Application of a CHILD WITH 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 Westbury Union Free School District
Stein and Schonfeld, Esqs., attorneys for petitioners, Nancy A. Sorrentino, Esq., of counsel
Jaspan Ginsberg, Schleslinger, Silverman and Hoffman, Esqs., attorneys for respondent, Carol A. Melnick, Esq., of counsel
Petitioners appeal from the decision by an impartial hearing officer which upheld the June 21, 1994 recommendation of respondent's committee on special education (CSE) that petitioners' daughter, who is presently classified as speech impaired, should no longer be identified as a child with an educational disability. The appeal must be dismissed.
Petitioners' daughter is 14 years old. During the 1994-95 school year, the child was enrolled in the eighth grade of respondent's Middle School, where she received consultant teacher services and speech/language therapy in addition to her program of regular education. The child received those special education services during the 1994-95 school year pursuant to her individualized education program (IEP) for the 1993-94 school year, as her "pendency placement" (see Section 4404  of the Education Law).
The child attended respondent's Park Avenue School for prekindergarten and kindergarten. Prompted by her teacher's concerns about the child's expressive and receptive language skills and her distractibility, the child was evaluated by a psychologist in October, 1986. The psychologist reported that the child received a verbal IQ score of 72, a performance IQ score of 95, and a full scale IQ score of 81. Her academic readiness skills reportedly ranged from average to below average. In July, 1989, the child was privately evaluated by a speech/language pathologist, who reported that the child's linguistic abilities were approximately two years below her age expectancy. The evaluator also reported that the child's language disorder was primarily in expressive language, with deficits in her verbal processing skills.
The child was classified as speech impaired, and was placed by respondent in a self- contained special education class in the East Williston Union Free School District for the first grade. When tested in the first grade in the Fall of 1987, the child reportedly exhibited moderate deficiencies in her receptive language skills, and severe deficiencies in her expressive language skills. The child remained in the East Williston placement through the third grade.
In the Fall of 1990, the child was enrolled for the fourth grade in a self-contained special education class in respondent's Powell's Lane Elementary School. For the fifth grade, the child was placed in a regular education program for gifted students, known as the Major Achievement Program. She received consultant teacher services for two hours each week, and speech/language therapy four times per week. The child reportedly did well, but her elementary school grades are not in the record. She was evaluated by a psychologist in the Fall of 1991, when she was in the fifth grade. The child achieved a verbal IQ score of 98, a performance IQ score of 108, and a full scale IQ score of 102. She reportedly achieved grade-appropriate scores on academic achievement tests.
Respondent's speech/language therapist, who evaluated the child in March, 1992, reported that the child exhibited an approximately three-year delay on two tests of her language skills, the CELF-R and the TLC. The therapist also reported that the child's articulation, voice, and fluency were within normal limits, but that deficits in her ability to follow oral directions and to recall sentences indicated that auditory learning was difficult for the child. The therapist further reported that the child had difficulty with "who, why, where" questions, ambiguities, inferences and intent. She recommended that the child continue to receive individual and group speech/language therapy four times per week. The private speech/language pathologist who evaluated the child in 1987 reported that respondent's March, 1992 test results were lower than those which the child had achieved on the same test in 1987. She used the child's fifth grade textbooks to assess the impact of the child's language impairment on her academic performance. The speech/language pathologist reported that the child's language disability affected her ability to comprehend the curriculum, with regard to vocabulary acquisition, concept formation, and verbal explanations.
In April, 1992, petitioners had the child privately evaluated by a neuropsychologist, who reported that the child had achieved a verbal IQ score of 94, a performance IQ score of 108, and a full scale IQ score of 101. The neuropsychologist indicated that the child's long-term auditory memory and abstract verbal reasoning skills were significantly above average, while her performance on an IQ subtest which required more extended responses was significantly below average. He opined that the child had evidenced a well-developed inner language organization, notwithstanding her difficulty in organizing expressive speech. He reported that the child's visuconceptual reasoning skills were above average, but her auditory discrimination skills in distinguishing between similar sounding words was decidedly below average. He further reported that the child's ability to recall details from passages which had been read to her was below average. The neuropsychologist also administered the Kaufman Testing of Education Achievement (KTEA) to the child, who was in the seventh month of the fifth grade. He reported that the child achieved grade equivalent scores of 2.7 in mathematic application, 7.5 in mathematic computation, and 8.4 in spelling. On the Woodcock Reading Mastery Test - Revised (see WRMT-R), the child achieved grade equivalent scores of 5.1 in word identification and 13.1 in word attack skills. He concluded that the child exhibited scattered receptive and expressive language difficulties, which could combine to cause functional problems for her in the classroom. He recommended that the child continue to receive speech/language therapy.
