93-018

Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioners' child not be classified as a child with a disability for educational purposes or provided with special education services during the 1992-93 school year. The appeal must be dismissed.

Petitioners' child is 7 years old, and is in first grade. In 1988, when he was two years old, the child was medically diagnosed as having hypotonic diplegia, a form of cerebral palsy which was the result of anoxia, or deprivation of oxygen, at the time of his birth. A physician found that the child had impaired gross motor and fine motor skills and impaired speech and language. The physician also reported that the child had poor stabilization of his shoulders and pelvis and a mild deformity of the left foot.

Within two weeks of his birth, the child began to receive early childhood intervention services at the Nassau County Medical Center. At the age of three months, the child was placed by petitioners in an infant/toddler program of the North Shore University Hospital, because of their concerns about his potential speech and motor delays. The child received services 4 days each week on a 12 month basis. In July, 1989, the child was enrolled in the preschool of the North Shore University Hospital, which he continued to attend through the 1990-91 school year. While in the preschool program, the child was classified as speech impaired.

In March, 1991, a neuropsychological evaluation of the child found that his cognitive abilities were in the high average range, with no significant difference between his verbal and performance IQs. The evaluator reported that the child's nonverbal reasoning skills were slightly stronger than his verbal abilities. The child was found to have average auditory processing and receptive language skills. The child displayed some word retrieval problems in his expressive language and average or above vocabulary skills. The child's visual perceptual skills were described as excellent. His verbal and visual memory skills were found to be adequate. The child's fine motor speed and coordination were found to be in the low average range, while his graphomotor and copying skills ranged from average to superior. His fine motor, graphomotor and motor planning skills were described as efficient and functional for classroom performance.

In an education report at the end of the 1990-91 school year, the child's teacher reported that the child's speech intelligibility was good and that he could verbalize his wants and needs appropriately. The teacher further reported that the child had established good preschool color, shape, temporal and quantitative concepts and had a basic understanding of phonics. The teacher also reported that the child handled scissors appropriately and could print his first name.

On June 19, 1991, respondent's committee on preschool special education (CPSE) recommended that the child be declassified, but continue to receive speech/language therapy as a transitional service during the Summer of 1991. The CPSE further recommended that the child be evaluated by an occupational therapist. On the same day, respondent's CSE also recommended that the child not be classified as a child with a disability for the 1992-93 school year, when the child entered kindergarten. The CSE's recommendation, in the form of an individualized education program (8 NYCRR 200.4 [c]), provided for test modifications in the child's regular education program and for speech/language therapy three times per week during the 1992-93 school year. Although the speech/language services provided to the child were described in the record as transitional support services, I note that State regulation defines transitional support services as temporary services provided to a child's regular or special education teacher (8 NYCRR 200.1 [ap]). The speech/language therapy and occupational therapy provided to the child in the 1991-92 school year were declassification support services (8 NYCRR 200.4 [c][1][iii]).

Petitioners requested that an impartial hearing be held to review the CPSE's recommendation to declassify the child. However, no hearing was held. During the 1991-92 school year, the child was enrolled in a regular education kindergarten class. In November,

1991, the CSE recommended that the child receive occupational therapy twice per week for the remainder of the 1991-92 school year. Beginning in January, 1992, respondent provided the child with occupational therapy after school in the child's home.

In May, 1992, petitioners requested that the CSE conduct an annual review of the child, which State regulation requires for each child who has been classified as a child with a disability (8 NYCRR 200.4 [e]). However since the child was not classified, the CSE treated petitioners' request as a referral of the child to the CSE. At a meeting held on May 13, 1992, the CSE considered the results of an independent neurological evaluation, an independent psychological evaluation, a physical therapy evaluation, an educational evaluation and reports by the child's speech/language and occupational therapists. The CSE recommended that the child not be classified and that he be enrolled for the 1992-93 school year in a regular education first grade class, without special education instruction or services.

