04-042

        Petitioner, the Board of Education of the South Orangetown Central School District (district), appeals from the decision of an impartial hearing officer which directed petitioner's Committee on Special Education (CSE) to convene and determine that respondents' son is eligible for special education services pursuant to the Individuals with Disabilities Education Act (IDEA). The appeal must be sustained. The cross-appeal must be dismissed.

        I will first address a procedural matter. Respondents assert that the petition for review was not served in a timely manner as required by 8 NYCRR 279.2(c). I have considered respondents' argument and petitioner's excuse in its reply, and will exercise my discretion, accept the petition, and decide the appeal on the merits.

        The central issue in this appeal is whether respondents' son meets the eligibility criteria of a child with a disability for purposes of receiving special education services under the IDEA. The child was five years old at the commencement of the hearing on October 7, 2003 and attending a special education co-teaching kindergarten and receiving related services of speech-language therapy and occupational therapy (OT) at petitioner's school. The hearing ended on March 12, 2004 after 14 days of testimony. The impartial hearing officer issued a decision on May 19, 2004 finding that the June 3, 2003 CSE erroneously determined that the child was not in need of and, therefore, ineligible for special education services. I agree with petitioner that the impartial hearing officer erred in making this determination.

        When the child was about two years old, he received speech-language and special education services through the Early Intervention Program of the Rockland County Department of Health (Dist. Ex. 16; Tr. pp. 1142-43). His mother contacted the Early Intervention Program because she was concerned about her child's limited vocabulary, and because he was exhibiting tantrums and episodes of biting (Tr. p. 1140). According to a report by the child's pediatric neurologist, early intervention services resulted in substantial improvement in language development and by age two and one-half years, the child was "doing extremely well" (Dist. Ex. 9). The child's mother indicated that she met with Early Intervention Program staff before her son was three years old, and they suggested to her that the child "would not benefit" from the self-contained special education programs available to him in the district, and that she should "get a better understanding" of her son's needs before referring him to the Committee on Preschool Special Education (CPSE) (Tr. p. 1146).

        During the 2001-02 school year, when the child was three years old, he attended preschool three times per week at the Kindercare Day Care Center (Kindercare), where teachers reported low frustration tolerance, social difficulties and difficulties with sustained attention (Dist. Exs. 12, 26; Parent Ex. L). While he attended Kindercare, the parents arranged for private special education services though an individual who had worked with the child in the Early Intervention Program (Tr. p. 1147).

        In January 2002, while the child was attending Kindercare, he was evaluated by a pediatric neurologist who suggested a medication trial to address behaviors suggestive of an attention deficit hyperactivity disorder (ADHD) (Dist. Ex. 9). When he saw the child again on March 4, 2002, the neurologist reported that the child was impulsive and inattentive but that he did not find him to be hyperactive (Dist. Ex. 59). In his January 2002 evaluation report, the neurologist described the child as "bright" and noted that his score on the Peabody Picture Vocabulary Test, administered when the child was three and one-half years old, was at the five-year level chronologically (Dist. Ex. 9). The neurologist also noted that, because of the child's success in the early intervention program, he had not been continued in early intervention (Dist. Ex. 9).

        A March 9, 2002 progress report from Kindercare indicated that the child had some difficulty with attending activities, following verbal directions, transitioning from one activity to another and responding appropriately in group discussions (Parent Ex. A). The child's mother referred him to the CPSE in spring 2002 (Tr. p. 1146).

