Application of a CHILD SUSPECTED OF HAVING 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, Masako C. Shiono, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's son not be classified as a child with a disability. Petitioner further appeals from the hearing officer's denial of her request for reimbursement for the cost of her son's tuition at West End Day School (West End). The appeal must be dismissed.
The child was seven years old and in the first grade at West End at the time of the hearing. West End, a school for children with emotional and learning disabilities, has not been approved by the New York State Education Department to provide special education to children with disabilities.
The child was born in Israel during the Gulf War and attended preschool and kindergarten there. He is bilingual. His mother speaks English and Hebrew. His father speaks English. English was spoken in the child's home in Israel, however, the child's mother spoke Hebrew to the child outside the home. At the age of four, the child was evaluated by an occupational therapist who found that he had graphomotor delays, a delay in establishing hand preference, and some delays in balance. The child began receiving occupational therapy, reportedly with "good" results. He was also reportedly seen by a speech therapist in Israel who recommended that only Hebrew be spoken to the child in the home, but did not recommend that he receive speech therapy.
In September, 1996, the child moved with his family to the United States. He repeated kindergarten in Rodeph Sholom School (Rodeph Sholom). The child reportedly was suspended from kindergarten for six weeks during the fall because of an incident in which he allegedly reacted aggressively toward a teacher and another student. As a result of that incident, he began receiving psychotherapy twice per week. His psychotherapist referred him for a psychoeducational and language evaluation in February, 1997, because of concerns about his emotional and academic readiness for first grade. On the Wechsler Preschool and Primary Scales of Intelligence-Revised (WPPSI-R), the child achieved a verbal IQ score of 111, a performance IQ score of 108, and a full scale IQ score of 111, placing him in the high average range of intellectual functioning. The private psychologist opined that the child's performance on the WPPSI-R was an underestimation of his intellectual capacities because he tired easily, was restless throughout the evaluation, appeared worried about his performance, and worried in general.
The private psychologist noted that the child's language abilities were uneven and variable from situation to situation and from time to time. The child demonstrated excellent semantic/conceptual abilities and consistently performed in the average range on tests of verbal directions. The private psychologist reported that the child experienced problems with his receptive vocabulary and grammatical knowledge. She indicated that, given the child's bilingual background and shifts in language exposure, his vocabulary was expectedly underdeveloped. She expressed the belief that his vocabulary would greatly improve over the next year if he was consistently exposed to the English language. With respect to the child's grammatical difficulties, the private psychologist opined that the child might need more structured intervention, such as English as a Second Language (ESL) teaching. She opined that weaknesses in the child's understanding and use of morphological rules would eventually interfere with his listening comprehension, and his ability to follow instructions in the classroom. She noted that some of the child's difficulty remembering details appeared to be a function of poor auditory perceptual processing. The private psychologist further indicated that organization, sequencing and memory for details were problems for the child.
The private psychologist also reported that the child appeared to be mildly disinhibited and mildly overactive. She noted that he struggled with issues of control of his body and its functions, as well as socially related control from authority figures. She also noted that the child expressed fears surrounding his defiant acts, and he appeared to be troubled by worries and fears that he was unable to overcome. The private psychologist further noted that the child's sense of time was immature. She indicated that his school difficulties were compounded not only by bilingualism and multiculturalism, but by behavioral difficulties that appeared to be related to problems with regulating his behavior and self-control. The private psychologist recommended that the child continue psychotherapy.
The psychologist indicated that a change in schools might disrupt the progress the child had made in play therapy and in his reading group, which employed a systematic and structured multi-sensory approach to reading and writing, and which had proven successful. She further recommended that the child's progress in his language skills be monitored, and she suggested that the child be seated near his teacher where distractions were minimal. She also suggested the use of a behavioral checklist to control behavior. Additionally, the private psychologist suggested that the child begin language therapy to address weaknesses in his vocabulary, retelling skills, ability to listen to directions, auditory perceptual skills, organizational skills, and perception of time. She recommend monitoring of the child's attention difficulties and his disinhibitions. Finally, she recommended that the child be placed in a resource room while in the first grade to provide support in reading and writing.
