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Application of a CHILD WITH A DISABILITY, by her 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


Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Kit T. Wong, Esq., of counsel


          Petitioner appeals from an impartial hearing officer’s decision denying her request to declassify and place her daughter in regular education classes for the seventh grade during the 2001-02 school year. The appeal must be dismissed.

        Respondent requests that I excuse its delay in serving its answer to the petition, which was due to be served on September 7, 2001, but was not served by mail until November 30, 2001. Its attorney asserts that she did not receive the file in time to contact petitioner about consenting to an extension. Thereafter, the September 11, 2001 attack on the World Trade Center left the Corporation Counsel’s Office at 100 Church Street, New York, New York inaccessible. Based upon the fact that my decision was not delayed due to respondent’s late answer, and the well known circumstances surrounding the September 11, 2001 attack which disrupted the normal activities in lower Manhattan, I will exercise my discretion and accept respondent’s answer (Application of a Child with a Disability, Appeal No. 99-98).

        Petitioner’s daughter was referred to the Committee on Special Education (CSE) in March 1996 by her second grade teacher because of academic delays. The school-based support team at her grade school conducted social, psychological and educational evaluations. The student was thereafter classified as learning disabled and recommended for resource room services at her school. Petitioner accepted the recommendation, which was implemented in September 1996 (Transcript p. 6). The student continued to receive resource room services for the next three years. She was held over for the third grade.

        The student’s triennial evaluation was performed in January 1999. She reportedly achieved a verbal IQ score of 73 and a performance IQ score of 80. Those scores were well below the scores she had attained in 1996, when she reportedly attained a verbal IQ score of 91 and a performance IQ score of 100 (Transcript p. 11). In September 1999, the student was placed in a Modified Instructional Services-I (MIS-I) integrated class. Instruction in that class was provided by a regular education teacher, with the assistance of a special education teacher for part of the day (Transcript p. 6). Petitioner’s daughter received instruction in this setting during the 1999-2000 and 2000-01 school years.

        By letter dated May 7, 2001, petitioner requested that her daughter be re-evaluated and removed from special education (Exhibit 11). In response, the CSE re-evaluated the student. In an updated social history, petitioner reported that her daughter was doing better in school than she had previously. She indicated that she wanted her daughter to be placed in a regular education class (Exhibit 1). On May 31, 2001, the student was observed in her MIS-I class. The observer reported that the student sat quietly, and appeared to work at times (Exhibit 4).

        In a psychological evaluation performed on May 31, 2001, the student achieved a verbal IQ score of 75, a performance IQ score of 81, and a full scale IQ score of 76. The examining psychologist reported that the student’s ability to absorb and later recall school related information was in the deficient range, as was her ability to formulate abstract verbal concepts. She also demonstrated weaknesses in visually sequencing socially related events and understanding cause and effect relationships. Projective testing suggested that petitioner’s daughter was a shy, warm and sensitive youngster who was having difficulty dealing with her feelings of a lack of mastery in academic areas (Exhibit 2).

        An educational evaluation was performed on May 29, 2001. The reading portion of the evaluation consisted of two subtests, one for decoding and one for comprehension. The subtests indicated that the student was performing at a low third grade to high fourth grade level in reading. The math portion of the evaluation consisted of testing in applications and computation, and both indicated performance in the mid-fourth grade level. At the time of her evaluation, the student was in the sixth grade (Exhibit 3, Transcript p. 20). The student received final grades of 80 for English, social studies, and math, and 85 for science during the 2000-01 school year (Exhibit A). I note that in a progress report, the student’s teacher estimated the student’s reading and math skills to be at about the fourth grade level. The teacher indicated that the student’s writing was weak, and that she cried and became frustrated frequently. She recommended that the student be placed in either an inclusive class or a self-contained class (Exhibit 5).

