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Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Antoinette W. Blanchette, Esq., of counsel


         Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) to declassify petitioner's son, and which denied petitioner's claim for an award of tuition reimbursement for the 1997-98 school year. The appeal must be dismissed.

        Petitioner's son was born in Chile, and adopted by petitioner when the child was four months old. He is now 12 years old. The boy attended respondent's P.S. 234 for the early elementary grades, where he was placed in regular education classes. At the hearing in this proceeding, petitioner testified that her son was overwhelmed in the second grade, and that his score on a city-wide reading test was at the 11th percentile. The child was initially referred to the CSE in the fall of 1994, when he was in the third grade. Shortly after the child's referral to the CSE, petitioner unilaterally removed her son from respondent's schools and enrolled him in the Mary McDowell Center for Learning (McDowell), a private school which has not been approved by the State Education Department to provide instruction to children with disabilities.

        On December 15, 1994, the CSE recommended that petitioner's son be classified as learning disabled, and placed in respondent's modified instructional services-I (MIS-I) program, with speech/language therapy. Petitioner reportedly challenged the CSE's placement recommendation. In any event, a CSE representative in a prior proceeding acknowledged that petitioner had been reimbursed for her expenditures for the child's education for the two school years prior to the 1996-97 school year (Exhibit B).

        In March, 1996, the child was evaluated by a school psychologist, who noted that the child was taking Ritalin for an attention problem, and who reported that the child's behavior and motivation were appropriate during the evaluation. The child achieved a verbal IQ score of 101, a performance IQ score of 106, and a full scale IQ score of 104. Although the child demonstrated a relative weakness in vocabulary and verbal fluency, his overall functioning level was in the average range. His visual motor integration skills were consistent with his IQ scores, although his pencil grip was poor. The child's responses to questions on the Sentence Completion Test indicated that he was aware of his difficulties in school and had a poor self-image about his performance in school. The child was described as being preoccupied with winning. A few days before the school psychologist evaluated the child, the child's psychiatrist indicated in a letter to petitioner's attorney that the child had a neurologically based attention deficit disorder, a neurologically based receptive and expressive language disorder, and a neurologically based central auditory processing disorder (Exhibit C). He did not explain the basis for his statement. The psychiatrist also indicated that the child's performance had improved while taking Ritalin, but that he still required intensive remediation in a small, quiet classroom.

        In June, 1996, petitioner's son was evaluated by a speech/language pathologist. His speech articulation and language skills were found to be adequate. The child initiated conversations and answered questions appropriately. The evaluator recommended that the child no longer receive speech/language therapy (Exhibit 14).

        The CSE recommended that the child be placed in a regular education program with resource room services once per day and small group counseling once per week during the 1996-97 school year. Petitioner challenged that recommendation, and an impartial hearing was held. While that proceeding was pending, the child was observed in McDowell by one of respondent's educational evaluators on January 14, 1997. The educational evaluator noted that there were some articulation errors in the child's speech, but that he appeared to be functioning academically and socially in a manner similar to that of his classmates. She reported that the child's teacher had indicated that the child was not hyperactive, but that he "tuned out" on occasion. The education evaluator observed that petitioner's son remained on task. She noted that the boy's teacher had indicated that he had auditory processing delays and required concrete instructions which were repeated for him.

        On January 29, 1997, the educational evaluator evaluated the child. She reported that the child had made progress since his previous evaluation in March, 1996. On the Kaufman Tests of Educational Achievement, the boy achieved grade equivalent (and standard) scores of 7.8 (124) for reading decoding, 5.6 (107) for reading comprehension, 4.5 (102) for mathematical computation, 4.3 (98) for mathematical applications, and 4.6 (98) for spelling. When tested, the child was in the middle of the fifth grade. The child manifested a delay of approximately one and one-half years in his visual motor integration skills, but his cursive writing was properly spaced with adequately formed letters. The evaluator reported that the child could write a simple paragraph with proper grammar and punctuation. The child's score on a test which measured his short-term auditory memory was above his age expectancy level. His listening skills appeared to be at the appropriate grade level. The evaluator indicated that the child appropriately attended to task during the evaluation, but needed refocusing and made silly comments as the evaluation progressed. She recommended that he be placed in either a full-time or part-time regular education program.