Petitioners requested an impartial hearing to review the CSE's recommendation. The hearing commenced on August 6, 1992, but was adjourned to allow petitioners an opportunity to obtain counsel. When the hearing resumed on August 25, 1992, petitioners were represented by an attorney. Following five additional days of testimony, the hearing was concluded on December 3, 1992. In a decision dated March 18, 1993, the hearing officer held that there was no basis in the record to support the child's classification as multiply disabled as petitioners had sought, or to require respondent to provide the child with the related services of occupational therapy, physical therapy and speech/language therapy.

Two preliminary matters must be addressed before petitioners' substantive arguments are considered. The first concerns the evidentiary rulings which the hearing officer made during the course of the hearing, to which the parties' attorneys noted their respective exceptions on the record. Petitioners attempted to introduce copies of psychological, occupational therapy and speech therapy evaluations performed at the St. Agnes Children's Rehabilitation Center in 1988. The hearing officer ruled that the evaluations were inadmissible because they were not relevant for determining the child's present condition. In view of the many more current evaluation reports already in the record, I find that the hearing officer did not abuse his discretion in limiting the record. Petitioners also sought to introduce the report of a 1991 occupational therapy evaluation of the child at St. Agnes, but were precluded from doing so by the hearing officer who sustained respondent's objection to the report as hearsay evidence. The record reveals an extended discussion during the hearing about the admissibility of the document and the alleged necessity of having the therapist who prepared the report subpoenaed to testify at the hearing. However, it is well settled that hearsay evidence is admissible in an administrative proceeding (Gray v. Adduci, 73 NY 2d 741; Nolan v. Constantine, 166 AD 2d 778). The fact that the report was hearsay goes to the weight it is to be given, not its admissibility (Carroll v. Knickerbocker Ice Co., 218 N.Y. 435). I find that the hearing officer erred in denying petitioner's request to admit the document, which was purportedly in the child's school records, into evidence. However, I further find that such error does not afford a basis for annulling the hearing officer's decision. A physician who was present when the evaluation was conducted testified at the hearing about the evaluation, and the physician's written report which was admitted into evidence specifically mentions the findings adduced in the evaluation. In addition, petitioners presented other evidence of the child's occupational therapy needs through the testimony and reports of another occupational therapist.

The second matter concerns the scope of the hearing. At various times during the hearing in this proceeding, petitioners attempted to raise the issue of the appropriateness of the CPSE's 1991 recommendation to declassify the child. Petitioners requested a hearing to review the recommendation. The record does not reveal why the hearing was not held. The hearing officer in this proceeding ruled that the issue of the 1991 declassification was not properly before him, and that petitioners should have pursued their remedies of an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law or a proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules to compel respondent to hold a hearing. The purpose of the hearing in this proceeding was to determine the child's current needs, if any, for special educational services. I do not condone respondent's failure to afford petitioners the hearing they requested concerning the 1991 recommendation, but I find that the hearing officer was correct in limiting the scope of the hearing to the child's current needs in light of the 1992 recommendation.

Respondent bears the burden of demonstrating the appropriateness of its CSE's recommendation not to classify the child as a child with a disability (Matter of a Child Suspected of Having a Handicapping Condition, 22 Ed. Dept. Rep. 192). Section 4401 (1)(a) of the Education Law, in material part, defines a child with a disability as:

"A child ... who because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education." The comparable Federal statutory definition appears in 20 USC 1401 (a)(1).

State regulation, in material part, defines special education as:

"... specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, provided at no cost to the parent, to meet the individual needs of students with disabilities.

Petitioners contend that the CSE and the hearing officer applied an erroneous standard in determining that the child was not multiply disabled, by requiring a showing that the child's disabilities caused a failure to learn, rather than a showing that the child's disabilities have affected his educational performance. They further contend that the record contains substantial evidence that the child's hypotonic diplegia and low muscle tone do adversely affect the child's educational performance.