        The CSE conducted its annual review of the student on June 21, 2001. It recommended that she remain classified as learning disabled while in the seventh grade during the 2001-02 school year. The CSE recommended a collaborative teaching program for her, which was described on the record by the Board of Education’s school psychologist as similar to the MIS I integrated class which the student had previously been attending (Transcript p. 13). The CSE did not recommend any related services, but did recommend various testing modifications (Exhibit 8). A placement was offered in I.S. 14, the student’s local junior high school (Exhibit 9, Transcript p. 7)

        Petitioner disagreed with the CSE’s recommendations. An impartial hearing was held on July 23, 2001. At the hearing, petitioner pointed to her daughter’s grades on her June 20, 2001 report card as evidence that she can make progress (Exhibit A, Transcript p. 30). Petitioner repeated her desire to have her daughter in a regular education class, and stated that it was her daughter’s desire as well (Transcript p. 30). A school psychologist opined at the hearing that the student was properly classified as learning disabled, and that she continued to require specialized assistance in school (Transcript pp. 11-12). He testified that the program recommended by the CSE would provide her with the assistance that she needed, and that it would allow her to participate in a regular education environment without the negative feelings that might attach to placement in a self-contained special education class. The school psychologist opined that the student would regress academically without special education assistance, which would also affect her self-esteem (Transcript pp. 11, 14).

        The educational evaluator who was part of the CSE opined that the student was appropriately classified as learning disabled. She reviewed the student’s standardized test results from 1996 when she was initially classified, from 1999 after she had received three years of resource room services, and from 2001 after she had been in the integrated MIS-I program, and concluded that the student had made more progress in the integrated MIS-I program than in a resource room (Transcript pp. 21-24). Since the collaborative team teaching program at the junior high school level was essentially the same as the integrated MIS-I program in elementary school, the evaluator opined that the recommended program would provide the kind of support the student required. She testified that the CSE had considered a self-contained class for the student, but had concluded that the collaborative teaching program was more appropriate for her.

        In his decision which was dated August 3, 2001, the hearing officer noted that although the student had received satisfactory grades on her report card, that document also indicated that she continued to be working below her appropriate grade level. He concluded that respondent had met its burden of proving the appropriateness of its CSE’s recommendations for the student.

        Petitioner asserts that her daughter should be declassified because she believes that her daughter can do better in a regular education program than in the recommended program. She further asserts that her daughter’s performance has not improved since she entered respondent’s special education program.

        The initial question is whether petitioner’s daughter should remain classified as learning disabled. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). Learning disabled means:

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][6]).

        The comparable federal regulatory criteria for finding that a student has a learning disability are set forth in 34 C.F.R. § 300.541, which requires that there be a severe discrepancy between a student’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 [2d Cir. 1981]; Application of a Child with a Handicapping Condition, Appeal No. 91-15; Application of the Bd. of Educ., 27 Ed Dept Rep 272 [1988]). In order to be classified as learning disabled, a student must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34).

        Having reviewed the record, I find that petitioner’s daughter meets the criteria for classification as learning disabled. There is a significant discrepancy between her expected achievement and her actual achievement.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an individualized education program (IEP) which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        I find that the student’s IEP accurately reflects the results of her evaluations and identifies how her disability affects her ability to learn. It includes annual goals that address the areas in which her weaknesses would preclude her from participating successfully in a regular education environment, e.g., a low level of reading comprehension. The remaining question is whether the CSE recommended appropriate educational services for her. I find that the CSE did so. The student clearly requires special assistance. She was initially provided with resource room services. As noted by the educational evaluator at the hearing, those services proved to be inadequate to provide the support the student required. Contrary to petitioner’s assertion, the record reveals that her daughter did make progress after placement in the integrated MIS-I program. Prior to her entry into that program, the student was reading at a low second grade level and her math skills were at a mid-second grade level. When tested in May 2001, her reading decoding was at a beginning fourth grade level and her comprehension was at a high third grade level. Her math scores showed a similar improvement during this period. Since the recommended program is similar to the integrated MIS-I program, I find that it would be appropriate for her.


Topical Index

Educational PlacementIntegrated Co-Teaching
IDEA EligibilityDisability Category/Classification
Parent Appeal
Preliminary MattersPleadingsTimeliness of Petition