At the end of the 1991-92 school year, the CSE recommended that the child be declassified. Petitioners challenged the CSE's recommendation in an impartial hearing. The hearing officer found that the child should remain classified as speech impaired, and that respondent should continue to provide her with speech/language therapy and the services of a consultant teacher.
The child entered the sixth grade in the Westbury Middle School, in September, 1992. She was initially enrolled in a regular education program for gifted and talented students, but was removed from the program at petitioner's request in the Fall of 1992. At a meeting held in December, 1992, the CSE recommended that the child receive two periods per week of individual speech/language therapy and two periods per week of group speech/language therapy, as well as the services of a consultant teacher, during the 1992-93 school year. Respondent's Director of Pupil Personnel Services testified at the hearing in this proceeding that the child had done well in the sixth grade. On the KTEA, which was administered in March, 1993, the child achieved grade equivalent scores of 3.9 in reading and 7.1 in mathematics. However, the child achieved grade equivalent scores of 5.9 in vocabulary, and 5.6 in comprehension on the Iowa Test of Basic Skills, which was administered to her in May, 1993.
In April, 1993, the CSE recommended that the child remain classified as speech impaired while in the seventh grade during the 1993-94 school year. The CSE further recommended that the child receive individual speech/language therapy twice per week and small group speech/language therapy once per week, and consultant teacher services. With petitioners' consent, the child's speech/language therapy was changed to one individual and two group sessions per week. The consultant teacher testified at the hearing in this proceeding that she provided direct consultant teacher services to the child three times per week during the 1993-94 school year. She assisted the child primarily in mathematics, but also helped her in science and English. In March, 1994, the consultant teacher administered the KTEA to the child. She reported that the child achieved grade equivalent scores of 6.7 in reading, 7.1 in mathematics and 11.8 in spelling. Her standard scores on the KTEA in those three areas were 98, 98, and 122.
On May 2, 1994, the child's speech/language therapist administered the Test of Adolescent Language-2 (TOAL-2) to her. She testified at the hearing that the TOAL-2 tested different aspects of the child's language skills than did the previously used CELF-R, but that she had used the TOAL-2 because of the child's familiarity with the CELF-R. On the TOAL-2, the child achieved a score in the 84th percentile for reading vocabulary. However, her scores on the other portions of the TOAL-2 were considerably lower. Her listening vocabulary score was in the 5th percentile, as were her reading grammar and writing grammar scores. Her listening grammar score was below the 1st percentile, while her speaking vocabulary score was in the 2nd percentile. The therapist reported that the child's ability to attend to stimuli, i.e., remain focused, and her language skills had improved during the 1993-94 school year. She noted that the child retained information well, but that she had difficulty collating it to make inferences. She recommended that information be presented both visually and auditorily to the child, and that the child continue to receive speech/language therapy.
On May 13, 1994, the CSE conducted its annual review. The CSE reviewed an updated social history of the child. The school psychologist reviewed the results of the child's 1992 private evaluation by the neuropsychologist. The consultant teacher discussed the child's performance on the KTEA in March, 1994, and the child's speech/language therapist discussed the results of the May, 1994 speech/language evaluation. The child's guidance counselor discussed the child's May, 1994 vocational assessment and her academic performance and participation in school activities. The child's report card, which is part of the record before me, reveals that for the marking period immediately before the annual review was conducted, the child achieved grades of 90 in English, 87 in social studies, 100 in mathematics, 90 in life science, and 94 in Spanish. Her final grades for the 1993-94 school year were 90 in English, 86 in social studies, 99 in mathematics, and 96 in Spanish. The CSE discussed the child's eligibility to remain classified as speech impaired. Petitioners reportedly challenged the validity of their child's grades. In response to petitioners' challenge, the CSE directed the child's consultant teacher to use Bloom's Taxonomy to analyze the cognitive skill level of the questions asked on the tests which had been given in the child's academic courses. The consultant teacher and the speech/language therapist were directed to formally observe the child in the classroom. The CSE deferred making its recommendation.
