  The evaluator reported that, during testing, the student was "deliberate in her work, planned her problem solving approach, and was neither distractible nor impulsive."  She indicated that the student sometimes experienced word retrieval difficulty.  She further indicated that the student's vocabulary was weak and that she continued to have difficulty with higher level thinking and reasoning, identifying salient themes, and providing succinct answers to questions.  The evaluator noted that the student appeared to benefit from private tutoring and recommended that she continue to work with her tutor.  She opined that the student would benefit from a summer program.  She indicated that interventions should help the student expand her vocabulary and help her with "highlighting essential themes in reading and writing."  The evaluator also recommended that the student's section 504 accommodations and other school-based supports be maintained.

            During summer 2002, after she had completed fourth grade, the student attended Dunnabeck, a summer educational program at the Kildonan School in Amenia, New York (Dist. Ex. 26).  Administration of the Wide Range Achievement Test–3 (WRAT-3) at Dunnabeck in August 2002 yielded standard (and percentile) scores of 99 (47) in reading, 104 (61) in spelling, and 112 (79) in arithmetic.  On the Gray Oral Reading Tests-Fourth Edition (GORT-4), the student achieved grade equivalent (and percentile) scores of 8.4 (95) for reading rate, 5.2 (50) for reading accuracy and 7.0 (84) for reading fluency.  In a progress report dated August 10, 2002, the student's language training instructor at Dunnabeck indicated that the student's reading skills were "solid" and that her "reading was fluent, her confidence secure, and her comprehension strong."  She commented on the student's ability to "quickly understand new concepts and apply them to new lessons."

            The student attended Pawling Central Middle School for fifth grade during the 2002-03 school year (Dist. Ex. 14A).  In August 2002, prior to the beginning of the 2002-03 school year, the principal of Pawling Central Middle School advised petitioners that because their daughter’s results on testing administered in 2002 did not meet state standards, the school would provide academic intervention services to their daughter consisting of assistance in an integrated English class (Dist. Ex. 13).  On September 20, 2002, the section 504 Committee met and determined that the student was not eligible for section 504 status (Dist. Ex. 17).  By letter dated September 23, 2002, the principal of Pawling Central Middle School advised petitioners of the section 504 Committee's recommendation and indicated that their daughter's academic needs would be met through the Academic Intervention Program (id.).  She further indicated that the student would receive "help in science, since that subject uses abstract concepts" and would also receive class notes and clarification of directions as needed (Dist. Ex. 17).  Additionally, the student was to be provided a logbook for teacher/parent communication (id.).  Because the student exhibited weaknesses in vocabulary, she also was offered remedial reading, which petitioners declined because they did not wish their daughter to miss chorus and band (Dist. Ex. 17; Tr. pp. 888-89).  Petitioners were advised that another opportunity to place their daughter in a reading group with a reading specialist would be available after the first five weeks of the school year, and they were invited to contact the guidance office if they wished their daughter to receive this service (Dist. Ex. 17).  After the student achieved a failing grade of 58 in Reading for the first quarter of fifth grade, she participated in a Reading lab, and received passing grades in Reading for the remainder of her fifth grade year (Dist. Ex. 14A; Tr. pp. 888-89).

            On May 2, 2003, petitioners referred their daughter to respondent's CSE (Dist. Ex. 2).  As part of the evaluation process, one of respondent's special education teachers administered the WIAT to the student on May 21, 2003 (Dist. Ex. 8; Tr. p. 61).1 The examiner reported that the student worked very hard and scored in the average range on every test.  She noted that the student had some difficulty on the Math reasoning section as well as the vocabulary sections.

            In a psychological evaluation conducted on June 2, 2003, the evaluator reported that the student "displayed a long attention span and was able to remain focused throughout the session" and was "persistent in her efforts" (Dist. Ex. 7).  Administration of the WISC-III yielded a verbal IQ score of 75 (5th percentile, borderline range) a performance IQ score of 82 (12 percentile, low average range) and a full scale IQ score of 77 (6th percentile, borderline range).  The evaluator noted that the student had difficulties with word finding, and recommended a speech-language evaluation.

