98-034

    Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that petitioner’s son should not be classified as a child with a disability. Petitioner further appeals from the hearing officer’s order denying his request for assistive technology services and reimbursement for evaluation expenses. The appeal must be sustained in part.

        Preliminarily, I will address a procedural issue raised in this appeal. Respondent argues that the petition should be dismissed because it was untimely. State regulation requires that a petition for review of an impartial hearing officer’s decision be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). The hearing officer’s decision in this proceeding is undated, however, petitioner admits receiving the decision on April 28, 1998. Pursuant to 8 NYCRR 279.2 [b] the petition should have been served by June 7, 1998, a Sunday. The petition was served on the following day, June 8, 1998. Respondent has not alleged that it was prejudiced by petitioner’s failure to serve the petition within 40 days after his receipt of the decision. In view of the circumstances, respondent’s request to dismiss the petition as untimely is denied.

        At the time of the hearing, petitioner’s son was in the fifth grade at respondent’s Dogwood Elementary School. When the child was two years old, he was referred because of delays in speech development to The Children’s Center, an early intervention program for infants and preschoolers operated by the United Cerebral Palsy Association of Greater Suffolk. At the age of three, he was diagnosed as having a sensorineural hearing loss in his right ear. The child attended preschool at The Children’s Center, where he received speech therapy. He reportedly was classified as hard of hearing by respondent’s committee on preschool special education, but was declassified in June, 1992 (Exhibit 18-7).

        While in the second grade in 1995, the boy was referred to a school psychologist for a psychological evaluation to determine if his hearing loss impacted on his ability to learn. On the WISC-III, the child achieved a verbal IQ score of 114, a performance IQ score of 107, and a full scale IQ score of 112, placing him in the above average intellectual range. Test results indicated that he demonstrated strengths in mathematical reasoning and computation. The school psychologist reported that the child was achieving appropriate educational and academic growth. He did not find any major discrepancies between the child’s academic skill acquisition and his cognitive abilities, nor did he find any indication of processing difficulties which impacted the child’s abilities to learn in a mainstream setting. The school psychologist did not recommend any specific special education services for the child.

        The child, reportedly, was reviewed by the school’s multidisciplinary team when he was in third and fourth grade because of his inability to attend, i.e., pay attention, in class, inability to follow directions, impulsivity, difficulty with organization and off-task behaviors. The school psychologist, who conducted a classroom observation, confirmed the teachers’ descriptions of the child’s behavior. The boy’s behavior was found to be indicative of an Attention Deficit Disorder (ADD) on the Stony Brook Child Symptom Inventory which was completed by his teacher. It was suggested to the child’s parents that he be further assessed to rule out ADD.

        In a fourth grade school report dated November 12, 1996, the boy’s teacher rated the boy’s performance as above grade level in reading, social studies, science and mathematics. She rated his performance at grade level in writing, and below grade level in spelling. The boy’s fourth grade teacher reported that the boy had difficulty paying attention and that he frequently lost things.

        In May, 1997, a private psychiatrist opined that the child might have ADD, but only to a very mild degree. She also opined that the boy’s attentional difficulties did not warrant medication, but suggested that the boy would benefit from a supportive class setting and a teacher who was aware of his needs.

        A developmental assessment of the child was completed by a developmental pediatrician in June, 1997 to determine the presence of ADD. The developmental pediatrician described the child as "fidgety" and reported that it required considerable effort on the part of the child to concentrate. Although the boy’s sentences were appropriate in length and syntax, the developmental pediatrician observed that he struggled with sentence formation. She opined that the child had a form of language disorder and that he demonstrated attention difficulties. She was unable to determine the degree to which his language disorder was responsible for his attention difficulties. She recommended a thorough speech and language assessment including an audiological evaluation. In addition, she recommended classroom amplification, preferential seating and repetition of instructions and commands. She also recommended exploring the possibility of the use of an auditory trainer.