        On April 19, 2002 a preschool evaluation summary, completed by the South Orangetown Central School District Early Childhood Program when the child was three years, nine months old, noted that the child's parent reported "significant difficulties in sustained attention, poor impulse control, and a high activity level" as well as episodes of oppositional behavior (Dist. Exhibit 10). The evaluation summary also indicated that standardized test results reflected overall cognitive functioning, language abilities, and readiness skills in the average range with relative strengths in short-term memory and expressive vocabulary (id.). On the same day, an OT evaluation was conducted by the district in response to a referral by the child's mother, an employee of the district,who was concerned with her son's attentional and behavioral difficulties (Dist Ex. 11). The report also notes that the child had been diagnosed as having ADHD in February 2002 (id.). The occupational therapist who evaluated the child reported that the child interacted appropriately and was cooperative during the evaluation and, although he required "minimal redirection," his attention span was good (id.). She did not observe any sensory difficulties during the evaluation. On the Peabody Developmental Motor Scales – 2 (PDMS-2), the child's score in the 50th percentile for grasping was in the average range and his score in the 63rd percentile for visual motor integration was also in the average range. On the Miller Assessment for Preschoolers (MAP), his score in the 53rd percentile on the nonverbal index and his score in the 50th percentile for complex tasks were both in the normal range. His standard score of 89 on the Beery Developmental Test of Visual Motor Integration (VMI) yielded an age equivalency of three years, ten months, one month above the child's chronological age at the time of testing (id.).

        On April 22, 2002, a psychological evaluation was conducted (Dist. Ex. 12, Parent Ex. B). Cognitive testing using the Stanford-Binet Intelligence Scale, Fourth Edition indicated cognitive ability in the average range (composite score 104, 60th percentile), with short-term memory and expressive vocabulary identified as relative strengths. A Behavior Assessment System for Children scale completed by the parent yielded a composite score in the 94th percentile for externalizing problems, a composite score in the 86th percentile for internalizing problems, and a behavioral symptoms index in the 98th percentile. The same scale completed by the child's teacher at Kindercare yielded a composite score in the 72nd percentile for externalizing problems, in the 43rd percentile for internalizing problems and a behavioral symptoms index in the 79th percentile. The evaluator noted that the child's mother reported significant behavioral difficulties at home including impulsivity, short attention span and difficulty getting along with other children.

        An educational evaluation of the child was conducted on April 24, 2002 (Dist. Ex. 15). The evaluator described the child as "socially related" and attentive and focused throughout most of the evaluation period. The child's mother reported to the evaluator that her son had ample opportunity to play with other children and his social interactions with peers were appropriate. She also reported that his memory was "questionable" and that unfamiliar adults had some difficulty understanding the child's speech. Standardized test scores on the Learning Accomplishment Profile Diagnostic (LAPD) were within normal limits, with all subtest scores above the 50th percentile.

        A speech-language evaluation was conducted on May 8, 2002 (Dist. Ex. 16). The child's scores on the Expressive One Word Picture Vocabulary Test (EOWPVT) and the Preschool Language Scale were in the average range, with all subtest scores above the 50th percentile. His standard score of 123 on the Goldman Fristoe 2 test of Articulation was at the 98th percentile, with an age equivalent of seven years. The evaluator reported attentional difficulties during the evaluation and recommended a structured learning environment.

        The CPSE convened on May 22, 2002 and recommended that the child be classified as a preschool child with a disability and placed in an 18:2+1 integrated preschool special class five times per week for half-day sessions (Dist. Ex. 1). Comments on the child's individualized education program (IEP) note that the child's mother expressed concern regarding her son's expressive language and possible need for language remediation. The recommended classroom included the services of a speech-language therapist who provided a weekly integrated language program (Tr. pp. 186, 2001). The CPSE recommended that the child's classroom teacher monitor the child's language skills in the classroom and the CPSE would reconvene to review progress and needs (Dist. Ex. 1; Tr. p. 100).

        The child's special education teacher during the 2002-03 school year was aware of concerns about the child based upon her review of reports from his previous teacher and from the child's mother (Tr. p. 690) with whom she had numerous conversations between September 2002 and January 2003 (Tr. p. 630). Although she was aware of reports of attentional deficits and incidents of impulsivity and aggression towards peers, the special education teacher opined that the child's behaviors at the beginning of the 2002-03 school year were "not so different from the other children" in the preschool class (Tr. p. 695). She testified that respondents' son was able to follow rules and outlines (Tr. p. 694) and he was responsive and "not oppositional" (Tr. p. 695). In the classroom, the child required verbal prompts and exhibited some wandering at the beginning of the year, both of which the teacher considered typical for a child his age (Tr. p. 696).