            During a speech-language evaluation initiated on May 14, 2003 and completed on June 10, 2003, administration of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) yielded standard (and percentile) scores of 94 (34) for receptive language, 88 (21) for expressive language and a total language score of 90 (25), which is in the low average range (Dist. Ex. 9).  Administration of the Test of Auditory and Perceptual Skills-Revised (TAPS-R) yielded an auditory perceptual quotient of 89 indicating that the student's auditory perceptual and memory skills were within normal limits.  Other standardized testing indicated average receptive vocabulary skills and low average expressive vocabulary skills.  The evaluator reported that, during testing, the student at times exhibited behaviors which suggested that she was distracted, citing as an example an incident in which the student turned to look out the door when she heard a noise in the hall.

            The student's report card at the end of fifth grade indicated that she achieved final grade averages of 75 in English and Social Studies, 71 in Reading, 70 in Science, 78 in Mathematics, 78 in Health, 99 in Physical Education, 90 in Chorus, 82 in Computer, 86 in Study Skills, 82 in Music, and 96 in Art (Dist. Ex. 14A).

            In July 2003, petitioners arranged for a private evaluation of their daughter at the Lindamood-Bell Learning Center in New York City (Dist. Ex. 27).  Based upon the student's test results, a learning profile was created showing average performance in most areas tested.

            The CSE convened for an initial review of the student on August 5, 2003 and reviewed the June 2003 evaluation reports, as well as the student's June 2003 report card, a July 15, 2003 social history and a March 4, 2003 physical evaluation report (Dist. Ex. 12).  The Committee Meeting Information sheet provides that the student's Science and Mathematics teacher described the student as "average."  It further provides that the student's achievement scores and teacher reports indicate that the student was performing above her ability.  After reviewing the reports and evaluations and considering parent and teacher input, the CSE determined that the student did not have an educational disability that interfered with her ability to learn.  By letter dated August 25, 2003, respondent's special education director advised petitioners of the CSE's recommendation that their daughter did not meet the criteria to be classified as a student with a disability.

            On September 8, 2003, petitioners advised respondent's special education director that they were placing their daughter at Oakwood for the 2003-04 school year (IHO Ex. 1).  They also requested an impartial hearing seeking tuition reimbursement, associated costs and transportation.  At a preliminary conference in early October 2003 scheduled by impartial the hearing officer, the parties entered into settlement negotiations and the matter was adjourned until the end of October (Tr. p. 8), at which time the parties reported having reached an agreement (Tr. p. 15)

            Also in October 2003, a psychiatrist began treating the student (Joint Ex. 12).  At the psychiatrist's request, the student's teachers at Oakwood completed the Conners' Teacher Rating Scale-Revised in December 2003 (Parent Ex. N).  In early 2004, the psychiatrist diagnosed the student as having an attention deficit hyperactivity disorder (ADHD) "both inattention and hyperactivity" and prescribed medication to treat the disorder (Joint Ex. 12).

            In January 2004, the impartial hearing officer was advised that settlement negotiations were unsuccessful, and after considering various scheduling concerns, adjourned the impartial hearing to June 1, 2004 (IHO Decision, p. 2).

            In April 2004, petitioners arranged for a private neuropsychological evaluation of their daughter (Parent Ex. L).  Administration of the WISC-III yielded a verbal IQ score of 90 (25th percentile, average range), a performance IQ score of 104 (61st percentile, average range) and a full scale IQ score of 96 (39th percentile, average range), indicating intellectual functioning in the low average range (Parent Ex. L at pp. 13, 20).  On the WIAT, the student achieved standard (and percentile) scores of 95 (37) in word reading, 99 (47) in numerical operations, 98 (45) in math reasoning, and 96 (39) in spelling, 95 (37) in written expression (Parent Ex. L at p. 26).