        The child's progress report from McDowell for the first half of the 1996-97 school year (Exhibit 2) indicated that he had made significant progress in completing his homework and arriving at school on time. Upon arrival, he was reportedly able to quickly organize himself and become focused upon the task at hand. The report also indicated that he had made steady academic progress and was an eager participant in class discussions. His handwriting had improved, and he was able to develop his ideas into interesting and well written stories. His ability to compromise and work with his classmates had also improved. I note that an updated social history revealed that the boy was being privately counseled. The child's speech/language therapist reported that the child often engaged in silly behavior during his speech lessons, and had difficulty waiting for his turn to respond. The therapist indicated that the child continued to have difficulty with verbal sequencing, word finding, figurative speech, and the ability to predict outcomes. The child's occupational therapist reported that the boy could be silly and uncooperative at times, but he had developed good gross motor skills and was skilled in a game requiring eye hand coordination. In an occupational therapy evaluation which she performed in February, 1997, the therapist indicated that the boy had demonstrated appropriate gross motor skills and had performed well on a visual perception test. She opined that the child did not need occupational therapy.

        On March 5, 1997, the child was re-evaluated by a school psychologist, who reported that the child's motivation was erratic during the evaluation, and that he at times exhibited "passive oppositionalism". The child reportedly made sporadic eye contact, and his speech was comprehensible, but not always clear. Projective testing and an interview with the child revealed signs of some anxiety and depression. The child reportedly told the school psychologist that he did not like school because he did not like to work. The school psychologist reported that the child manifested some environmental fear, at least some of which was a projection of his underlying anger, and that the child's fear fueled his regressive striving for protection and nurturance and his oppositionalism. He opined that the child's regression resulted in a lack of investment of mental energy in age-appropriate strivings for independence and mastery. The boy reportedly projected a sense of isolation and remorse about a lack of peer relationships.

        In a report to the CSE dated March 18, 1997, the child's pediatrician indicated that the child had normal vision and hearing. He did not provide any medical diagnosis, or indicate that the boy required any medication or special precautions.

        The child had received speech/language therapy at St. John's University Speech and Hearing Center, at petitioner's expense, since February, 1996. In April, 1997, a therapist at St. John's reported that the boy's speech intelligibility had improved, and his ability to comprehend and answer verbal questions had significantly improved. However, the therapist recommended that the child continue to receive therapy once per week to address his language and auditory processing deficits, as well as deficits in his speech intelligibility (Exhibit D).

        In the spring of 1997, the child achieved grade equivalent scores of 6.3 for vocabulary and 5.3 for comprehension on the Gates-MacGinitie Reading Tests - Third Edition. On the Stanford Achievement Test, he received grade equivalent scores of 5.2 for concepts of numbers, 5.7 for computation, and 6.4 for mathematics applications (Exhibit 13).

        The CSE conducted its annual review of the child on May 8, 1997. The child's teacher at McDowell participated by telephone in the annual review. She reportedly advised the CSE that petitioner's son was reading at a fourth grade level, and that his reading decoding skills were weaker than his comprehension skills (Exhibit 10). His teacher also advised the CSE that the child did mathematical calculations slowly, but accurately, and that he needed to work on independence, cooperation, and time. She indicated that the child had difficulty in group activities because of his inflexibility, and that she had observed his oppositionalism and lack of motivation. The teacher recommended that the child continue to receive special education instruction for one more year. The CSE was also aware of an oral report by a McDowell school psychologist, who indicated that the child had auditory processing difficulties and trouble working in small groups. She acknowledged that his achievement test scores were close to grade level, but asserted that the child required structure, organization, and predictability.

        The CSE recommended that the child be declassified because his academic functioning was "within age/grade appropriate levels" (Exhibit 9). Although it did not recommend that he receive any special education service in making the transition to regular education, the CSE did recommend that certain testing modifications be employed in the child's regular education placement. Those modifications included testing in a group of no more than 10 children, having his test directions and instructions read and reread to him, and doubling the allotted time for completing any test of 30 minutes or more. At the hearing in his proceeding, the CSE designee testified that those modifications were intended to ease the boy's transition from a small special education facility to a larger regular education program. I must note that recommending test modifications for a child who is being declassified is not an inconsistency (see Exhibit 15). Respondent's notice of recommendation indicated that the child would be offered a placement in P.S. 2. I note that two CSE members testified that they believed that the child would attend I.S. 70, a small junior high school in Community School District 2, where the child resided. Neither CSE member could explain why the notice referred to P.S. 2. However, the apparent error in the notice of recommendation would not be a fatal flaw in respondent's procedure if the child was appropriately declassified.