The CSE met again on June 21, 1994, when it reviewed the classroom observations which the consultant teacher and the child's speech/language therapist had conducted, and the consultant teacher's analysis of the child's academic subject test questions. Both observations were conducted on May 25, 1994, in the child's science class. Although the speech/language therapist reported that the child's attention was not initially engaged in class, she reported that the child was able to work independently, and had completed her assignment in class in a timely manner. The consultant teacher also noted the child's initial attention lapse, but reported that the child worked independently, and was able to focus on her tasks. While continuing to recommend that the child receive speech/language therapy, the child's therapist reported that the child, in her opinion, did not meet the regulatory criteria for classification as a speech impaired child. In her analysis of the child's academic subject tests, the consultant teacher reported that the child had been required to use higher- level thinking skills, such as evaluation, synthesis, analysis, and application on many of her tests in English, and science. Although samples of the mathematics tests were not available to the consultant teacher, she reported that the seventh grade mathematics textbook indicated that it emphasized critical thinking, visual thinking, and decision making. She concluded that the child had been asked to demonstrate her mastery of concepts on all levels of higher order thinking skills. The CSE unanimously recommended that the child be declassified for the 1995-96 school year. The CSE also recommended that the child receive the services of a consultant teacher for one hour per week, and that she receive one period of individual and one period of group speech/language therapy during the 1995-96 school year, as declassification support services (Section 3602  of the Education Law).
Petitioners challenged the CSE's recommendation. The parties were unable to resolve their differences at a mediation session which occurred on September 22, 1994. The hearing in this proceeding was initially scheduled to take place on October 25, 1994. The hearing was adjourned at petitioners' request, until January 5, 1995. The hearing concluded on May 12, 1995.
In her decision, which was rendered on June 20, 1995, the hearing officer noted that in order to be classified as speech impaired, a child must not only have a communication disorder, but the disorder must adversely affect the child's educational performance. She found that this child's language impairment did not impair her educational performance, and that the possibility that the child might have academic difficulties in the future did not afford a basis for maintaining her classification as speech impaired. The hearing officer held she lacked jurisdiction to consider petitioners' claim with respect to the rigor of respondent's academic standards. The hearing officer upheld the CSE's recommendation.
Respondent raises two procedural defenses to the petition in this appeal. First, it asserts that petitioners served a defective Notice of Intention to Seek Review upon respondent. The form for a Notice of Intention to Seek Review is prescribed by 8 NYCRR 279.2 (a). The document which petitioners served upon respondent erroneously indicated that a copy of the hearing transcript and the hearing officer's decision could be filed with respondent's answer, rather than within 10 days after service of the Notice of Intention to Seek Review. Respondent did in fact file the hearing record within the required 10-day period. I find that service of a flawed Notice of Intention to Seek Review does not afford a basis for dismissing the petition in this appeal.
Respondent's second objection is that the petition was not served upon it within 40 days after petitioners received a copy of the hearing officer's decision, as required by 8 NYCRR 279.2 (b). By respondent's reckoning, the petition was served on the 41st day after petitioners received the hearing officer's decision. Petitioners have not replied to respondent's affirmative defense. However, I find that, in the absence of any evidence of harm to respondent by petitioners' one-day delay, the petition should not be dismissed as untimely.
Respondent bears the burden of establishing the appropriateness of its CSE's recommendation to declassify the child (Application of a Child with a Handicapping Condition, Appeal No. 92-32). In order to meet its burden, respondent must demonstrate that its CSE appropriately evaluated the child, and that the CSE's recommendation is supported by the evaluative data and other evidence in the record. The record reveals that the CSE obtained both an educational and a speech/language evaluation of the child. In addition, she was observed in one of her classes by both the consultant teacher and the speech/language therapist. At the hearing, two of petitioners' expert witnesses opined that the comprehensive form of the KTEA should have been administered to the child during the March, 1994 educational evaluation because there were allegedly significant differences in the scores which the child received on portions of the brief form of the KTEA which was administered to the child in that evaluation. I must note that the record reveals that the child's standard scores for reading and mathematics were both in the average range, while her standard score for spelling was in the above-average range. Although a comprehensive version of the KTEA was subsequently administered to the child by a private evaluator in January, 1995, her standard scores on the comprehensive version of the KTEA were not significantly different from those which she achieved on brief form of the KTEA in March, 1994. The record reveals that the CSE obtained information from a variety of sources about the child's academic performance and social growth. I find that the additional information about the child which an administration of a comprehensive form of the KTEA would have provided was not necessary for the purpose of determining whether the child continued to be eligible for classification as speech impaired. I further find that the CSE adequately evaluated the child prior to making its recommendation to declassify her.