A multiply disabled child is defined by State regulation as:

"A student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be

In this proceeding, petitioners have asserted that the child is speech impaired and has a short attention span, and has exhibited deficits in his fine motor, gross motor, motor planning, and visual motor integration skills. As further evidence of a disability, petitioners rely upon the results of an independent educational evaluation conducted at Hofstra University in February, 1992 in which the child's composite score for mental processing was in the 88th percentile, or high average range, while the composite of the child's achievement scores was in the 58th percentile, or average range.

With regard to the child's speech/language abilities, the record reveals that when he was evaluated in October, 1991, the child's receptive language skills were found to be slightly above average, while his expressive language skills were found to be slightly below average. He also displayed some articulation errors. When the child was re-evaluated in April, 1992, his receptive language skills were again in the above average range. However, his performance on a more extensive test of his receptive and expressive language was not as good as that in the October, 1991 evaluation. At the hearing, the evaluator opined that the child's performance in April, 1992 was not truly reflective of his skills which she had observed during the school year. On a different test which focused on expressive language and was administered in May, 1992, the child's performance was in the average range. In June, 1992, an independent agency administered the same test to the child, with comparable results. At the hearing, petitioners' expert witness, who is a physician specializing in rehabilitation medicine, testified that the child does not require speech/language therapy. Upon the record before me, I find that the child is not speech impaired, and does not require speech/language therapy.

At the hearing in this proceeding, the physician testified that the child has a short attention span which could hinder his educational performance. However, the child's kindergarten teacher, who has more than 20 years of experience as an elementary teacher, testified that the child had average ability to attend to tasks. For the purpose of determining whether the child has an educational disability, I credit the testimony of the child's teacher, and find that he does not have a short attention span.

In June, 1991, the child's motor development teacher in his preschool program reported that the child had age appropriate gross motor skills in jumping, leaping, running and hopping. In an independent neurological evaluation on January 15, 1992, the child was found to have symmetrical and normal bilateral muscle strength. His gait was described as narrow based, and he was found to be unable to perform tandem walking or to hop on one foot in an age appropriate manner. The neurologist reported that the child had mild hypotonia (diminished muscle tone) and unspecified delay in his gross motor skills, and recommended that the child receive physical therapy. A BOCES physical therapist who evaluated the child in April, 1992, reported that the child did not perform age appropriate gross motor skills well, and exhibited problems with muscle strength, balance and coordination. The therapist recommended that the child receive physical therapy. At the hearing in this proceeding, petitioners' physician witness, who had last evaluated the child in October, 1992, testified that the child has scapular winging, i.e. that his shoulder girdle is loose, which requires that he stabilize his shoulder by resting an arm on the table before writing or drawing. The physician noted that the child's shoulder stabilization problem had improved. When asked to describe how the child's hypotonia currently affected the child's educational performance, the physician did not identify a specific area of concern with regard to the child's gross motor skills, but opined that the child's physical weakness in shoulder stability should be habilitated to allow him to achieve his full potential. He testified that the child did not require either physical therapy or adaptive physical education. The child's kindergarten teacher testified that the child's gross motor skills were comparable to those of his peers. Although the child has certain deficits in his physical condition as the result of hypotonic diplegia, the existence of a physical condition does not per se determine eligibility for classification as educationally disabled (Akers v. Bolton, 531 F. Supp. 300 [D. Kan., 1981]). The record does not establish that the child currently has a gross motor deficit which adversely affects his educational performance or that he requires physical therapy as an educationally related service.

