99-020

         Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent’s committee on special education (CSE) that her son should not be classified as a child with a disability. The appeal must be dismissed.

        The child was in the third grade at respondent’s School No. 33 and nearly 10 years old at the time of the hearing. He was born in Puerto Rico, and has reportedly had a life long seizure disorder, which may have been the result of the combination of congenital measles and birth anoxia (R-6). A pediatric neurologist who examined the boy in November, 1994 reported that the child also had an attention deficit hyperactivity disorder (ADHD) with aggressive tendencies, a psychomotor delay, mild asthma, and learning disabilities with possible mental retardation. He further reported that the child also had a tremor in his bilateral upper extremities. The pediatric neurologist expressed concern that the medication to control the child’s seizure disorder was having a significant detrimental effect on his ADHD, and recommended a different combination of medications. The results of an EEG conducted during the examination were consistent with a tendency toward a focal seizure disorder. A second neurologist, who saw the boy in February, 1996, opined that he appeared to have a partial complex seizure disorder with secondary generalization (R-73).

        The child attended kindergarten in respondent's School No. 5 during the 1994-95 school year. In a speech/language evaluation conducted on May 23, 1995, the speech/language pathologist noted that Spanish was the dominant language spoken in the child’s home, but that the child was considered to be bilingual. The child received scores from one to three years below his chronological age on all tests of his expressive and receptive communication skills. The evaluator noted that the child’s speech was intelligible with careful listening. She indicated that misarticulations, distortions due to a lateral lisp, and the Hispanic-English dialect affected the child’s speech intelligibility. She recommended that the child receive speech/language therapy focusing on language enrichment and articulation.

        The child was initially referred to respondent’s CSE by his parents in June, 1995 because they were concerned about his delayed academic skills and hyperactivity while in kindergarten. He was evaluated during a summer program in July, 1995 by a summer diagnostic team which did not have access to the child’s cumulative folder. The child was tested in Spanish, though it was observed that he had already learned some English. The school psychologist member of the summer diagnostic team, noted that the child’s speech was fairly intelligible. On the Differential Abilities Scales (DAS), the child obtained a verbal standard score of 65, a non-verbal standard score of 73, and general conceptual score of 73, placing him in the far below to low average range of cognitive functioning. The school psychologist noted that the child’s verbal DAS test scores could have been somewhat depressed because a nonstandardized translation of the test was used. The child’s nonverbal reasoning skills were assessed to be good, but his fine motor skills were weak when he attempted to copy line drawings. On the Test of Auditory-Perceptual Skills (TAPS), the child achieved language age scores of 7-6 for sentence memory and 6-11 for word memory. However, his language age for interpretation of directions and processing was 4-0. On the Woodcock-Johnson Achievement Test - Revised, the child earned grade equivalent scores of K.0 for letter word identification and K.4 for applied problems. His age equivalent score on the Draw A Person Test was 6-0. The school psychologist concluded the child’s verbal abilities were his most significant weakness, and recommended maintaining the child in his current educational setting with close monitoring of his academic progress in the areas of acquisition of reading and fine motor skills.

        The child continued at School No. 5 for first grade during the 1995-96 school year. While in that grade, he received additional support from a teacher of English Speakers of Other Languages (ESOL). On a teacher and parent comment card dated November, 1995, the child’s teacher commented that the child had made steady progress in reading, which she noted, was quite an accomplishment because of the child's high rate of absenteeism. He was reportedly absent for 10 days during the first marking period of the school year. She further noted that the child paid attention in class, was an eager learner, and had improved his printing, but he was having problems with addition. On November 14, 1995, the CSE recommended that the child not be classified as a child with a disability.

        The child was evaluated by an audiologist on January 18, 1996. The audiologist indicated that the child had a fluctuating hearing loss which was expected to cause hearing difficulties in instructional situations. She recommended that the boy receive preferential seating in the classroom to enable him to have a clear view of all available visual cues. In February, 1996, the child’s teacher reported that the child was beginning to fall behind in school because of his absences for medical appointments. I note that the boy's records indicate that he was absent from school for 5 days between November, 1995 and February, 1996, but do not reveal if he was absent for part of the day to go to his appointments. The teacher noted that the child had difficulty blending words, that he had trouble answering comprehension questions, that he continued to have difficulties in math, and that he required extra help in class. In March, 1996, the child was provided with home/hospital tutoring because seizures and asthma prevented him from attending school. The record indicates that he was absent from school for 2 days between February and June. The child successfully completed first grade.