        In a June, 1997 progress report (Exhibit 12), the child's teacher at McDowell indicated that the child appeared to be happier and better able to relate to his teachers during the second half of the 1996-97 school year. He reportedly still had some difficulty working in small groups, and liked to be the center of attention in larger groups. His teacher reported that the boy's work throughout the year "… was excellent when he felt motivated to do it." She further reported that although the child did have difficulty learning and required extra help and clarification, his lack of consistent, sustained effort and desire to do his work was an obstacle. The teacher asserted that the boy needed the structure provided by a small class and the support provided by extra teachers. She also asserted that completing homework had again become difficult for the child. The teacher further asserted that the boy was not reading on grade level. She reported that he could write complex sentences, with correct punctuation, in paragraphs which were based upon one idea, but that he was often unwilling to write more than the minimum required of him. The teacher reported that the child did not have much self-confidence in mathematics, and would give up before he had even finished reading the instructions for problems. He also engaged in inappropriate behavior at times during mathematics instruction.

        In August, 1997, the hearing officer in the prior proceeding which was brought to review the CSE's recommendation for the 1996-97 school year rendered her decision. She noted that the CSE believed that the child was being held back in the more restrictive setting of McDowell, but she rejected that position and found that respondent had failed to demonstrate that the child could succeed in a large, regular education classroom. The hearing officer in that proceeding further found that the child's individualized education program (IEP) for the 1996-97 school year did not adequately address the child's distractibility and the deficits in his language and organizational skills. She also found that McDowell met the boy's special education needs, and she directed respondent to reimburse petitioner for her tuition expenditures during the 1996-97 school year.

        Petitioner did not accept the CSE's recommendation for the 1997-98 school year, and re-enrolled the boy, at her expense, in McDowell for the 1997-98 school year. On September 11, 1997, petitioner requested an impartial hearing in the present proceeding. The hearing was adjourned once at the request of both parties, and a second time at petitioner's request. It began on March 3, 1998, and it concluded on May 5, 1998. In her decision which was rendered on June 12, 1998, the hearing officer reviewed the criteria for classification as a learning disabled child (34 CFR 300.541; 8 NYCRR 200.1 [mm][6]), and concluded that petitioner's son did not meet those criteria. She noted that he had ended the 1996-97 school year on grade level for reading and mathematics, and found that his most significant problem was completing his homework, which did not warrant the provision of special education to the boy. While she upheld the CSE's recommendation to declassify the child, the hearing officer found that the boy was eligible to obtain an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973. Noting that the CSE believed that the child should have the benefit of testing modifications, the hearing officer indicated that he might also require additional declassification support services, such as counseling (see 8 NYCRR 100.1 [q]). Since she found that the child should no longer be classified, the hearing officer dismissed petitioner's claim for tuition reimbursement for the 1997-98 school year. The hearing officer did order respondent to consider the child's need for a Section 504 accommodation plan for the 1998-99 school year to assist him in transitioning to a regular education program.

        Petitioner challenges the hearing officer's determination that the CSE properly recommended that her son be declassified. She asserts that the child was in need of full-time special education during the 1997-98 school year, and that he was learning disabled because he exhibited a significant discrepancy between his potential and actual achievement levels. Petitioner contends that her son's disability manifests itself primarily by his organizational and semantic difficulties. She alleges that he has auditory processing delays and difficulty expressing his ideas clearly. She further alleges that the child stopped taking Ritalin in June, 1997, and that he is distractible, particularly in a large group.

        Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that the child no longer be classified as a child with a disability (Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 97-90; Application of a Child with a Disability, Appeal No. 97-96). I note that on June 4, 1997 the Individuals with Disabilities Education Act (20 USC 1400 et seq.) was amended to prescribe certain procedures to be followed when a school district proposes to declassify a child. Those statutory provisions do not apply in this appeal because the CSE made its recommendation for declassification prior to June 4, 1997. The Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 did require that the CSE evaluate the child prior to changing his placement. I find that the CSE complied with that requirement.

        The issue which I must now determine is whether the information which is in the record supports the CSE's recommendation. In doing so, I am aware that some of the evidence upon which the CSE and the hearing officer relied in making their respective determinations in this proceeding was in the record of the prior proceeding, e.g., the January, 1997 progress report from McDowell. While the hearing officer's determination in the prior proceeding about the child's needs for the 1996-97 school year is final (34 CFR 300.509), it does not follow that the CSE or the hearing officer in this proceeding was precluded from reaching a different determination with regard to the child's needs for the 1997-98 school year.

        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). As noted above, the child's psychiatrist advised petitioner's attorney that the child had a neurologically based attention deficit disorder, a neurologically based receptive and expressive language disorder, and a neurologically based central auditory processing disorder. He did not reveal what, if any, tests he had administered to establish that the child had such disorders, or his qualifications for making determinations about the latter two kinds of disorders. I note that petitioner testified at the hearing in this proceeding that her son stopped taking Ritalin for his attention deficit disorder in June, 1997, because he didn't appear to need it (May 5, 1998 Transcript, page 79). At the hearing, one of respondent's educational evaluators, who had observed the child at McDowell on December 2, 1997 testified that the child's teacher told her that the child did not need to take Ritalin to control his distractibility in school (Ibid., page 105). Both of the evaluators who observed the child at McDowell testified that they had not seen signs of the child's distractibility, nor did a school psychologist who observed the boy in a reading group at McDowell while other students walked by the group on December 2, 1997.

