94-042

            Petitioner's son, who is five years old, was born with a partial cleft palate and hydrocephalus.  The latter condition involves the dilation of the cerebral ventricles and the accumulation of fluid, which puts pressure on the brain.  Within weeks of his birth, the child received a ventriculoperitoneal shunt, which is a device by which the fluid pressure in his head had been regulated and relieved.  The child's cleft palate was surgically corrected when he was one year old.  The child suffered from a series of earaches until he was three and one-half years old, when surgery was performed on the tympanic membranes in both of his ears.  The child reportedly has some loss of hearing, but his hearing was nevertheless reported to be within normal limits when tested in April, 1994.  Although the child was described by his neurologist as having an attention deficit, the record does not reveal the extent of the child's deficit.

            At the age of two months, the child began receiving physical therapy at the New Interdisciplinary School (NIS), a private school which has been approved by the State Education Department as a provider of special education services to preschool children.  The child received physical therapy to remediate delays in the development of his gross motor skills.  He also began receiving occupational therapy and speech/language therapy from the NIS to address delays in the development of his fine motor and speech/language skills.

            For the 1992-93 and 1993-94 school years, the child was classified by respondent's Committee on Preschool Special Education (CPSE) as multiply disabled.  At the CPSE's recommendation, the child received preschool instruction in a class with eight other children in the NIS.  During both school years, the child continued to receive speech/language therapy, physical therapy and occupational therapy.  In March, 1993, petitioner's child was evaluated by a NIS school psychologist, who reported that the child had developed various ways of attempting to cope with difficulties in his language and fine-motor skills.  She reported that at times the child appeared to be overwhelmed by the stimuli in the classroom and appeared inattentive and withdrawn.  She further reported that the child had difficulty adjusting to transitions.  The child's composite score on an intelligence test was reported to be in the average range.  His verbal reasoning, abstract visual reasoning, quantitative reasoning and short-term auditory memory skills were reported to be within the average range.  However, his abstract/visual reasoning skills were reported to be in the low average range.  The child's attention and motivation to complete tasks were described as uneven. 

            A speech/language evaluation of the child was performed in April, 1993 by a NIS speech/language therapist, who reported that the child often exhibited a short attention span and required constant refocusing to complete a task, while on other occasions the child appeared tired and listless.  She also reported that the child exhibited a seven month delay in his receptive vocabulary skills, and a mild delay in his ability to process single word auditory information.  The child was described as having a severe delay in his ability to auditorily process information in elaborated sentences.  The speech/language therapist reported that the child's expressive language skills were delayed by approximately one-half year, with possible word retrieval difficulties.  She further reported that the child demonstrated weakness in short-term and visual memory, describing functions of objects and problem solving.  He also has shown difficulty with pragmatic communication, i.e., sharing, turn-taking, and using language to maintain a conversation and to express his wants and needs. 

            In February, 1994, respondent's school psychologist and a speech/language therapist observed the child in his class of 9 children in the NIS.  The school psychologist reported that the child was able to work independently while assembling a puzzle, and that the child spoke spontaneously and used intelligible speech.  The school psychologist further reported that the child demonstrated adequate frustration tolerance and appropriate socialization with his peers.  While he appeared to make the transition from one activity to another, he refused to participate in one class activity, and isolated himself in a corner of the classroom.  The observation was conducted by respondent's employees to review the progress of the district's preschool children who were receiving special education, and to begin to identify those children who should be referred to the CSE for appropriate special educational services when  they entered kindergarten.  Neither the school psychologist nor the speech/language therapist suggested that the child be referred to the CSE for classification and placement during the 1994-95 school year. 

            In an education report completed in March, 1994, the child's NIS teacher reported that at times the child was reluctant to join in classroom activities.  The teacher opined that the child's reluctance to participate in activities was caused by his self-consciousness about his inabilities and his frequent headaches or feelings of illness which were reportedly caused by the increase of fluid pressure against his brain.  The teacher reported that the child had made significant gains in his motor development and skills, but that he had poor upper extremity control and delayed visual-motor skills.  While the child engaged freely in conversation with peers and adults, he reportedly had difficulty reasoning, and would not make guesses in unfamiliar situations.  The teacher stated that the child required adult supervision during structured learning activities, because he was often uncooperative and would withdraw from the activities.  The teacher recommended that the child remain in a small, structured special education class to address his needs, and that he receive instruction during the Summer of 1994 in order to prevent a regression in his skills. 