            The private evaluator concluded that the student demonstrated general intellectual ability in the average range (Parent Ex. L at p. 13).  She noted that some aspects of receptive and expressive language were deficient.  Strengths were noted in attention to visual detail, visual memory and visuospatial problem solving.  The evaluator indicated that the student's academic skills were at or near grade expectation, with the exception of reading comprehension when reading silently or independently.  She further indicated that "history and findings are consistent with attention deficit hyperactivity disorder, predominantly inattentive type."

            The private evaluator recommended small group, multisensory, experiential, discussion-based instruction in all subject areas (Parent Ex. L at p. 14).  She also recommended direct instruction in reading for meaning and that the student should practice basic math facts to bring them to an automatic level.  The private evaluator opined that the student's current placement at Oakwood seemed to be appropriate for her current educational needs.

            Respondent began presenting its case when the impartial hearing resumed on June 1, 2004.  The impartial hearing continued on June 28 and July 20, 2004.  At the hearing on July 20, the impartial hearing officer ordered respondent to conduct a WISC-IV (IHO Decision, pp. 2-3), a recent new edition of the WISC (Tr. pp. 555-57).  Additionally, the impartial hearing officer ordered the CSE to reconvene upon receipt of the results of the WISC-IV to reconsider its position regarding the student's classification (IHO Decision, pp. 2-3).

            The CSE met on July 26, 2004 to review the student's educational program (Joint Exs. 1, 7).  Petitioners did not attend the meeting (Joint Ex. 7).  The CSE reviewed the April 2004 private neuropsychological evaluation report (Parent Ex. L), as well as the other evaluations referred to in that report including the 2000 Soifer Center psychoeducational evaluation (Dist. Ex. 15), the 2002 Soifer Center psychological evaluation (Dist. Ex. 25), the Lindamood-Bell learning profile obtained by the parents in July 2003 (Dist. Ex. 27) and a December 2001 evaluation conducted at the Strong Center which is not part of the record in this appeal (Joint Ex. 7).  It also reviewed the student's August 2002 progress report from Dunnabeck (Dist. Ex. 26), and various reports which had been reviewed at the August 5, 2003 meeting (Joint Ex. 7).  At the time the CSE convened, the WISC-IV ordered by the impartial hearing officer had not been conducted (id.).

            The CSE concluded that additional information was required before it could make a determination regarding classification (Joint Ex. 7).  It recommended that, in addition to the WISC-IV ordered by the impartial hearing officer, the CSE obtain completed behavioral checklists, a developmental history and personality testing, an updated physical examination, a classroom observation, and authorization to discuss the student's needs with her treating psychiatrist.

            By letter dated August 12, 2004, respondent's director of special education advised petitioners that at the July 26, 2004 meeting, the CSE concluded that it did not have sufficient information to determine whether their daughter had a disability that would require special education services (Dist. Ex. 29).  He indicated that in the interim, the CSE recommended to the middle school principal interventions to address petitioners' daughter's needs including the Academic Intervention Program for science, remedial reading, test directions read and understanding ensured, extended time to complete classroom assignments, study guides, a homework log, preferential seating and a logbook for teacher/parent communication.

            Administration of the WISC-IV as ordered by the impartial hearing officer was completed on September 15, 2004 by an independent evaluator (Joint Ex. 11).  Results yielded a full scale IQ score of 97 (42nd percentile) consistent with the student's previous WISC-III scores (Joint Ex. 10; Tr. p. 792).  The independent evaluator reported that the student "did not approach testing with any noteworthy evidence of an attentional disorder," was able to remain focused on testing tasks and displayed appropriate perseverance (Joint Ex. 11).  She noted that the student had difficulty on sequencing tasks and with language-based information.  She further noted that the student had a somewhat limited ability to expand or elaborate ideas verbally and some difficulty with word finding.  The independent evaluator opined that the student's difficulties on tasks that required sustained attention were likely impeded by "organically-derived processing difficulties" identified in testing and not to an attention deficit.  She recommended additional testing to definitively rule out attention deficits.