In May, 1997, the child's psychotherapist completed a treatment summary at the request of the child's mother. He indicated that the child was seen in individual play therapy on a twice per week basis, and that the child's parents were seen approximately once a month for guidance. The child's psychotherapist opined that the child faced a formidable challenge of acclimating to a totally new social, academic and cultural environment, and that the environmental and social circumstances were important factors in understanding the child's emotional and social vulnerabilities.
The psychotherapist indicated that the child's treatment focused on his desire to be better able to regulate his emotions and to tolerate frustrations. He indicated that the child was comfortable with adults, but was anxious and limited in his contact with peers. The psychotherapist suggested that some of the child's difficulties were compounded by sensory integration issues and possibly by language difficulties. He indicated that the child was highly motivated, ambitious and engaging, but was often frustrated by the discrepancy between his desired and actual performance.
The psychotherapist reported that the child demonstrated a need to control his environment by establishing rules and structuring interactions in a one-sided authoritarian manner, but that he was gradually consolidating a sense of himself as being more in control of himself and needing less to control his environment. The psychotherapist noted that the child reportedly had significant difficulty finding his place during transitions, and that he seemed confused as to the sequence of events, and that his teachers had reported that his performance improved significantly when he was in a smaller group, where he appeared both less anxious and more able to express his ideas and to listen to others. The psychotherapist recommended that the child be placed in an educational setting where his special needs and special strengths could be accommodated. He recommended a high ratio of teachers to students, where the teachers were aware and equipped to intervene in the classroom and facilitate situations that the child might find challenging, such as negotiating with peers, transitions, and various language based complex tasks. He indicated that such a setting would help the child transition from the one-to-one relationships to which he was most accustomed to being part of a peer group. He had become much better able to articulate his feelings, especially when angry and frustrated.
The child was evaluated by an occupational therapist on May 10, 1997. She reported that the child appeared somewhat sensitive to tactile and auditory inputs, but was active and appeared to require a strong "sensory diet" of activities to help him to stay focused and pay attention. She reported that he showed more of a right hand preference for writing and drawing, and she indicated that the child could benefit from strengthening his hand muscles for grasping. On a handwriting assessment, the child had trouble spatially planning his name. The occupational therapist indicated that the child's graphomotor skills remained slightly immature for his age, and that he might need some support for lower case letter formation. The occupational therapist reported that the child had low normal muscle tone, however, his balance, strength, and gross motor function were within age expectations. The occupational therapist concluded that the child had minimal graphomotor delays as well as some sensory regulatory issues. She did not recommend that he receive occupational therapy, but she suggested that it would be helpful to monitor the child's progress in graphomotor skills during the school year.
On September 24, 1997, a private psychiatric evaluation of the child was conducted. The psychiatrist reported that the child's mood was anxious and that his defenses were counter-phobic. Although the child's intelligence appeared to be above average, he exhibited a poor sense of time, and his judgment and insight were poor. The psychiatrist diagnosed the child as having overanxious disorder with phobias and counter-phobic defenses. He recommended that the child's parents make a commitment to keep the child at the same school for at least two years. He indicated that the child required a therapeutic setting to assist him in coping with stress. He opined that the child's prognosis was good with such intervention, but guarded without it.
On October 10, 1997 the child was referred by his father to the CSE for an evaluation and placement. At the time of the referral, the boy was in the first grade at West End. A parents home language identification survey was completed on November 3, 1997 indicating that the child was bilingual in English and Hebrew.
Using information provided by the boy's parents for a social history, one of respondent's social workers reported that the child had difficulty making the transition when he moved to New York City from Israel. The child's parents believed that that difficulty, combined with their son's inability to focus and follow directions in a full class, made it difficult for him to function in kindergarten. The child's parents also believed that the Gulf War had a serious affect on their son. They described him as an anxious child who feared the loss of a parent and believed that they were in danger. The parents indicated that their son was very active, had age appropriate self-help skills and was interested in sports.