        On November 6, 2002, the child's mother met with the special education teacher and the school psychologist for a routine parent conference. At the meeting, the mother was informed that her son was "doing nicely in class" (Tr. p. 108) and that although he required some additional support, his teacher had observed improved functioning (Tr. p. 108). At this meeting, the child's mother told the teacher and the school psychologist that the child required a functional behavioral assessment (FBA) (Tr. pp. 109, 1812). She indicated that an FBA was required because the child's IEP contained behavioral goals and objectives (Tr. p. 109). The school psychologist indicated that the child's behaviors were not interfering in the classroom setting more than might be seen with a typically developing child his age (Tr. p. 200). Staff who worked with the child had not developed an FBA prior to that time because they believed that the child's behaviors could be addressed through the structure provided by the classroom (Tr. p. 160). Nevertheless, the special education teacher and the school psychologist complied with the mother's request to complete an FBA and developed a behavior plan which was implemented on November 13, 2003 (Dist. Ex. 20). The behavior plan addressed the child's out-of-seat behavior during large group activities and his difficulty waiting his turn. In an observation of the child conducted on February 3, 2003, it was noted that during a large group activity, the child was "as attentive and in control as his classmates" (Parent Ex. C).

        On January 29, 2003, the child's pediatric neurologist recommended a trial of a new medication to address the child's attentional deficits (Dist. Ex. 59). On his January 29 progress note, the pediatric neurologist stated that "It is increasingly clear in school that he has ADHD" (Dist. Ex. 59). The neurologist had not spoken with the child's teachers (Tr. p. 1309). The child's behavior plan was updated to include an additional goal on February 10, 2003 (Dist. Ex. 20) and all goals were reported as mastered in April 2003.

        In February 2003, when the child was four years, six months old, a speech-language evaluation was conducted in response to concerns about his pragmatic language raised at a December 2002 team meeting by the child's mother and his special education teacher (Dist. Ex. 19). The evaluator reported that the child demonstrated good cooperation and attending abilities and active participation during the evaluation (Dist. Ex. 19). Administration of the Clinical Evaluation of Language Fundamentals – Preschool (CELF-P) yielded a total language standard score of 105 (63rd percentile). On the Preschool Language Scale, the child's total language standard score of 107 was in the 66th percentile. His standard score of 123 (94th percentile) represented a significant gain over the score he achieved on this same test in May 2002, when his standard score of 104 was in the 61st percentile (Dist. Ex. 16). Although evaluation results indicated that the child's pragmatic language was within normal limits (Tr. p. 311), the evaluator recommended small group therapy because the child did not appear to be comfortable using language in social settings (Tr. p. 314). The speech therapist determined that, although the child had some restrictions in his pragmatic language ability, he did not have a language delay (Tr. pp. 2003-04).

        On February 28, 2003, an OT evaluation was conducted at the request of the child's mother and his special education teacher (Dist. Ex. 21). The special education teacher reported that she did not observe difficulties in the classroom to the degree reported by the child's mother, but she requested the OT evaluation because of the mother's stated concerns and because "I worked with her so I respected her" (Tr. p. 591). The child's performance on all subtests of the Peabody Developmental Motor Scales – 2 and the Developmental Test of Visual Perception – 2 were in the average range. His score on the Miller Assessment for Preschoolers was below age level, at the 9th percentile, and indicated difficulty with motor planning, spatial organization, visualization and body scheme. The test results did not identify weaknesses sufficient to warrant OT services (Tr. pp. 428, 536) and the special education teacher did not report any concerns in the classroom (Tr. pp. 404-05). Nevertheless, the evaluator recommended OT services, noting that, although she would not typically recommend services for a child who received a below average score on only one subtest, she made an effort to "justify services" (Tr. p. 461) because the child's mother was a colleague and she wanted the mother to be satisfied with her evaluation (Tr. pp. 487-88).