        In August 1997, the child was referred to the Speech, Language and Hearing Program at Stony Brook for a complete audiological evaluation and a pediatric speech language evaluation. Audiometric findings for the right ear indicated that the child had a severe sensorineural hearing loss with no measurable speech discrimination ability. Testing in the child’s left ear revealed that his hearing within was normal limits and he had excellent speech discrimination ability. The audiologist opined that the boy might have difficulty understanding speech in group listening situations and noisy environments, and in situations where the speaker is speaking softly or from a distance. She recommended a classroom amplification system to ". . . circumvent the negative influences of distance, reverberation, and background noise found in most classrooms. " The Stony Brook speech/language pathologist reported that the boy’s language skills were within normal limits, but he had weaknesses in grammatical organization and use. It was noted that he demonstrated difficulty remaining on task and that his distractibility would significantly increase in a classroom environment. The speech/language pathologist recommended preferential seating and the use of an auditory trainer to assist the boy in tuning out external distractions in the classroom.

        The child was referred by his parents to respondent’s CSE in the fall of 1997. In an academic evaluation conducted by the school’s reading specialist in September, 1997, the child achieved a standard score of 116 in overall performance on the Peabody Individual Achievement Test - Revised, placing him in the high average range. The boy’s score on the general information subtest indicated that he had a fund of knowledge that placed him in the superior range. In subtests determining reading, spelling, writing and mathematics the boy achieved scores placing him in the high to above average range. The reading specialist reported that the boy demonstrated average to superior performance in the academic areas. She opined that he did not require special education services.

        In an undated speech/language evaluation conducted when the child was in the fifth grade, his speech and language skills were reported to be age appropriate. The speech/language evaluator reported that the child was able to follow complex multi-step directions, listen to paragraphs and answer questions appropriately. Expressively, he was able to formulate complex sentences, utilize appropriate syntactical structures and use age appropriate vocabulary. The speech/language evaluator noted that the child displayed appropriate eye contact and turn taking skills, but that he appeared easily distracted and had difficulty remaining in his seat and keeping still. She determined that the child was not a candidate for speech/language therapy.

        In a psychological evaluation completed by the school psychologist in September, 1997, the child achieved a verbal IQ score of 111, a performance IQ score of 112 and a full scale IQ score of 112, placing him in the high average range of intelligence. The school psychologist noted that the boy exhibited impulsive and inattentive behaviors which had most likely affected the overall results of the evaluation. He reported that the boy’s intellectual profile revealed strengths in areas involving general information, mathematical reasoning, non-verbal reasoning and conceptual skills including his problem solving ability. The child demonstrated average ability in abstract reasoning, vocabulary and short-term auditory memory. The school psychologist observed that these results were consistent with previous findings. He noted that the child’s academic skills were commensurate with his cognitive development. While the school psychologist opined that the child appeared to have ADD for which medication might prove useful, he indicated that there were no suggestions of learning disabilities, and that there was no need for special education programs or related services. He recommended classroom accommodations which included preferential seating. He also suggested the use of a reward system to teach the boy organization and time management skills.

        A social work evaluation based on an interview with the child’s mother was completed on September 4, 1997. The social worker reported that the child’s mother had requested that a special sound system be installed in her son’s classroom, so that her son could hear what other children heard without being stigmatized by using an individual amplification device.

        On September 9, 1997, a classroom observation was conducted by the school’s speech/language specialist. The speech/language specialist noted that the child appeared to listen and follow the directions necessary to complete the class assignment, but that he displayed fidgety behavior while doing so. She observed that the boy was able to engage in verbal discourse with his peers who were seated next to and across from him. She reported that he did not appear to have any difficulty hearing or understanding what was said to him. She opined that the child was able to participate within a classroom setting without any assistance.

        The child’s fifth grade teacher completed a classroom observation report on September 17, 1997, approximately two weeks after the beginning of the school year. She indicated that she tried various seating arrangements to address the child’s hearing impairment, but had not observed any difference in his ability to participate. She noted that he was easily distracted and disorganized, but that he contributed to discussions and completed his assignments most of the time.

        The CSE met on September 23, 1997. Based on a review of the above information, the CSE recommended that petitioner’s son not be classified as a child with a disability. The CSE, however, did recommend that he receive a central auditory processing evaluation, and that an accommodation plan be developed pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794, hereinafter "Section 504"). Eligibility for services under the latter statute is more broadly defined than under the Individuals with Disabilities Education Act (20 USC 1400 et seq.; compare 34 CFR 104.3 [j] with 34 CFR 300.7 [a] [1]).