        In September, 1996, the child returned to School No. 5 for second grade. In November, 1996, his teacher reported that the child was working at approximately a first grade level in reading, math and the other subjects, because he had allegedly missed so much school while in the first grade. The child’s teacher further reported that the child's reading was improving, but that he still had not learned the basic addition and subtraction facts. She asked the child’s parents to help their son learn his math facts, and to ensure that he did his homework every night. In January, 1997, the child’s teacher indicated that he was working very hard, and had made some progress in English and math. She stressed the importance of the child’s attendance in order for him to succeed. The teacher reported in June, 1997 that the child was reading at a beginning second grade level and understanding math concepts at a second grade level. The child’s teacher noted that the child’s improved attendance had a positive affect on his academic performance, but commented that the child would have done better had he completed his homework regularly. I note that the record indicates that the child had 21 excused and 6 unexcused absences during the 1996-97 school year.

        The child repeated second grade at respondent's School No. 33 in a dual language regular education program during the 1997-98 school year. The dual language program was described in the record as two classes at the same grade level working together, one with a Spanish dominant teacher an the other with an English dominant teacher. Students received instruction in the content areas in Spanish and English on alternate days. On February 26, 1998, the child's teacher reported that the child's pre-academic or readiness skills were below his age level, but his reading skills were at grade level and his math skills at grade level. She also reported that the child had difficulty with his social and emotional skills, that his speech was segmented and illogical at times, that he had difficulties transferring his thoughts to written form, and that his handwriting was illegible at times. The child’s teacher rated the child’s overall performance as below average, and his classroom performance in the lower third of the class. In a subsequent report dated March 4, 1998, the child’s teacher indicated that the child’s average was 70% in reading and math, and 80% in science/social studies and Spanish.

        The child’s teacher referred the child to the CSE in March, 1998 at his mother’s request. On the referral form, the child’s teacher noted that the child was being referred due to his low academic performance and his difficulties focusing in class. In a classroom observation conducted on March 24, 1998, the building vice principal noted that the child initially appeared distracted, but that after several moments he focused his attention to the blackboard where the teacher was demonstrating math problems. The child volunteered to complete a problem on the board and to answer questions. He acted appropriately when called upon. The vice principal also noted that the child listened appropriately to teachers and peers. The child was screened by a speech/language pathologist on May 6, 1998. His speech articulation, voice, and fluency skills were described as being within normal limits, and he received average or above scores on a test of his language skills.

        An academic evaluation was conducted on May 8, 1998. The evaluator noted that the child was taking medication for his attention deficit and seizure disorders, and had tubes in his ears. He observed that the child spoke and understood oral English and Spanish, but did not read or write in Spanish. His academic skills were in English. The child achieved grade equivalent (and standard) scores of 2.2 (82) for broad reading, 2.7 (86) for broad mathematics, and 1.7 (77) for written language skills on the Woodcock-Johnson Tests of Achievement-Revised. His instructional level in reading was at the second grade level. The child’s calculation skills were in the low average range. He was able to solve applied math problems at the second grade level. The evaluator noted that the child was a multisensory learner, and that he would benefit from direct instruction and daily practice in spelling.

        In a psychological evaluation conducted on May 6 and 13, 1998, the child achieved a verbal IQ score of 118, a performance IQ score of 137, and a full scale IQ score of 130 on the Spanish version of the WISC-R, placing him in the very superior range of intellectual functioning. On the Test of Auditory Perceptual Skills-Revised, the child’s scores for auditory processing (thinking and reasoning) fell within the borderline or low average range, but his overall auditory perceptual quotient fell within the average range at the 62^nd percentile. On a separate test of his perceptual processing and memory, the boy achieved a grade equivalent score of 4.1. With respect to the child’s social and emotional functioning, the school psychologist reported that the child was capable of adequate social and emotional adjustment. Results of projective measures indicated that he had adequate self-esteem. The psychologist noted that the child had a strong need to form lasting and meaningful relationships with others. Emotionally, he was resilient and able to persevere, which helped him to cope with feelings of frustration and negative feedback associated with his school work. The psychologist reported that the child would benefit from tutoring, especially in the area of written language.