        The CPSE convened on March 25, 2003 to review the February evaluation reports (Dist. Ex. 2). In addition to the speech-language and OT evaluations, the CPSE reviewed a progress report from the child's special education teacher (Dist. Ex. 22). The teacher reported that the child's classroom behavior was satisfactory and noted improvement in tolerating transitions. Socially, improvement was noted in peer interactions and play skills were reported to be satisfactory, although the teacher indicated that the child did not always spontaneously engage in verbal play with peers. Improvement was reported in the child's responses in group discussions, spontaneous verbalizations were described as somewhat restricted when adult support was reduced, and the child's length of utterances increased with self-initiated topics or topics of interest. The CPSE recommended speech-language therapy twice per week in a small group to address the child's use of social language and his use of language in narratives, discourse, and in responses to open-ended questions. The CPSE also recommended OT once a week in a small group (Dist. Ex. 2).

        Speech therapy services began at the end of March 2003 (Dist. Ex. 74) and the child attended 21 therapy sessions during the remainder of the 2002-03 school year (Tr. p. 1995). Therapy sessions focused upon teaching the child strategies to use language more effectively (Tr. pp. 2006-07). The speech therapist also interacted with the child in the classroom and observed his performance (Tr. p. 2001). When he concluded his speech therapy sessions at the end of the 2002-03 school year, the child had achieved his IEP objectives for speech and language, no longer had difficulty with pragmatic language, and did not display "any kind of difficulty in using his language in any of the school environments" and "had become an effective communicator in all school environments" (Tr. pp. 2003-07).

        The child did not begin OT services immediately after the March CPSE meeting because of a delay in obtaining a doctor's prescription (Tr. p. 469). He received six sessions of formal OT beginning in May 2003 (Tr. p. 588). However, OT modalities were incorporated into the child's classroom and OT input in the classroom was ongoing (Tr. pp. 469, 552). The occupational therapist who had evaluated the child noted that, during a post-evaluation session she conducted prior to the beginning of his formal therapy sessions, the child was very receptive to OT activities and appeared to learn skills quickly (Tr. p. 463). Therapy sessions were conducted by an occupational therapy assistant who conferred with the evaluating occupational therapist on a weekly basis (Tr. p. 490). The occupational therapy assistant had encouraged the evaluating occupational therapist to "really look into [the child's possible deficits] as thoroughly as possible" because she had had frequent conversations with the child's mother regarding the mother's concerns and considered her "a colleague that I respected" (Tr. pp. 556, 560).

        During OT sessions the child was very cooperative, able to transition well, more successful at remaining on task than some of the other children in the group, and appeared motivated to succeed and pleased when he accomplished a task successfully (Tr. p. 567). When the therapist assessed the child at the end of the year using portions of standardized tests which measured progress on his IEP objectives for OT, the child's performance was age appropriate (Tr. pp. 567-69; Dist. Ex. 27) and in certain areas above average (Tr. p. 596) and he had met all of his IEP goals for OT (Tr. p. 596). The therapist reported that the child "didn't appear to display any signs of being disabled" (Tr. p. 582) and that she "did not see any indication at all for [the child] to receive occupational therapy" (Tr. p. 593).

        The occupational therapy assistant met with the child's mother and described in detail the progress he had made. The mother described problems the child was experiencing at home. The occupational therapy assistant had not observed these difficulties in either the therapy sessions or the classroom. She advised the child's mother that she could not "make a recommendation based on what I'm not seeing" and encouraged the mother to suggest goals she thought might be appropriate for the child (Tr. p. 596).

        On May 23, 2003, the child's special education teacher conducted an educational evaluation of the child (Dist. Ex. 26). The special education teacher reported that the child had demonstrated "steady progress" towards achieving his IEP goals and that he now sought out and maintained appropriate social interactions with minimal support and was now an "active language user in the school setting." At the time of the evaluation, the child was able to maintain appropriate attention and focus for 20-25 minutes in structured tasks. The teacher administered the Learning Accomplishment Profile Diagnostic (LAPD) and all of the child's scores on this test were in the average range. Administration of the Basic School Skills Inventory – Diagnostic yielded some variability in subtest scores, with below average scores in spoken language and in writing, but the child's overall skill level standard score of 94 for the total test was in the average range.