            In April, 1994, the child's speech/language therapist at the NIS reported that the child had made significant gains in his speech and language during the 1993-94 school year, but that he continued to have difficulty with pragmatic communication skills which affect his use of language when interacting with others.  She reported that the child's performance in school varied, and that he demonstrated a pattern of lethargy early in the day, which could be related to his medical condition.  In a test of his receptive language skills, the child received average and above average scores, except for one subtest involving sentence structure.  However, the therapist reported that further testing revealed that this was not an area of deficit for the child.  The child's receptive language skills were reported to be at the 39th percentile, while his expressive vocabulary skills were reported to be at the 81st percentile.  The therapist reported that the child's repaired cleft palate did not have any noticeable effect upon his speech.  The speech/language therapist recommended that the child continue to receive therapy through June, 1994, with an emphasis upon his pragmatic communication skills.  However, she did not recommend that services be provided during the 1994-95 school year, but indicated that the child should be re-evaluated in approximately one year.

            The child's physical therapist at the NIS reported in April, 1994, that the child, who was then five years old, was unable to demonstrate various skills which were expected of five year old children on nationally normed tests, and could demonstrate only some of the skills expected of four year old children.  The therapist opined that the child had mastered skills at the two and one-half to three year old level.  He reported that the child displayed a good range of motion, but had inconsistent muscle tone and poor right-left coordination.  He further reported that the child's awareness of his strengths and weaknesses caused him to display inconsistent performance in the classroom.  The therapist recommended that the child continue to receive physical therapy to improve his postural tone consistency, to enhance his balance and right-left integration, and to develop age-appropriate motor skills.

            In a summary of various evaluation reports completed on April 12, 1994 an interdisciplinary team of the NIS recommended that the child continue to receive instruction in a small, self-contained special education class, with physical therapy and occupational therapy, during the Summer of 1994 and the 1994-95 school year.  The team also recommended that the child receive speech/language therapy during the Summer of 1994.  The team's recommendation was considered by respondent's CPSE on April 25, 1994.  The CPSE recommended that the child remain classified as multiply disabled, and that he continue to receive instruction in the self-contained special education class in the NIS, with speech/language therapy, physical therapy and occupational therapy, during the month of July and August, 1994.  In its recommendation, the CPSE reported that the child required a 12-month program in order to prevent a regression in his skills.  Although the child's individualized education program (IEP) which the CPSE prepared at its April 25, 1994 meeting did not address the child's classification and placement for the 1994-95 school year, the child's parents were subsequently advised in a letter dated May 11, 1994 from respondent's director of special education that respondent had approved the CPSE's recommendation that the child be declassified as of August 13, 1994.  At the hearing in this proceeding, the director of special education testified that it was the district's standard practice to declassify all preschool children when they became eligible to attend kindergarten, and to refer to the CSE those children believed by the CPSE to require special education in kindergarten.1

            On April 25, 1994, the child was referred to the CSE by the NIS.  The child's mother consented to his evaluation by the CSE on May 10, 1994.  On May 16, 1994, respondent's speech/language therapist reviewed the results of the NIS speech/language therapist's evaluation and administered a brief test of the child to measure his conversational skills.  Respondent's therapist reported that the child's speech was intelligible, and that the child initiated, maintained, and changed topics of conversation appropriately. 

            The CSE did not perform an occupational therapy evaluation, but relied upon the results of an evaluation performed by a NIS occupational therapist on May 16, 1994.  At the time of the evaluation, the child was 62 months old.  The therapist reported that the child's gross motor skills were at an age equivalent of 36 months, and his fine motor skills were at an age equivalent of 28 months.  She reported that the child exhibited much upper extremity fixation, and a very mild tremor, which increased as he continued to perform tasks.  She also reported that the child exhibited delays in bilateral integration, which affected his performance in all areas.  The occupational therapist recommended that the child continue to receive individual occupational therapy to improve his bilateral integration and his fine motor skills. 

            On May 19, 1994, the child was evaluated by respondent's school psychologist, who reported that the child's cognitive skills were within the average range, and that his verbal ability appeared to be more highly developed than his perceptive performance.  The school psychologist reported that the child had a deficit in his short-term visual memory, and that his visual-motor integration skills were delayed by approximately one year.  She noted that the child had difficulty holding and controlling a pencil.  The school psychologist opined that the child's socialization skills appeared to be age appropriate. 

            In an educational evaluation completed on June 9, 1994, the child achieved standard scores of 86 in reading, 84 in mathematics, 86 in writing, 98 in broad knowledge, and 75 in "skills".  One of respondent's educational evaluators testified at the hearing in this proceeding that the "skills"  score was derived from the child's performance upon subtests which measured his word identification skills, mathematical calculation skills, and writing skills.  She explained that the child's low scores on the writing skills subtest had depressed his skills standard score to 75.  However, the educational evaluator opined that the child "should be ready for kindergarten", notwithstanding that score.