            The CSE convened again on October 13, 2004 to review the results of the WISC-IV (Joint Ex. 10).  The independent evaluator who administered the test participated by telephone and advised the CSE that she found no evidence of a disability.  Regarding the March 2004 private neuropsychological evaluation report which identified the presence of ADHD, inattentive type, the independent evaluator reported that she found no evidence of ADHD in her testing, and noted that observational checklists would be required to make an ADHD diagnosis.  The CSE determined that the student was not eligible for classification and recommended a number of services and accommodations.  At the conclusion of the meeting, the student's mother presented the CSE with a letter from the student's treating psychiatrist in which the psychiatrist indicated that the student was responding to medication prescribed for ADHD, and that because of the medication, an assessment of ADHD "would not show the full spectrum of symptoms" (Joint Ex. 12).  The psychiatrist advised against discontinuing the student's medication for purposes of evaluation, indicating that this could be "detrimental" to the student (id.).  The CSE agreed to reconvene to consider whether the student should be classified given her diagnosis of ADHD (Joint Ex. 10).

            The impartial hearing resumed on December 9, 2004 and concluded on January 13, 2005.  The impartial hearing officer rendered his decision on March 29, 2005.  He found that the evidence did not indicate that the student was a student with a learning disability, or that her speech-language impairment adversely affected her educational performance, or that her ADHD affected her classroom performance to a degree that it should be considered a disability.  Notwithstanding his finding that respondent met its burden demonstrating that the student should not be classified, the impartial hearing officer indicated that had he determined that respondent's recommendation not to classify the student was inappropriate, he would have found that petitioners were entitled to tuition reimbursement.

            Petitioners appeal from the impartial hearing officer's decision.  They assert that the impartial hearing officer erred in determining that their daughter should not be classified as a student with a disability and in denying their request for tuition reimbursement.  Respondent cross-appeals claiming that the impartial hearing officer lacked authority to find Oakwood appropriate and to consider the equities once he determined that the student was not a student with a disability.

            I will address petitioners' claims first.  Petitioners argue that the impartial hearing officer erred in determining that their daughter should not be classified as a student with a disability claiming that respondent did not adequately evaluate their daughter in that it failed to conduct a classroom observation and failed to evaluate their daughter for an attention disorder.

            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).  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 (Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child Suspected of Having a Disability, Appeal No. 00-002).  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]; Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 01-022; Application of a Child Suspected of Having a Disability, Appeal No. 00-002).  Applicable federal regulations provide that when evaluating a child suspected of having a specific learning disability, at least one CSE member, other than the child's regular teacher, must observe the child's academic performance in the regular classroom setting (34 C.F.R. § 300.542; 8 NYCRR 200.4[b][6][xiv]).

            Petitioners referred their daughter to respondent's CSE in May 2003.  There is no indication in the record that respondent conducted and reviewed an observation of the student in her current educational placement as required (see 8 NYCRR 200.4[b][1][iv]; 34 C.F.R. § 300.542).  When a required component of a referred student's evaluation has not been performed prior to the CSE's classification decision, the classification decision may not be upheld (Application of a Child Suspected of Having a Disability, Appeal No. 02-048; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child with a Disability, Appeal No. 01-101; Application of the Bd. of Educ., Appeal No. 01-022).  Accordingly, I must find that respondent failed to meet its burden of establishing the appropriateness of its CSE's recommendation that the student not be classified as a student with a disability.

            Having found that respondent did not meet its burden of proof with respect to the appropriateness of the recommendation made by its CSE, I must determine the appropriate remedy.  Petitioners request that respondent be required to reimburse them for the cost of their daughter's tuition at Oakwood.  However, the remedy of tuition reimbursement is available for a student who is entitled to receive a free appropriate public education pursuant to the Individuals with Disabilities Education Act (20 U.S.C. §§ 1400 - 1487).  Although respondent failed to meet its burden of proof in this proceeding, it does not follow that petitioners' daughter necessarily meets the statutory and regulatory criteria for classification as a child with a disability.