        A May 27, 2003 OT progress report noted that the child had made progress since beginning OT services and stated that many of the child's skills had emerged within the past month (Dist. Ex. 27). His standard score of 94 on the VMI was in the average range and he had made progress on all IEP objectives for OT.

        A May 27, 2003 speech-language progress report noted progress in pragmatic language use in therapy as well as in classroom and social settings (Dist. Ex. 28). The child had demonstrated improvement in language goals and objectives within the last two months, had become more comfortable using language in a greater variety of settings, and was expected to master all language objectives by the end of the 2002-03 school year.

        After the evaluations were complete and prior to the child's annual review, the staff who comprised the child's clinical team met with the parents to review the child's progress and discuss the evaluation reports and respond to parent questions (Tr. pp. 291, 1771-72). The CPSE convened for the annual review on June 3, 2003 to review the evaluations and progress reports (Dist. Ex. 4). At the time of the meeting, the child had demonstrated improvement in all areas and had achieved all of his IEP goals. District staff who worked directly with the child did not recommend referral to the CSE but, in response to the parents' continued expression of concern, suggested referral for consideration of accommodations pursuant to a Section 504 plan (Tr. pp. 201, 1531, 1808) and participation in a general education handwriting program (Tr. pp. 508, 538, 581). The parents rejected these recommendations and requested a CSE meeting. The CSE convened on that same day (Dist. Ex. 5). The parents requested that the CSE classify their son as other health impaired (OHI) based upon the child's status as described by his pediatric neurologist. The child's mother expressed concerns about the medication the child was taking during the school day to assist with his attentional deficits (Tr. p. 1204). She indicated that the child experienced significant side effects at home when the medication wore off (Tr. pp. 1204-05, 1214), and expressed her desire to create a program for her child which would allow him to benefit "regardless if he was on medication or not" (Tr. p. 1206). The CSE determined that the student was ineligible for special education, recommended placement in a general education kindergarten, and requested consent from the parents to refer the child to the school's Section 504 team (Dist. Ex. 5).

        The day after the child ended his preschool program, the child's parents discontinued administration of the medication he had been taking to address his attentional deficits in the classroom (Tr. pp. 1218-19). In a progress report dated July 7, 2003, the child's pediatric neurologist noted that the child's father reported that his son was responding favorably to this medication (Dist. Ex. 59). The neurologist reported that the child's father's comment regarding the medication was "It's great for him." (Dist. Ex. 59).

        Respondents obtained private evaluations subsequent to the June 3, 2003 CPSE and CSE meeting, which the impartial hearing officer considered in reaching her decision.

        A private neuropsychological evaluation was conducted in several sessions between August 4, 2003 and August 28, 2003 (Parent Ex. L) when the child was five years, one month old. The neuropsychologist who conducted the evaluation had administered between ten and twenty evaluations on five-year-old children in her career before evaluating this child (Tr. pp. 882-83). Her neuropsychological evaluation of the child was the first neuropsychological evaluation she had conducted after completion of training in administration of neuropsychological evaluations (Tr. p. 822). During the evaluation sessions, the child was not taking the medication he had been administered during the 2002-03 school year for attentional difficulties in the classroom (Tr. p. 876). As part of her evaluation, the neuropsychologist requested permission to speak with the district staff who had worked with the child during the 2002-03 school year, but she was advised by the child's mother that the district would not permit staff to speak with her until the hearing was completed (Tr. p. 864). The child's mother did provide the evaluator with various evaluation and progress reports (Tr. p. 825), but the neuropsychologist did not have access to eleven documents which had been prepared during the 2002-03 school year (Tr. p. 936), which included standardized test scores within normal limits. The neuropsychologist did not have any progress reports from the child's preschool teacher during the 2002-03 school year and, at the time of the evaluation, she was not aware that the child had met all of his 2002-03 IEP objectives (Tr. pp. 873, 881). She reported that her conclusions that the child had attentional deficits were consistent with classroom reports, but had based this conclusion upon reports completed by the child's teacher in day care during the 2001-02 school year (Tr. pp. 874, 938). The record does not reflect that the neuropsychologist had access to current teacher reports, or that she was aware that the child no longer presented with the behaviors described in the report the child's mother did provide, which was written over one year before she conducted her neuropsychological evaluation.