        The speech/language progress report from St. John's (Exhibit D) indicated that an auditory processing disorder was "evidenced", and that the child had a language processing deficit which was characterized by difficulties in word finding skills, receptive vocabulary, and phonemic synthesis. I note that the child had previously been discharged from speech/language therapy, and that the St. John's report did not refer to any standardized test results, nor did it describe the severity of the child's alleged speech/language deficits. Although the progress report referred to articulation, language, and auditory processing deficits, the therapist's description of what had been done with the child revealed that most of the therapy was provided to improve his articulation, volume, and expressive language. These services were reportedly being provided to improve his reading decoding skills and his encoding (spelling) skills. However, the child's standardized test results indicated that the child did not have significant deficits in either reading decoding or spelling. Indeed, his reading decoding skills were more than two years above his grade level (Exhibit 5). At the hearing, the school psychologist member of the CSE was questioned about the St. John's report. She testified that a CSE member with a background in speech/language pathology had opined to the CSE that the child's speech/language difficulties were subtle, and were not severe enough to warrant the child's classification as speech impaired, or his receipt of speech/language therapy. Upon the record which is before me, I must concur with that opinion.

        I have reviewed the testimony of the administrator of McDowell and the child's teacher for the 1997-98 school year. Both witnesses testified that the child did not self-advocate, i.e., ask for help when he needed it, although the administrator also testified that the child acted out to obtain individual attention. Both witnesses cited the child's failure to complete many of his homework assignments as a significant problem. Although there was some suggestion that the child may have had difficulty completing his assignments because of organizational difficulties, it is also clear from the record that the child's motivation, or lack thereof, substantially affected his performance in school and in completing homework assignments. His teacher testified that the child was "highly motivated when he chooses to be" (May 5, 1998 Transcript, page 44).

        While the child appears to have some unresolved emotional issues, I find that there is no evidence in the record which would justify his classification as emotionally disturbed. There is also no support in the record for the classification of learning disabled because there is no evidence of a significant discrepancy between his ability and achievement (34 CFR 300.541; 8 NYCRR 200.1 [mm][6]). The child's standard scores on the Kaufman Tests of Educational Achievement in January, 1997 (Exhibit 5) correlated quite closely with his IQ scores. I have also considered whether the child would have been appropriately classified as other health impaired (see 8 NYCRR 200.1 [mm][10]), by virtue of his reported attention deficit disorder. I find that the record does not establish that his condition has adversely impacted upon his performance to the extent that he required special education or related services during the 1997-98 school year. Accordingly, I must sustain the hearing officer's determination that petitioner's son did not meet the criteria for classification as a child with a disability during the 1997-98 school year. In reaching that conclusion, I considered petitioner's assertion that a recent progress report from McDowell, which was dated February, 1998 (Exhibit 17), was written "with an optimistic slant" so petitioner could use it to secure an appropriate mainstream placement for her child during the 1998-99 school year. I have not relied upon Exhibit 17 in making my decision in this appeal.

        Petitioner also challenges the CSE's failure to recommend "transitional", i.e., declassification support, services for her son. When a CSE recommends that a child be declassified, State regulation provides that the CSE's recommendation shall:

"(a) identify the declassification support services, as defined in section 100.1 (q) of this Title, if any, to be provided to the student; and/or the student's teachers; and (b) indicate the projected date of initiation of such services, the frequency of provision of such services, and the duration of such services, provided that such services shall not continue for more than one year after the student enters the full-time regular education program" (8 NYCRR 200.4 [c][1][iii]).

        Declassification support services may include psychological services, social work services, speech and language improvement services, non-career counseling, and other appropriate services. At the hearing, the school psychologist who had evaluated the child on March 5, 1997 testified that, in his opinion, the child could have made the transition to a regular education class even without counseling or other supportive services, but he acknowledged that the child would have to become accustomed to different expectations and a high level of functioning in a regular education classroom. Given this child's motivational difficulties, I concur with the hearing officer's determination that the child might have benefited from the declassification support service of counseling. Therefore, I find that the CSE should have recommended that the child receive that service. However, I find its failure to recommend the non-special education declassification support service does not afford a basis for an award of tuition reimbursement for the 1997-98 school year, because such an award would have to be premised upon a finding that petitioner's son was a child with a disability during that period.


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