The child's fine motor skills, including fine motor coordination, visual motor integration and motor planning were discussed and documented at length in the hearing. In August, 1991, a private occupational therapist who evaluated the child reported that the child exhibited significant tracking and mid-line ocular motor coordination delays. In an August, 1992 report, the therapist reported that the child's tracking skills had improved, but his eye-hand coordination was still below average. At the hearing, the therapist testified that the child had a significant motor planning deficit. However, the March, 1991 neuropsychological evaluation reported that the child had adequate fine motor coordination and motor planning skills. In December, 1991, respondent's occupational therapist reported that the child's performance on tests of visual motor integration and non-motor visual perception exceeded his age expectancy. That therapist subsequently reported that the child would not need occupational therapy in the 1992-93 school year, because he had the necessary fine motor and visual motor skills to adequately perform in class. Although the experts of the respective parties offered differing accounts of the significance of test scores and other technical matters, the relevant issue is whether there is evidence that the child's alleged fine motor deficits have adversely affected his educational performance. The record of the child's accomplishments in kindergarten reveals that he has age appropriate fine motor skills in matters such as tying, zipping, buttoning and scissoring.

With regard to the child's graphomotor (handwriting) skills, the March, 1991 neuropsychological evaluation described the child's graphomotor and copying abilities as ranging from average to superior. At the hearing, petitioners' physician witness testified that the child's most significant physical condition for educational purposes was a deficit in the child's visual motor integration skills which adversely affected his writing ability. In support of his opinion, the physician testified that the child had been unable to write all of his first name on a single line of a lined tablet. However, the child's kindergarten teacher testified that kindergarten and early first grade children are not expected to stay within lines when writing.

A private psychologist who testified on behalf of petitioners asserted that the discrepancy between the child's mental processing ability and his achievement on a test administered at Hofstra University on February 18, 1992 demonstrated that the child had a learning disability, in accordance with the definition of such disability in 8 NYCRR 200.1 (am)(6). I need not determine whether the 30 percentile difference is equivalent to the criteria set forth in the State regulation, because I find that the record of the child's achievement in kindergarten does not support the existence of a learning disability. The record reveals that respondent employs a 34 item checklist to measure children's progress in kindergarten. Petitioners' child achieved each of the tasks or standards listed in the checklist, either at the same time as or before his peers did. In an educational evaluation completed in April, 1992, the child was found to have age appropriate comprehension, vocabulary and short-term auditory memory skills. His kindergarten teacher testified that the child possessed very strong reading readiness skills and satisfactory mathematical readiness skills.

I must sustain the hearing officer's conclusion that at this time the child would not be appropriately classified as multiply handicapped. Although there is evidence that the child has a medical condition, there is insufficient evidence in the record of any direct impact such condition has had upon the child's ability to benefit from instruction in a regular education program, which is a necessary element for classification as a child with a disability (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 360). This child has just begun elementary education, in which he has achieved success. A decision to classify a child as a child with a disability must be based upon the child's present needs, and not speculation about the child's future success in school (Application of a Child Suspected of Having a Handicapping Condition, 24 Ed. Dept. Rep. 3). Nor is there sufficient evidence of the child's need for a multiplicity of special education services which is an element of the Federal and State regulatory definition of a multiply disabled child (34 CFR 300.5 [b][5]; 8 NYCRR 200.1 [am][8]).

Petitioners assert that the hearing officer erred by refusing to consider the possible classification of the child as orthopedically impaired. At the hearing, their physician witness opined that the child should be classified as orthopedically impaired, although petitioners urged that the child be classified as multiply disabled. State regulation defines orthopedically impaired as:

(9) Orthopedically impaired. A student who is physically disabled and who has a severe orthopedic impairment, which adversely affects a student's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputation, and fracture or burns which cause contractures). (8 NYCRR 200.1 [am][9]).

Although the child has a form of cerebral palsy, the classification orthopedically impaired would be inappropriate, absent evidence that such impairment has adversely affected his educational performance and that he requires special education or services. At this time, the evidence in the record is that the child is successful. Under current law, I am constrained to hold that the child may not be appropriately classified as a child with a disability (Matter of a Handicapped Child, 19 EDR 511; Application of a Child Suspected of Having a Handicapping Condition, 26 id. 530). Finally, I note that petitioners have only raised claims under the IDEA (Individuals with Disabilities Education Act, 20 USC 1400 et seq.).

THE APPEAL IS DISMISSED.