            The final required component of a referral evaluation, a physical examination, was performed by the child's family physician on June 6, 1994.  The physician reported that the child's vision was normal, and that his health was otherwise unremarkable.  He did not refer to the child's hydrocephalic condition, or the fact that the child had a shunt.  The physician indicated that there was no need to limit the child's activities. 

            On June 20, 1994, the child's parents and two teachers from the NIS met with the CSE.  The CSE chairperson testified at the hearing that the CSE had considered whether the child should be classified as learning disabled, speech impaired or other health impaired, and had concluded that the child did not meet the regulatory definition for any of those disabilities.  The minutes of the CSE meeting reveal that the CSE noted that the child might be eligible for services under Section 504 of the Rehabilitation Act of 1973 (29 USC 749), and might require adaptive physical education.  However, the CSE made no recommendation with regard to either Section 504 services or adaptive physical education. 

            In a letter to respondent's president, dated July 26, 1994, petitioner requested that an impartial hearing be held to review the CSE's recommendation.  The hearing began on August 17, 1994, and concluded on September 13, 1994.  In his decision which was rendered on October 19, 1994, the hearing officer found that the child had been adequately evaluated, and that the child would not be appropriately classified as learning disabled, multiply disabled, other health impaired, or speech impaired.  He further found that the CSE's recommendation that the child be placed in a regular education kindergarten class was appropriate.  With regard to the CSE's suggestion that the child might be eligible to receive supportive services under Section 504 of the Rehabilitation Act of 1973, the hearing officer held that the CSE was required to specify the appropriate services and their frequency and duration, and directed the CSE to do so within 20 days.  The hearing officer also found that respondent's CPSE had failed to notify the child's parents of the child's possible eligibility for declassification support services (8 NYCRR 100.1[q]), and held that the child was in fact eligible to receive such services.  He directed the CSE to specify the declassification support services to be provided to the child.

            Petitioner challenges the hearing officer's holding that his child was not a child with a disability for purposes of the Individuals with Disabilities Education Act (20 USC 1400 et seq.), or its State counterpart, Article 89 of the Education Law.  Respondent asserts that the hearing officer's decision upholding the CSE's recommendation is supported by the record.  Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that the child not be classified (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36).

            The initial issue to be considered is whether the evaluations upon which the CSE relied were adequate to support its recommendation.  Petitioner asserts that the CSE failed to perform a complete speech/language evaluation of the child.  The record reveals that respondent's speech/language therapist, with one exception, did not conduct her own evaluation of the child on May 16, 1994.  Instead, she reviewed the results of an evaluation performed by the NIS speech/language therapist in April, 1994.  It is well settled that a CSE may rely upon the evaluative data obtained by others, in lieu of conducting all or a portion of its own evaluation (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12).  The evaluation by the NIS speech/language therapist included assessments of the child's receptive and expressive language skills, using widely recognized standardized tests, and a description of the child's speech production.  In addition, she reported that the child occasionally did not exhibit good pragmatic use of language with others, especially when he was in the classroom, but that he was able to communicate in complex, developmentally appropriate sentences.  Although the NIS speech/language therapist testified at the hearing in this proceeding that she wished that she had further tested and described the child's pragmatic language and auditory processing skills, I am not persuaded that the NIS speech/therapist's evaluation upon which the CSE relied was inadequate.  I must note that a private speech/language evaluation was obtained in August, 1994, two months after the CSE made its recommendation.  Although the private evaluation provided some additional information about the child's language deficits, it does not afford a basis for concluding that the prior evaluations were inadequate.  However, the private evaluation more clearly defines the child's expressive language and auditory processing difficulties, and will be useful in planning appropriate programs and services for the child.

            The one assessment which respondent's speech/language therapist conducted consisted of a 50 utterance language sample.  She reported that she had analyzed the child's language sample for syntax, semantics and pragmatics, and had calculated the child's mean length of utterance to be 4.31 morphemes.  In reporting that the child's mean length of utterance was within one standard deviation of the mean length of utterance for children of his age, respondent's speech/language therapist erred by computing the child's age to be 52 months, when he was in fact 62 months old.  However, the therapist's error does not per se establish that the CSE failed to adequately evaluate the child.

            The central issue in this appeal is whether the child is eligible for classification as a child with a disability under the applicable Federal and State regulatory criteria.  Federal regulation defines children with disabilities as:

" . . . those children evaluated in accordance with §§ 300.530 - 300.534 as having mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities, and who because of those impairments need special education and related services." (34 CFR 300.7[a][1])

            The Federal regulation, and its State counterpart (8 NYCRR 200.1[mm]), require that not only must a child have a specific physical or mental condition, but that the child's educational performance is adversely impacted by such condition to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36).  The record reveals that petitioner's child has several conditions which have, or will have, an effect upon his educational performance.  Those conditions include deficits in gross motor skills and low muscle tone, deficits in fine motor skills, delays in language and processing skills, and frequent headaches related to his hydrocephalus.