A speech impaired child is defined in State regulation as:
"A student with a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, which adversely affects a student's educational performance." (8 NYCRR 200.1 [mm[)
The Federal regulatory definition of a "speech impairment" (34 CFR 300.7 [b]) is virtually identical to the State definition of a speech impaired child. 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]) (Emphasis added)
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; Application of a Child Suspected of Having a Disability, Appeal No. 95-11).
Petitioners asserts that their daughter has a severe language and communication disorder which adversely impacts upon her educational performance. The hearing officer found, and there appears to be no genuine dispute, that the child has a language impairment. There is no evidence that she has any deficits in speech articulation. She does have difficulty expressing herself, especially in writing and in responding to certain kinds of questions. Although the child appears to have adequate ability to acquire and retain information, she is not always able to respond appropriately to some questions because of difficulty in organizing her response.
The parties disagree as to the impact which the child's language impairment has on her academic performance. Petitioners insist that the adverse impact of the child's language impairment is demonstrated by her performance on standardized academic achievement tests and by the selective portions of the child's homework assignments and responses to test essay questions which they introduced into evidence. They point out that the child's performance on the reading decoding and mathematical computation portions of the KTEA was substantially better than her performance on the reading comprehension and mathematical application portions of the KTEA. Petitioners argue that the child's relatively poor performance on the latter two portions of the KTEA reflect the adverse impact which her language impairment has upon her ability to understand and formulate appropriate responses to certain kinds of questions. Their expert witness, a private psychologist, opined that such disparities between the results which the child achieved on the various portions of the KTEA were significant. However, neither the private psychologist, nor the private speech/language pathologist who testified on behalf of petitioners, was familiar with the average range of scores on the KTEA. The statistician who testified on behalf of respondent indicated that the child's standard scores of 100 for reading decoding, 91 for reading comprehension, 125 for mathematical computation and 89 for mathematical application on the KTEA which the private psychologist administered to the child in January, 1995, were either in the average range (85 to 115), or above-average range. He further testified that a significant discrepancy should be determined by measuring the difference between a subtest score and the mean, rather than by measuring the difference between the highest and lowest subtest scores. Petitioners have not refuted his testimony. I have also considered the child's test results on other assessment instruments, such as the TOAL-2. The TOAL-2 manual (exhibit 43) indicates that the test may be used to determine areas of relative strength and weakness in language skills, and to document progress in language development as a consequence of special intervention programs. However, I find that there is no basis in the record for concluding that the TOAL-2 measures the impact of a child's language deficits upon the child's academic performance.
Petitioners also rely upon the various samples of their child's written work which are in the record. As they point out, the child's writing samples include instances of syntactical or semantic error, which reflect the child's "peculiar language formation", a condition described by both respondent's speech/language therapist and the private speech/language pathologist. Petitioners contend that the child's syntactical and semantic difficulties, as reflected in these exhibits, demonstrate the adverse impact which her language impairment has on her academic performance.
Academic performance is not determined by any one means. It frequently involves an assessment of the child's skills as demonstrated by the child's performance in class and on standardized tests, teacher prepared tests, homework, and projects. In this instance, the child's academic performance has been found to be excellent by all of her teachers, who obviously used different methods and criteria for assessing her performance. Their assessment has been shown to be consistent with the child's scores on standardized tests. The child's academic performance in school during the 1993-94 school year was consistent with her cognitive abilities. Although petitioners may disagree with the academic standards by which respondent's teachers assess the work of their students, whether disabled or not, that is not an issue which may be reviewed under the due process provisions of either Federal or State law (Application of a Child with a Disability, Appeal No. 94-31).
Upon the record before me, I find that the CSE's recommendation that the child be declassified is supported by the record because the evidence does not establish that the child's academic performance is adversely affected by her language impairment.
THE APPEAL IS DISMISSED.