        The neuropsychologist administered the Wechsler Preschool and Primary Scale of Intelligence – Third Edition, which yielded a verbal IQ score of 100 (average range), a performance IQ score of 114 (high average range), and a full scale IQ score of 105 (average range). In her report, the evaluator noted that the 14-point discrepancy between the child's verbal and performance scores was statistically significant. When asked about this discrepancy, the neuropsychologist testified that a discrepancy of 15 points, not 14, was considered statistically significant, then stated that a 10-point discrepancy was statistically significant, then stated that she was "not exactly sure" and relied upon a computer program to determine if score discrepancies were statistically significant (Tr. pp. 886-87).

        On the Weschler Individual Achievement Test – Second Edition (WIAT-II), the child's scores were in the average range in reading, mathematics, and reading comprehension, slightly below average in oral expression (standard score 89, 23rd percentile), and below average in spelling (standard score 79, 8th percentile). The neuropsychologist testified that the child had difficulty with writing, noting that he was able to write his name but was not able to write all the letters of the alphabet (Tr. p. 848) and confused the letters D, T, and B, a difficulty which she indicated was typical in five-year-olds (Tr. p. 893). The neuropsychologist opined that the child could not succeed in a class of 25 children (Tr. p. 860). The neuropsychologist also testified that the child had difficulty writing two-digit numbers, and suggested that this was a skill that would be introduced a few months into a kindergarten curriculum (Tr. pp. 893-94). She also testified that the child could write his name but could not write all the letters of the alphabet, a skill which is introduced in the second half of kindergarten (Tr. p. 605). She stated that the child's difficulty with writing could be due to his age and could develop over time (Tr. p. 895). The neuropsychologist testified that, for a five-year-old child, significant learning and developmental changes occurred in a short period of time, stating that "Every three months there is a drastic change with children so young" (Tr. p. 926).

        The parents' private evaluators assessed the child in isolated settings and did not have the advantage of observing the child in a classroom to determine how he functioned academically and socially in that environment (Tr. pp. 866, 1005, 1016).

        The neuropsychologist testified that one of her most significant findings was that the child was able to write his name but was not able to write all the letters of the alphabet. At the time of her evaluation, the child was five years old and about to enter kindergarten and had not yet been introduced to the kindergarten curriculum, which includes learning to write the alphabet (Tr. p. 605). The neuropsychologist also testified that the child's poor writing skills were an indication that he was at risk for failure (Tr. p. 916), after noting that the child's writing skills "definitely could develop" when he was older (Tr. p. 895).

        Respondents' son was evaluated by a private occupational therapist on three occasions from July to August 2003 (Tr. p. 751). The child was not taking medication for attentional difficulties in the classroom at the time of the evaluation (Tr. p. 804), as the child's father indicated to the evaluator that he was concerned about toxicity levels of this medication (Tr. p. 802). The private occupational therapist reported standardized test results on the Beery-Buktenica Developmental Test of Visual Motor Integration, which only identified one area of weakness on one subtest (Parent Ex. K). All other subtest scores on this assessment tool were within normal limits. She conducted a second standardized test, the Pediatric Evaluation of Educational Readiness (PEER), which consists of six subtest areas each comprised of a series of tasks (Parent Ex. K). The private evaluator reported that the child "demonstrated difficulties" performing five of the tasks presented and indicated that a sixth task was "flagged as an issue." Administration of the PEER identified difficulties with visual tracking, motor weakness, visual organization and sequencing. The evaluator failed to report whether the identified difficulties in his performance on these specific tasks resulted in a below-average score for any of the subtests, which would be significant because the child's performance on other tasks within each subtest was reported to be within normal limits. The private evaluator's anecdotal report of results identified only two tasks on the entire test instrument that the child was unable to perform, but she again failed to indicate how, if at all, this affected the child's overall score. One of the two tasks the child could not perform was writing the letters of the alphabet, which the private evaluator admitted in testimony would not have been addressed in the child's academic setting until the second half of kindergarten, at least five months after she conducted her evaluation (Tr. p. 605).