            The NIS physical therapist's unrebutted testimony established that the child has significant delays in the ability to perform certain tasks which are reflective of his low muscle tone and his diminished sense of his position in space.  He testified that the child was required to exert unusual amounts of attention and energy merely to maintain an upright posture against the force of gravity.  The child required the use of a special "cube" chair in order to maintain the appropriate posture to benefit from instruction.  The effort required to stabilize his upper body has apparently affected the child's ability to perform table top activities, such as using a pencil, scissors or other hand tool.  The therapist further testified that the child is reluctant to participate in certain physical activities because of his awkwardness.  I find that there is no credible evidence to refute the physical therapist's recommendation that the child receive physical therapy during the 1994-95 school year.

            The NIS occupational therapist's testimony about the child's fine motor skill deficits and need for occupational therapy is similarly unrebutted in the record.  She testified that the child had difficulty with bilateral tasks, i.e., tasks requiring the coordinated use of two hands, such as writing and using scissors, and that he had visual motor deficits which would affect his ability to print or write legibly.  She also testified that the child could not continue to use a four finger pencil grip, without fatigue.  The therapist recommended that the child receive occupational therapy to improve his bilateral integration and fine motor skills.

            As noted above, the child's speech/language skills and deficits have been rather extensively documented.  I find that the child has significant deficits in his pragmatic language skills, as described by his NIS teacher, NIS speech/language therapist, and the private speech/language evaluator.  The child's spontaneous use of language is inhibited to the extent that he has difficulty expressing his wants and needs, or responding to teacher questions.  He also has difficulty with auditory processing.

            In addition to the deficits or delays in his motor and language skills, the child has recurring or chronic headaches and fatigue as a result of his hydrocephalus.  The child's teacher in the NIS testified that the child had headaches as frequently as three days a week, and that he typically withdrew from classroom activities when he was so afflicted.  Her testimony was supported by the testimony of a NIS school psychologist and the NIS physical therapist.  The psychologist, who was in the child's classroom on a daily basis during the 1993-94 school year, testified that the child frequently needed to be by himself in a corner of the classroom.  The physical therapist also testified that the child complained of headaches or was withdrawn.  The child's neurologist testified at the hearing that protein headaches were related to malfunctions of the child's shunt.  In a letter to the CSE almost two months after it had made its recommendation, the child's neurologist opined that the child would have a great deal of difficulty with fine motor and writing tasks in kindergarten, and that he would also have difficulty attending to tasks in a large group.  She urged that the child be allowed to start kindergarten in a self-contained classroom.

            Although the child reportedly received a satisfactory score on the screening examination used by respondent to determine whether children are ready for kindergarten, I do not find that fact to be dispositive of his eligibility for classification as a child with a disability.  Nor does the fact that the child achieved standard scores within or near the average range in his educational evaluation in June, 1994 rule out the possibility that he has an educational disability.  This child had received an extensive array of special education and related services for at least two years before his referral to the CSE.  During the 1993-94 school year, he received special education in a 9:1+1 class, one of the most restrictive special education settings (8 NYCRR 200.6[g]), in which he received intensive assistance in learning.  The professional staff of the NIS who have worked with the child were unanimous in their opinion that the child continues to need much individual assistance in the classroom.  He also received speech/language therapy, physical therapy, and occupational therapy, and he continues to require such related services.

            In view of all of the foregoing, I find that the child meets the criteria for classification as other health impaired, which is defined in Federal regulation as:

" . . . having limited strength, vitality or alertness, due to chronic health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes that adversely affects a child's educational performance." (34 CFR 300.7[a][8]).

            Although the child does not have any of the specific disorders set forth in the regulatory definition, he does have a chronic health problem, which has affected his educational performance, and for which he requires special education or related services.  He has the right to receive those services under the Individuals with Disabilities Education Act and its State counterpart, Article 89 of the Education Law, rather than Section 504 of the Rehabilitation Act of 1973 as respondent has apparently offered to provide.  Therefore, I find that the hearing officer erred in sustaining the CSE's recommendation that the child not be classified.

            Petitioner does not request that I direct respondent to provide a specific program to the child, and I will not do so.  It is the CSE's responsibility to prepare the child's IEP, in consultation with the child's parents.  In determining which programs and services the child should receive, the CSE should review the child's IEPs for the 1992-93 and 1993-94 school years, which are not included in the record before me.  The CSE should also review the child's performance in the small regular education kindergarten class in which he is currently enrolled.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision, the CSE, shall make a new recommendation for petitioner's child in accordance with the tenor of this decision.