        A psychosocial assessment was conducted on May 14, 1998 based upon an interview with the child’s mother. The child’s mother advised the certified social worker that she believed her son needed support services because of his low academic performance, focusing difficulties, and medical needs.

        The CSE convened on May 18, 1998. The CSE minutes note that a translator was present at the meeting. The child’s mother stated that her son avoided homework due to fatigue and hand tremors. The minutes reflect, however, that school personnel had not observed that behavior, and that they believed that the child was capable of completing his class work and could write for up to one hour in class. His achievement was described as average for his grade placement and he displayed readiness for third grade. Neither occupational nor speech therapy was recommended, but an evaluation was scheduled to address the possible side effects of the medications the child was taking for seizures, asthma and ADHD. The minutes note that the child’s auditory processing and writing needs were not significantly impacting his overall progress, but that an accommodation plan could be considered in the future if needed. The CSE again recommended that the child not be classified.

        The child's report card for the 1997-98 school year indicates that he was absent from school for a total of 19 days, most of which were in the first quarter of the school year. He achieved satisfactory grades in each quarter of the year, and his work habits were generally satisfactory. The child's teacher reported that he always tried hard and was a pleasure to have in class (R-52).

        At the end of the 1997-98 school year, a comprehensive assessment of the child was conducted by an evaluation team from The Developmental Unit at The Genesee Hospital (Evaluation Team) at his parents' request. In the communication assessment, which was completed on May 27, 1998, the speech/language pathologist reported that the child’s language comprehension and expression were markedly diminished. She further noted that the child exhibited poor verbal reasoning skills which contributed to his weak vocabulary understanding skills. The child also demonstrated word retrieval difficulties. The child’s expressive communication was described as having a dysfluent quality because he repeated words and phrases when attempting to recall information from memory. Verbal organization and articulation difficulties also contributed to the child’s dysfluent communication style. The speech/language therapist strongly recommended that the child receive individual and small group speech/language therapy, and that he receive an audiological evaluation. She also suggested various techniques and strategies to address the child’s language processing, expression and memory difficulties.

        The assessment also included a pediatric neurodevelopemental evaluation which was conducted on June 10, 1998. Developmental screening revealed that the child had a lateral lisp and articulation difficulties, and made significant grammatical errors when speaking. The pediatric neurologist reported that the boy evidenced visual tracking problems, and difficulty with his fine motor coordination skills. However, I note that she also reported that the child's eye-hand coordination was normal. She observed that the child had a tremulousness of the right hand during the evaluation. The pediatric neurologist concluded that the child would require support for writing, memory and attention and reading skills.

        The educational evaluation portion of the assessment was conducted on July 28, 1998. The educational consultant observed that the child had retrieval difficulties, his vocabulary appeared sparse, he had weak motor skills, and he exhibited short term and active working memory difficulties. Additionally, she observed that he appeared fatigued and required extended time to process information. The child achieved grade equivalent (and standard) scores of 2.3 (87) in word identification, 1.5 (81) in word attack and 1.8 (86) in passage comprehension on the Woodcock Reading Mastery Tests-Revised. The educational consultant noted that the child had a slow rate of response and a slow reading rate. While his comprehension was good for explicit information, the child required support for inferential reasoning. With respect to written expression, the child scored within the average range, but the educational consultant noted that his output was quite brief. On the Kaufman Test of Educational Achievement, the child achieved grade equivalent scores of 1.6 on mathematical applications and 2.5 for computation. The educational consultant noted that the child's grasp of math facts was weak. On the Test of Written Language-3, the child achieved percentile scores of 37 for contextual conventions, 25 for contextual language, and 37 for story construction. The consultant reported that the story which the boy wrote for her was brief, but in the average range. The child’s visual motor integration skills were assessed to be within the average range, however, weak pencil control and spatial planning difficulties were noted. The educational consultant indicated that the child required additional educational support to meet the demands of the third grade curriculum. She opined that the child would benefit from a multisensory learning approach with experiential learning where information would be presented in slow, small, manageable units. She also recommended testing modifications of extended time, directions read and clarified, and administration in a separate location. The educational consultant recommended various techniques and strategies to address the child’s behavioral issues, and his academic and attention difficulties, most of which I must note are simply good teaching techniques.