        The school’s child study team met on October 17, 1997 to prepare a Section 504 Student Evaluation and Educational Plan (Exhibit 4, hereinafter "Section 504 Plan") for the child. Petitioner requested that the Section 504 Plan include a classroom amplification system, a fire alarm system with flashing lights, padding under the chairs, and carpeting in the classroom to reduce extraneous noise. Petitioner would not sign the Section 504 Plan unless his requests were incorporated therein. Petitioner appealed the Section 504 Plan to the District’s Section 504 Compliance Officer, and a meeting was held in November, 1997 to discuss the issues raised by petitioner. Since the central auditory processing evaluation recommended by the CSE had not been completed, it was agreed that no decision would be made until that evaluation was completed.

        In December, 1997, an audiological evaluation and an assessment of the child’s central auditory processing were completed by an audiologist in Kings Park, New York (Exhibit B). The audiologist described the child as cooperative, however, she noted that he became restless and fidgety, and required verbal encouragement in order to complete the examination. Audiometric findings revealed a moderately severe to severe sensorineural hearing loss in the right ear, and normal hearing sensitivity in the left ear. The audiologist reported that there was a significant decline in word discrimination ability when speech was accompanied by background noise typical of the noise in a classroom setting. The child scored in the excellent range, 96%, when speech was directed toward both ears with no background noise. His score was within normal limits, 80%, when speech was directed toward the left ear with background noise, and he scored 60% when speech was directed toward the right ear, the ear with the hearing loss, with background noise directed toward the left ear. In tests of auditory processing, the child scored within the normal range. The audiologist cautioned that such results must be viewed with caution because it was difficult to obtain a comprehensive profile of the child’s central auditory brainstem response (ABR) due to the right ear hearing loss. Central auditory processing involves interaction of both hemispheres of the auditory cortex. The left hemisphere of the child’s auditory cortex had been deprived of auditory stimulation because of the loss of hearing in the child’s right ear. She recommended that the child undergo ABR testing in order to obtain further diagnostic information pertaining to his central auditory function. On tests of auditory perceptual skills, the child scored at or above age level on all subtests. The audiologist opined that the child would experience significant difficulty understanding what the teacher said in a typical classroom setting. She indicated that preferential seating would not be beneficial for the child because his unilateral hearing loss precluded his ability to localize or discriminate sounds originating from the right side. She recommended a classroom amplification system be employed on a trial basis to increase the child’s speech discrimination ability.

        An evaluation for itinerant services for the deaf and hard of hearing was conducted on January 9, 1998 at the Eastern Suffolk BOCES. The BOCES evaluator administered several tests and observed the child during a mathematics lesson. The child scored in the average range on the tests administered, and the evaluator noted that he was able to follow directions and answer teacher questions. She also noted that the child positioned himself to hear the teacher better, but as the teacher moved around the room, it appeared more difficult for him. The evaluator reported that as the lesson increased in length, the child became distracted. She reported that the child indicated that he had difficulty hearing his friends in a group activity and in the cafeteria. She did not recommend ongoing services for the hard of hearing, but she did suggest preferential seating, an annual audiological assessment, an evaluation for an auditory trainer and a training session to orient the child’s teachers to strategies for working with a child who has a unilateral hearing loss.

        In February, 1998, the district’s Section 504 Compliance Officer offered to implement all of the recommendations found in the BOCES evaluation for itinerant services for the deaf and hard of hearing report. On February 20, 1998, petitioner, through his attorney, requested an impartial hearing.

        The hearing was held on March 19, 1998 and March 27, 1998. In his decision, the hearing officer found that the child’s hearing impairment did not adversely affect his educational performance, and that therefore, he was not classifiable under IDEA, or its state counterpart Article 89 of the Education Law. He further found that respondent had provided a free appropriate public education (FAPE) for the child, and that there was no requirement for the district to provide the assistive technology requested by petitioner, i.e. the installation of a four-speaker sound system in his son’s classroom. Finally, the hearing officer denied petitioner’s request for reimbursement of private evaluation costs, on the grounds that respondent had appropriately and comprehensively evaluated the boy. Accordingly, the hearing officer dismissed petitioner’s petition.