        As part of the evaluation, the child's parents completed a questionnaire identified as the Sensory Profile, which is a standardized assessment used to identify sensory processing deficits (Parent Ex. K). The parents reported difficulties with auditory, vestibular, touch and multisensory processing, as well as in body positioning and movement. The parents also reported sensory seeking behavior, inattention and distractibility, and emotional and behavioral responses to difficulty with sensory integration. The evaluator did not contact staff in the district who had worked with respondents' son during the previous school year (Tr. p. 1094).

        The private occupational therapist recommended OT to address the child's sensory deficits, despite the fact that she reviewed school reports and, on the basis of these reports, determined that the child did not require direct intervention at that time (Tr. p. 1117). She testified that she saw no evidence of the auditory sensitivity (Tr. p. 1123) or hyperactivity (Tr. p. 1126) reported to her by the child's mother. The record suggests a significant discrepancy between the child's behavior in the two environments of school and home (Tr. pp. 335, 404-05, 589, 596, 697-99, 1585).

        The child was evaluated by a private speech-language therapist on four dates in September 2003 (Parent Ex. O), after he had begun his kindergarten pendency placement. The evaluator noted in her report that the child's parents had not yet resumed administering their son's medication for attentional deficits in the classroom. The evaluator reviewed the report and progress notes completed by the speech-language therapist who had provided services to the child in 2002-03 (Tr. p. 948), but did not interact with the child in an educational setting (Tr. p. 1005), did not observe the child interacting with peers (Tr. p. 1016), and did not speak with any district staff who had worked with the child, indicating that she was under the impression that she was not allowed to do so because of the impartial hearing (Tr. p. 992). Although the evaluator indicated in her report that the child continued to exhibit inappropriate behaviors in the classroom, she based this statement on parent reports, and did not know if this had been reported by school personnel, as inappropriate behaviors had not been reported in any school reports she had reviewed (Tr. pp. 1002-04).

        The private speech-language therapist administered the Token Test for Children and the Test of Auditory-Perceptual Skills – Revised (Parent Ex. O). All scores on both tests were within or above the average range with the exception of one subtest score of 493 on the Token Test for Children which was two points below the average range. The speech-language therapist concluded that the child had a communication disorder (Tr. p. 1045). She testified that, although she considered standardized tests to be the most reliable (Tr. pp. 1041-43), she had made her determination on the basis of informal observation and was "confused by the statistics" (Tr. p. 1040). She was unable to testify conclusively whether the observations she reported were related to a language processing deficit or to the child's ADHD (Tr. pp. 1017-19). The private speech-language therapist did not observe the child in an educational setting or interacting with peers (Tr. pp. 1005, 1016), and she did not speak with the child's speech-language therapist about his performance in the classroom (Tr. p. 992). Her conclusions regarding the child's pragmatic language were based upon her own interactions with him in a one-to-one testing environment.

        On August 15, 2003, respondents requested an impartial hearing to challenge the decision of the CSE not to classify their son as a child with a disability (IHO Ex. II). The hearing began on October 7, 2003 and was held on 14 days, concluding on March 12, 2004. The resulting record included over 100 exhibits as well as a transcript in excess of 2100 pages, with testimony of 12 witnesses.

        During the impartial hearing, the child's kindergarten special education teacher in his pendency placement testified regarding the child's performance and progress in the classroom during the first weeks of school, a period coinciding with the time the private speech-language evaluation was conducted. She described the co-teaching classroom, a mainstream kindergarten with a general education teacher and a special education teacher, which consisted of 21 children, three of whom were classified (Tr. pp. 2034-35). Children attended half-day sessions three days per week and full-day sessions two days per week (Tr. p. 2035). The teacher, who had 28 years' experience in early childhood education (Tr. p. 2025), reported that the child had made a smooth transition to kindergarten, and his performance in both small group and full group activities was typical of children his age (Tr. pp. 2050-51).