In a psychological evaluation conducted on November 18, 1997, a school psychologist reported that the child was motivated, but became fidgety, and needed to be refocused and encouraged from time to time to complete certain tasks. The school psychologist noted that the child spoke in complete sentences, and that his use of words as well as grammatical structures were age appropriate, but he evidenced articulation problems. On the WISC-III, the child achieved a verbal IQ score of 100, a performance IQ score of 108, and a full scale IQ score of 100, placing him in the average range of intellectual functioning. The school psychologist noted that the intratest scatter of subtest scores indicated a higher potential. He indicated that the child's greatest weakness was in his ability to do mental computation. Additionally, his concentration was less developed for auditory stimuli than for visual stimuli. The child's fund of general knowledge was above average. On the Bender-Gestalt Test of Visual Motor Integration, the child made six errors. The school psychologist noted that this performance was adequate and consistent with the child's overall cognitive performance. The school psychologist assessed the child's social and emotional functioning, through clinical interview, observation and review of records. He noted that the child related well to authority figures, had a well-developed sense of right and wrong, and was able to apply judgment. He also was capable of giving high-quality responses, but became disinterested and disorganized when attention was lacking.
An educational evaluator who tested the child on November 25, 1997, reported that the child attempted all tasks, but was quite fidgety and at times behaved in an impulsive manner. She reported that the child spoke in full sentences in an age-appropriate manner, but had some difficulty focusing and following oral directions. The child's reading skills were assessed to be at a mid-first grade level with low to mid-first grade decoding skills, and low to mid-second grade passage comprehension skills. The educational evaluator characterized the child as a slow, word by word reader, who employed contextual clues to help ascertain meaning from a passage. She indicated that the child would benefit from further phonics and structural analysis training. The child's writing skills were assessed to be at the first grade level. His dictation skills were lower than his expressive writing skills. The child displayed high first grade level math skills in both calculation and applied problems skills. She indicated that the child would benefit from hands on instruction in time, money and measurement, but she did not recommend that he receive any specific education instruction.
In a medical documentation form dated November 12 1997, the child's pediatrician indicated that the child had episodes of shortness of breath which were likely due to anxiety. Additionally, he indicated that child had asthma, which was well controlled. No limitations or special alerts were indicated.
The child was observed by a school social worker in a group of five students and two adults at West End on December 2, 1997. The social worker reported that the child demonstrated appropriate receptive and expressive language skills. The child followed directions well, was well-behaved with the other students, and appeared to be accepted and at ease with them. The social worker noted that at times the child's affect was flat, but that he demonstrated a nonintrusive, genteel style in his behavior in the classroom. In a group activity, the child was able to wait his turn. The child's teacher indicated that he was the highest functioning student in the class. She further indicated that he was slightly older than the other students, and slightly immature for his age. She volunteered that the child might have been bored in her class which could account for his flat affect.
A speech/language evaluation was conducted on December 16, 1997. The child was unable to process biographical questions related to residency accurately, however he was capable of using language to express his immediate wants and needs. His speech rate, fluency and articulation were within the normal range. The child's hearing was adequate for speech. The speech/language evaluator recommended that the child receive classroom stimulation to remediate areas of delay.
On December 22, 1997, respondent's CSE recommended that the child not be classified as a child with a disability, and that he be placed in general education. The CSE reasoned that the child was functioning at the appropriate grade level, notwithstanding the slight language weakness noted by the speech/language evaluator. Petitioner requested an impartial hearing on January 22, 1998.