        The Team Evaluation Summary Report also included the results of a psychological evaluation during which the child achieved a verbal IQ score of 74, a performance IQ score of 102, and a full scale IQ score of 86 on the WISC-III, placing him in the low average range of intellectual functioning. The test was administered in English. The Evaluation Team concluded that the child had a significant language-based and neurologically based learning disorder. The Evaluation Team diagnosed the child as having a receptive and expressive language disorder, an articulation disorder, a seizure disorder, a developmental reading disorder, a developmental coordination disorder and significant processing deficits. The Evaluation Team recommended an audiological evaluation, ongoing speech/language support, reading support, ongoing neurological and psychiatric follow-up, consideration for possible occupational therapy evaluation and treatment, and classification as other health impaired, with supportive services for all content areas.

        The child entered third grade at School No. 33 in a dual language regular education program. He received grades of A+ in Art, A in physical education, B in mathematics and music, C+ in listening-speaking and social studies, and C in reading and writing process for the first marking period. The teacher commented that the child had participated in all learning activities and was reading.

        An audiological evaluation was conducted on September 29, 1998. The evaluator noted that the child’s mother had no concerns regarding her son’s ability to hear. She reported that the child had normal hearing bilaterally. The child’s word recognition abilities were assessed to be good bilaterally at average speaking levels in a quiet listening situation. However, the child’s performance was reduced when tested under less than ideal listening conditions similar to those in a classroom. The evaluator recommended that the child should have preferential seating in close proximity to the teacher and in clear view of manual communication and available visual cues.

        On September 30, 1998, the child was referred to the CSE by his parents. They requested that the CSE reconsider its May 18, 1998 determination not to classify their son in light of the assessment conducted by the Evaluation Team at The Genesee Hospital Developmental Unit. In a classroom observation conducted on October 19, 1998, the vice-principal indicated that the child appeared focused on the lesson and followed the directions of the teacher. She noted that the child interacted appropriately with the teacher, worked quietly and was focused on completing his work. Another classroom observation, completed on October 21, 1998, noted that the child followed directions, routines and rules, that he attended well, and that he had no negative interactions with his peers.

        In a teacher input report dated October 21, 1998, the child’s teacher indicated that the child appeared to have some difficulty with speech, and that he was easily distracted by his surroundings. She rated his overall performance as average, and his classroom performance in the middle third of the class. The child’s teacher rated the child as being at grade level for English and math, and at age level for readiness skills. He was below age level for communication skills.

        On November 2, 1998, respondent’s Pupil Personnel Services Team (PPST) commented that the child could be classified as other health impaired, and that he needed a 15:1 ESOL classroom program. The PPST indicated that the child’s needs included improving academics, receptive processing, spelling, reading and written language. It also noted that the child displayed good behavior in school.

        The CSE met on November 13, 1998. The meeting minutes note that the child’s mother was concerned about her son’s frustration with school because he told her that he did not understand or remember what he had learned. The child’s mother indicated that her son experienced difficulty with writing, reading, and speech, and that he had hand tremors. The child’s teacher reported that the child was an average third grade student who functioned well in her class, but sometimes needed focusing. She indicated that the child took a long time to complete assignments, but that he was not significantly different from her other students. The child’s teacher expressed concern about the child’s articulation errors. She indicated that the child’s academic performance was the same whether he was instructed in English or Spanish. The CSE recommended that the child not be classified, noting that the child’s ADHD and seizure disorder did not appear to negatively impact his academic performance. An occupational therapy evaluation was recommended. The minutes also reflect that the CSE believed that the child might be eligible for speech therapy as an educationally related support service (see Section 3602 [32] of the Education Law), and that an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 could be developed if needed.