            An appropriate remedy would be to order the CSE to perform an observation prior to the end of the school year at issue, in order to afford a basis for determining whether the student was eligible for classification as a child with a disability during that school year.  However, in this case, the school year at issue ended approximately one year ago.  In determining what remedy would be appropriate, I have considered the fact that an order requiring the CSE to observe the student in her current setting would not yield evidence of what the student's needs were during the 2003-04 school year.  Given the passage of time, I find that I am obliged under the circumstances to determine whether the student was eligible for classification as a child with a disability based upon the evidence presented at the hearing relating to the student's needs during the 2003-04 school year.

            In order to be classified as a child with a disability under federal regulation (34 C.F.R. § 300.7[a][1]) or its state counterpart (8 NYCRR 200.1[zz]), a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a 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. 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).

            The record shows that the student's scores on the WISC-III consistently indicate functioning in the borderline to low average range of cognitive ability (Dist. Ex. 7 at p. 4, Dist. Ex. 15 at p. 4, Dist. Ex. 25 at p. 2).  I note that administration of the WISC-IV in September 2004 yielded results consistent with previous cognitive testing (Joint Ex. 10; Tr. p. 792). 

            With respect to the student's academic achievement, the record shows that, consistent with cognitive testing, the student's standardized test scores reflect achievement in the average range.  The WIAT was administered in the spring of 2000 (Dist. Exs. 15, 21), again in the spring of 2003 (Dist. Exs. 8) and a third time by the parents' private evaluator in the spring of 2004 (Parent Ex. L).  Scores on all three tests placed the student's performance in the average range on all subtests administered.  The record also shows that the student's classroom performance was consistent with her standardized achievement test scores.

            While the record is consistent that the student displayed various relative weaknesses, her standardized test scores fell within the range expected given her cognitive ability and do not suggest the presence of a disability.  The May 2000 Soifer evaluation report suggested that, although the student was likely to experience academic difficulties as the linguistic demands of school increased, her difficulties did not indicate the presence of a learning disability, and were consistent with her intellectual level (Dist. Ex. 15 at p. 6).  I note that the private psychologist who administered the WISC-IV in September 2004 also concluded that the student did not have a learning disability (Joint Ex. 10).

            While the record shows that by March 2004, the student was diagnosed as having an ADHD and was being treated successfully with medication (Joint Ex. 12), records reflecting a four-year period of time do not indicate an observed change in her ability to attend to a task after she began taking medication for ADHD.  The Soifer evaluation reports from 2000 and 2002 noted that the student did not exhibit symptoms of an attention deficit (Dist. Ex. 15 at p. 4, Dist. Ex. 25 at p. 2).  The evaluator who conducted the June 2003 psychological evaluation described the student's long attention span and ability to persist and remain focused (Dist. Ex. 7).  I note that the independent evaluator who administered the WISC-IV noted the student's ability to remain focused (Joint Ex. 10).

            The record also shows that from the first through the fifth grades while the student was attending school in respondent's district, she received services in the general education setting.  With general education supports, the student achieved passing grades and standardized test scores in the average range.  Based upon the record before me, I am unable to find that the student requires special services and programs.  I agree with the impartial hearing officer and find that the student should not be classified as a child with a disability.

            Respondent cross-appeals from that part of the impartial hearing officer's decision claiming that the impartial hearing officer lacked authority to find Oakwood appropriate and to consider the equities once he determined that the student was not a student with a disability.  Because the impartial hearing officer ultimately dismissed petitioners' request for relief for the 2003-04 school year, I find that respondent is not aggrieved by the impartial hearing officer's findings (Application of a Child with a Disability, Appeal No. 98-2).

            THE APPEAL IS DISMISSED.

            THE CROSS-APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

June 24, 2005

 

PAUL F. KELLY
 
STATE REVIEW OFFICER

 

1  District Exhibit 8 includes a handwritten score sheet from the test protocol completed by the special education teacher who administered the test.  At the hearing, one of respondent's school psychologists testified that the original evaluator calculated the standard and percentile scores incorrectly, basing them on a chronological age of 11-11 when the student was 10-10 at the time of testing (Tr. p. 969).  The school psychologist further testified that because the original evaluator calculated the scores as if the student were one year older than her actual age at the time, recalculating the scores using the student's correct age changed the results in a "positive direction" (Tr. p. 970).