        Petitioner challenges the hearing officer’s decision on a number of grounds. First, petitioner claims that his son should be classified under IDEA. He argues that there is no dispute that his son has a hearing impairment, and that "hearing impairment" is included within the Federal regulatory definition of the term "children with disabilities" (34 CFR 300.7 [b][4]). That definition requires that the child's hearing impairment adversely affect the child's educational performance. Petitioner asserts that his son's hearing impairment, as well as the child's attentional difficulties, interfere with his ability to benefit from the regular education environment. He further contends that respondent is not relieved of its obligations under IDEA by providing benefits to the child pursuant to Section 504 (see Yankton School District v. Schramm, 93 F. 3d 1372 [8^th Cir., 1996]).

        Petitioner also argues that respondent’s CSE failed to consider the central auditory processing evaluation it recommended, and therefore, it did not sufficiently identify the boy’s needs. The Minutes Report from the September 23, 1997 CSE meeting indicates that the CSE recommended a central auditory processing evaluation. That evaluation was conducted in December, 1997. There is no indication in the record that the CSE reconvened to consider the evaluation report. The fact that the CSE recommended another evaluation suggests that it believed additional information about the child was warranted. The record also indicates that the boy was evaluated for itinerant services for the deaf and hard of hearing in January, 1998 to assess the educational ramifications of his hearing loss. Again, there is no indication in the record that the CSE reconvened to consider that evaluation report even though it was relevant to its determination. Although the CSE had extensive information about the child when it met on September 23, 1997, I find that it should have reconvened to review the results of the two subsequent evaluations and to reconsider its recommendation.

        Having had an opportunity to review those evaluation reports, I note that the audiologist who completed the December, 1997 central auditory processing evaluation did not observe the child in the classroom, but nonetheless opined that the child would experience significant difficulty hearing his teacher in a typical classroom listening situation. This opinion is not consistent with the testimony of the child’s teacher, or classroom observations by other evaluators, all of whom found that the child was able to listen and follow directions in the classroom setting. Having considered all of the evaluations in the record, I find that questions remain with respect to the child’s educational needs and his eligibility to be classified pursuant to IDEA and Article 89 of the Education Law.

        The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (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; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a][1]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance 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. 94-42). Respondent argues that it has met its burden of proof by showing that the child was making progress in his regular education placement, as indicated by his standardized test results and the testimony of the child’s teacher.

        Petitioner argues that his son is hearing impaired. He also claims that his son has attentional difficulties, due either to his hearing impairment or his reported ADD condition, and therefore, is eligible for IDEA under the other health impaired classification. It is undisputed that the child has a hearing impairment. However, neither the record nor petitioner is clear with respect to the extent, if any, of the child’s alleged ADD. As set forth above, the child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services. Although the record demonstrates that the child was performing at or above grade level in all academic subjects, it also shows that the child had been receiving accommodations on an informal basis until the fifth grade, when the Section 504 Plan was implemented. Some of the accommodations were designed to address the child’s hearing impairment, while others were designed to address his attentional difficulties. Petitioner argues that respondent can not provide services to a child with a disability to insure that the child is receiving an appropriate education, then subsequently determine that the disability does not adversely impact the child’s education.

        I find that petitioner’s argument is overstated. School districts can, and indeed are required to, provide supplementary services to children before referring them to the CSE (Section 4401-a [2][b] of the Education Law). In addition, Section 4401-a [5] of the Education Law provides that:

"Special education services and programs shall be provided after the appropriateness of the resources of the regular education program, including educationally related support service, speech and language improvement services and remedial instruction, have been considered."

        The principal of the school indicated that the Section 504 accommodations had been informally implemented during the time the child attended the school. The accommodations designed to address the child’s hearing impairment included preferential seating, encouraging the child to move his seat when he couldn't hear, encouraging the child to maintain appropriate eye contact, and requiring the child to repeat oral directions. The accommodations designed to address the child’s attentional difficulties included establishing a buddy system and implementing a reward system and a behavior management system as well as providing additional teacher training in ADD and advising all special area teachers of the child’s needs to insure that appropriate accommodations could be instituted. The child’s teacher testified that she attempted to implement all of the accommodations in the Section 504 Plan. She indicated that some of the strategies were good educational practice which she employed for everyone in her class, while others were employed solely for the child. She also stated that he no longer required some of the accommodations.