        On December 9, 1998, the child’s mother requested an impartial hearing. The hearing was held on January 28 and 29, 1999, and the hearing officer rendered his decision on February 13, 1999. The hearing officer found that the child was achieving satisfactorily at grade level and that he should not be classified for special education purposes, notwithstanding the fact that he clearly had a number of physical difficulties.

        Petitioner appeals from the hearing officer’s decision. She asserts that her son should be classified as a child with a disability because he meets the regulatory definition for classification as other health impaired, speech impaired and learning disabled. 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).

        It is undisputed that the child has a seizure disorder and an ADHD, as well as articulation difficulties. The parties disagree as to whether the child has a specific learning disability. However, the issue is not whether the child has a particular condition, but whether the child’s educational performance is adversely impacted by such condition to the extent that he requires special education and/or related services. As the hearing officer noted, the parties disagree about the child’s educational needs and performance. The private assessment conducted by the Evaluation Team placed the child in the low average range of intellectual functioning. His standardized test scores from that assessment show that he was functioning near or slightly below grade level. The Evaluation Team diagnosed the child as having a receptive and expressive language disorder, an articulation disorder, a seizure disorder, a developmental reading disorder, a developmental coordination disorder and significant processing deficits. The Evaluation Team recommended that the child should be considered as other health impaired and receive supportive services for all content areas. I note that the Evaluation Team did not observe the child in his classroom setting, although it did review a form completed by one of the child’s teachers. I also note that the Evaluation Team administered the tests to the child in English, although he has been instructed in both English and Spanish.

        On the other hand, the psychological evaluation conducted by respondent’s CSE was administered in Spanish. The results placed the child in the very superior range of intellectual functioning. Standardized test results show that the child was functioning at or above the second grade level except in dictation and broad written language where he achieved grade equivalent scores of 1.7. The record also shows that the child’s absentee rate was high and that he did not always complete his homework. Given that the child was able to perform at or near grade level when he missed so much schoolwork, it appears that the results of the testing administered in Spanish are a more accurate representation of the child’s actual ability. If the child’s cognitive abilities were below average, it would be difficult to maintain his present level of academic performance. Moreover, Spanish is the dominant language spoken in the child’s home, and he is instructed in English only on alternate days, except for language arts which is instructed solely in English. The school psychologist testified that the test results indicate that the child’s dominant language is Spanish, and that it is not uncommon for students exposed to two different languages to receive test scores which indicate significant delays in language structure or vocabulary in the non-dominant language.

        The child’s second grade teachers at School No. 33 testified that the child was an average student. They jointly recommended that the child be promoted to third grade. The child scored well in math, science and social studies in the classroom, and conveyed that he understood the content and skills that were being taught. The child’s third grade teacher also testified that the child’s overall performance was average. She indicated that he did not always turn in his homework, and that frequent absences at the beginning of the year affected his performance. . She further indicated that the child was moved up to the middle reading group because he performed well in the lower group. . The child’s teacher did not notice that the child had any writing difficulties. With respect to the child’s speech, she noted some irregularities, but was able to understand him. She testified that the child became distracted at times, but that his behavior was not unusual for a third grader.

        The record shows that the child’s educational performance has consistently been in the average range, despite a history of frequent absences and failure to complete homework. The child’s teachers indicated that his performance would improve if he completed his homework and had fewer absences. Both the private assessment and respondent’s academic evaluations show that the child was functioning at, near or slightly below grade level. Though his IQ scores place him in the superior range of intellectual functioning, and his academic performance is in the average range, it is not clear that the child requires special education services. The child’s health concerns provide an explanation for his frequent absences, but there is little explanation in the record for his failure to complete homework. These issues could be addressed without the need for special education services. Based upon the record before me, I am unable to find that the child’s medical condition adversely impacted his academic performance to the extent that he required special education and/or related services. Having found that the child’s medical conditions did not adversely impact his academic performance, it is not necessary that I address each specific classification requested by petitioner. I find that respondent met its burden of establishing the appropriateness of the CSE’s recommendation that the child should not be classified as a child with a disability.

THE APPEAL IS DISMISSED.