Before the hearing took place, the child was evaluated by a private speech/language evaluator in February and March, 1998. The speech/language evaluator indicated that the child had been receiving individual language therapy once per week since February, 1997, which focused on increasing the child's ability to organize and formulate increasingly complex syntactic structures, improving his word retrieval abilities through organizational and associative language tasks, and increasing the child's ability to process complex directions and narratives. The speech/language evaluator reported that the child had made progress, but he continued to have language processing weaknesses. The speech/language evaluator noted that the child used an impulsive response style, which she believed was associated with his regular anticipation of difficulty while receiving directives or questions. On the Wide Range Assessment of Memory and Learning, the child's verbal learning recall and story memory recall were found to be in the bright average range, while his story memory recognition was in the low average range. The child achieved below average scores on the Test of Auditory Comprehension of Language-Revised (TALC-R) and on two subtests (Concepts and Directions and Recalling Sentences) of the Clinical Evaluation of Language Fundamental-3 (CELF-3), which reflected a decreased tolerance for changing grammatical structures and increasing syntactic complexity. The speech/language pathologist reported that weaknesses in the child's auditory processing skills and in organizing and storing language impacted upon his ability to follow complex directions. The speech/language evaluator opined that the child's academic progress in an increasingly challenging classroom environment would be severely impacted by this receptive difficulty. She recommended that he receive individual speech/language therapy.
A social worker who had counseled the child twice per week since September, 1997 reported that the child expressed his dislike of change, and she indicated that the change in schools, friends, language and environment had been quite stressful for him. The social worker noted that the child consistently appeared to be a very anxious child. She indicated that the child's coping mechanisms had further increased his difficulties. The social worker reported that the child was unable to complete his assignments because of unrealistic perfectionistic ideals. The social worker indicated that the child needed to maintain his idealized picture of himself as a strong, invincible young man, which lead to boastful and controlling interactions with children and adults, which were not well received by his peers and adults. Additionally, the child's vulnerable feelings exhibited themselves with a variety of complaints of imagined injuries for which he required a great deal of attention. The social worker indicated that therapy sessions were directed at helping the child to feel safe, to view his academic and creative work with more pride, and to play with children in more cooperative manner.
After several adjournments by mutual consent, the impartial hearing was held on June 16, 1998. The hearing officer rendered her decision on October 6, 1998. She found that the CSE had adequately evaluated petitioner's son, rejecting petitioner's assertion that the observation of her son was inappropriate because he was the highest functioning child in the class which was observed. She also rejected petitioner's assertion that the CSE should have consulted with the child's service providers. The hearing officer also found that the child's parents had been afforded an adequate opportunity to discuss their concerns with the CSE. She found that the child did not meet the regulatory criteria for classification as either emotionally disturbed, or learning disabled, and she upheld the CSE's recommendation that the boy not be classified. The hearing officer denied petitioner's request for tuition for the 1997-98 school year because the child was not eligible for special education services.
Petitioner appeals from the hearing officer's decision on a number of grounds. Initially, she challenges the impartiality of the hearing officer. In the petition, petitioner indicates that in October, 1998, she learned that the hearing officer's husband was employed by respondent as an assistant principal in another community school district, and that she failed to disclose this fact prior to the hearing, precluding petitioner from making a motion for the hearing officer to recuse herself. A challenge to the hearing officer's impartiality on the same grounds was recently dismissed in another appeal (Application of a Child with a Disability, Appeal No. 98-51). As I noted in that decision, I am troubled by the hearing officer's failure to at least disclose her husband's employment by respondent in Community School District 6, however, I find that her failure to do so does not afford a sufficient basis for annulling her determination involving a recommendation by the CSE of Community School District 3. Having reviewed the transcript and the hearing officer's decision, I find that there is no evidence of any actual bias against petitioner.