        Section 4401 (1) of the Education Law defines "special education" as specially designed instruction which includes special services or programs to meet the individual needs of a child with a disability. Special services or programs as defined in Section 4401 (2) of the Education Law include special classes, transitional support services, transition services, home instruction, and special teachers. Related services include audiology, counseling, occupational therapy, physical therapy, speech pathology, medical services, and psychological services. These definitions are based upon the definitions set forth in IDEA regulations (see 34 CFR 300.17 and 300.16).

        Teaching techniques and modifications which the child’s teacher used with all of the children in her classroom would obviously not fall within the definition of special education under either Federal or State law. However, the child’s teacher did indicate that at least some of the accommodations described in the child’s Section 504 Plan were implemented specifically for this child. In addition, the plan provided that all of the child’s special subject, e.g., art, music, physical education, teachers would be updated regarding the child’s needs, so that appropriate accommodations could be put in place. It further provided that his teacher " . . . should have expertise in ADD, and should be trained in this area."

        Based on the record before me, I am unable to determine whether these accommodations employed by the child’s teachers to address the boy’s hearing impairment and attentional difficulties amounted to special services or programs as defined in Section 4401 (2) of the Education Law. I find that the CSE must reassess the child with respect to his attentional difficulties to determine if he should be classified as other health impaired. The CSE must also clarify the child’s educational needs and describe the specific services that it is providing to the child to meet those needs so a determination can be made as to whether those services constitute special education services and programs as defined under IDEA and Article 89 of the Education Law. The CSE shall then make a recommendation about whether the child should be classified as a child with a disability. If petitioner disagrees with the CSE’s recommendation, he may seek review of that recommendation by requesting an impartial hearing.

        Petitioner also argues that his son is entitled to appropriate assistive technology. Specifically, he asserts that some evaluators have concluded that his son would receive an educational benefit from a classroom sound amplification system. However, the legal issue is whether respondent is required to provide an assistive technology devise (see 20 USC 1401 [a][25]) pursuant to IDEA or Article 89 of the Education Law. A board of education must provide such devices to children who meet the eligibility criteria under either statute and who require those devices in order it receive a FAPE. Should it be determined that the child is eligible to receive services pursuant to IDEA and Article 89, then the CSE must determine whether the sound amplification system is required in order for the child to receive a FAPE.

        Petitioner also argues that the hearing officer erred in finding that he should not be reimbursed for evaluation expenses. He argues that the school district relied upon the private evaluations and failed to notify the child’s parents of their right to an independent evaluation at school expense. Petitioner does not specify the evaluations for which he is seeking reimbursement, although from the CSE Minutes Report it appears that the private evaluations include the February, 1996 audiological evaluation, the May, 1997 psychiatric evaluation, and the July, 1997 developmental assessment. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense if they disagree with the school district's evaluation of the child. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of the school district's evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]). In this instance, the hearing officer found that respondent provided an appropriate comprehensive evaluation. I note that the evaluations obtained by petitioner all preceded the referral of his child to the CSE. Furthermore, petitioner does not allege that he obtained the private evaluations because he disagreed with the school district’s evaluation of the child. I find that petitioner is not entitled to be reimbursed for the cost of his son’s evaluations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled, to the extent that it found the child’s hearing impairment did not adversely affect his educational performance and he was not eligible for classification under IDEA, that the child was provided a FAPE, and that there was no requirement for the district to provide assistive technology.

IT IS FURTHER ORDERED that the case is remanded to respondent to have its CSE reconvene to reassess the child with respect to his attentional difficulties, and to clarify the child’s educational needs and describe the specific services that it provided to the child to meet those needs so a determination can be made as to whether those services constituted special education services and programs. If the CSE determines that the child is eligible for classification, then it must determine the need for assistive technology.