Petitioner raises several issues with respect to the evaluation conducted by the CSE. She claims that the evaluation was incomplete because the CSE did not speak to personnel from the schools that her son attended. Additionally, she claims that the CSE should have spoken to her son's treating psychiatrist, and that its psychological evaluation was incomplete because no formal personality testing was conducted. The record shows that the CSE attempted to contact West End, though it was not obligated to do so. While the CSE did not speak to the child's treating psychiatrist, there was no requirement that it do so. I note that the parents of a child suspected of having a disability are free to submit any evaluative reports which they have to the CSE, which must consider those reports (8 NYCRRR 200.5 [a][v]. The record shows that the CSE did consider private reports from professionals who either evaluated or treated the child. In addition, the CSE conducted its own psychological evaluation. Although the school psychologist did not conduct any formal personality testing, the CSE was free to rely upon the personality testing conducted by the private psychologist who performed the psychoeducational and language evaluation in February, 1997 (Application of a Child with a Disability, Appeal No. 96-87). Based upon the information before me, I find that the evaluation conducted by the CSE was adequate.
Petitioner also claims that the child's teacher at West End should have been present at the CSE meeting. The applicable regulations provide that the "child's teacher" must be a member of the CSE. If the child is not in public school, the school district may determine which teacher will participate in the meeting (34 CFR 300.344 note  [c]). As the child was attending private school, respondent was free to designate one of its special education teachers to serve as the child's teacher member of the CSE (Application of a Child Suspected of Having a Disability, Appeal No. 96-57). Petitioner further claims that the CSE arrived at its recommendation without parental input. I agree with the hearing officer that the record indicates that the parents were given an opportunity to present their position.
The central issue in this appeal is whether the child should be classified as a child with a disability. 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).
Petitioner argues that her son should be classified as either learning disabled, or emotionally disturbed. A learning disabled child is defined in State regulation as:
"A student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability" (8 NYCRR 200.1 [mm]).
The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). The record shows that the child's IQ is in the high average range. The record further shows that the child was in first grade, and that his academic achievement on standardized tests was at the first grade level. I find nothing in the record that demonstrates that the child had a severe discrepancy between his actual achievement and his intellectual ability. Therefore, he did not meet the criteria for classification as a learning disabled child.
An emotionally disturbed child is defined by State regulation as:
"A student with an inability to learn which cannot be explained by intellectual, sensory or health factors and who exhibits one or more of the following characteristics over a long period of time and to a marked degree:
(i) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(ii) inappropriate types of behavior or feelings under normal circumstances;
(iii) a generally pervasive mood of unhappiness or depression; or
(iv) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term does not include socially maladjusted students unless it is determined that they are emotionally disturbed" (8 NYCRR 200.1 [mm]).
I also am unable to find that the child meets the definition of an emotionally disturbed child. While he did have an incident in kindergarten that led to his suspension, the record shows that he responded positively to psychotherapy. He was able to successfully complete his kindergarten year at Rodeph Shalom. Although he was not invited to return for first grade at that school, there is no specific indication in the record that that decision was made based upon behavioral issues. The record does demonstrate that the child had difficulty becoming part of a peer group, which was an issue being addressed by his private therapist. However, it also shows that he was able to establish relationships with adults. In any event, there is no evidence that whatever emotional difficulties the child experienced had a significant effect upon his educational performance (Application of a Child Suspected of Having a Disability, Appeal No. 95-11). Based upon the information before me, I am unable to find that the child exhibited any of the characteristics of an emotionally disturbed child for educational purposes. Having found that the CSE properly recommended that the child not be classified as a child with a disability, I do not reach the issue of tuition reimbursement.
I note that the hearing officer indicated that if the CSE re-evaluated the child in the future, it should determine whether he is entitled to receive accommodations under Section 504 of the Rehabilitation Act of 1973. In dismissing the appeal, I am sustaining the hearing officer's suggestion. It must also be noted that when a child has been found to be ineligible for special education by a CSE, a copy of the CSE's recommendation is to be provided to the administrator of the public school to which the child has been assigned. The administrator must determine what, if any, educationally related support services should be provided to the child (8 NYCRR 200.4 [c][i]).
I have considered petitioner's other assertions, which I find to be without merit.
THE APPEAL IS DISMISSED.