        She further testified that all children in the kindergarten class were assessed at the beginning of the school year using a screening instrument identified as the SEARCH, which was developed to identify children at risk for reading disabilities because their processing skills are not yet fully developed (Tr. p. 2033). A SEARCH had been administered in May 2003 at the request of the child's mother (Tr. p. 2032). The special education teacher testified that the SEARCH was standardized on a kindergarten population, and that it was inappropriate and "unfair to the child" to administer the test while he was still in preschool (Tr. p. 2032). Results of the May 2003 SEARCH indicated that the child's auditory discrimination, eye-hand coordination and tactile abilities were intact (Tr. p. 2033). When the SEARCH was readministered in September 2003 as part of routine screening, the child's score on the SEARCH was the fourth highest in the class (Tr. p. 2049). During a parent meeting with the teacher to discuss the results of the screening, the child's mother expressed surprise when she observed her son independently stop playing with blocks and put them away, as he did not typically do that. The special education teacher stated that the child demonstrated responsibility for play materials and willingly put them away (Tr. pp. 2047-48).

        The special education teacher met with the child's mother for a parent-teacher conference in November 2003 (Tr. p. 2063), while the impartial hearing was in progress. At the time of the conference, the child had not yet resumed taking medication to address his attentional deficits in the classroom (Dist. Ex. 59). At the November 2003 conference, the special education teacher reported that the child was meeting grade level expectations and was a successful member of the class (Tr. p. 2063). The special education teacher testified that the child did not require special education services and that his ADHD did not interfere with his academic performance (Tr. pp. 2063-64, 2068). She stated that she based her opinion on his performance in the curriculum and his functioning in the classroom, as well as his functioning in less structured situations such as lunch, recess and specials (Tr. p. 2064). She also testified that, as a special education teacher, her role had been to monitor the child's progress, and that he had not required any direct intervention from her (Tr. p. 2087). The child did not have a behavioral intervention plan for the 2003-04 school year because his behavior did not warrant development of an individualized behavior plan (Tr. pp. 2086-87).

        The child's general education teacher, who had been a first grade teacher for six years and a kindergarten teacher for six years (Tr. p. 2100), also testified regarding the child's functioning in the co-teaching classroom. She testified that the child was receiving the same instruction as the other children in the general education setting (Tr. p. 2111), responded to the curriculum without difficulty, and met grade level expectations (Tr. pp. 2103, 2111). The general education teacher also testified that the child was an active participant in activities, responded to classroom routines, played cooperatively, and did not display any behavior problems or social difficulties (Tr. p. 2103).

        The hearing officer issued her decision on May 19, 2004. She made the following findings: delays in the child’s speech and language performance warranted "classification by the CSE for special education services"; classification as speech impaired was warranted; the parents' claim that the "CPSE utilized an ‘illegal aging’ out process" was unfounded; and the parents' contention that they had insufficient notice of the CPSE and CSE meetings were without merit. She ordered the matter remanded to the CSE for an appropriate classification for special education services and that the student be provided speech and language and OT as related services.

        On appeal petitioner claims that the CSE's June 3, 2003 determination that the student was not eligible for special education services was procedurally and substantively appropriate. Respondents cross-appeal claiming that the impartial hearing officer erred first, by determining that petitioner did not utilize "an illegal ‘aging-out’ process" to declassify the student, and second, by determining that proper notice was given to the parents pertaining to the CPSE/CSE meetings of June 3, 2003.

        Congress enacted the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1451 [1997]) to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet the students' unique needs (20 U.S.C. § 1400(d)(1)(A) [1997]). A child with a disability is a student who has been evaluated and been determined to have either mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services (see 34 C.F.R. § 300.7[a] [1]; see also 8 NYCRR 200.1[zz]).

        It is well settled that a board of education bears the burden of establishing the appropriateness of its CSE's recommendation that a student not be classified as a student with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of the Bd. of Educ., Appeal No. 02-066; Application of a Child Suspected of Having a Disability, Appeal No. 00-001).

        The parents sought at the June 3, 2003 CSE meeting and at the impartial hearing that their son be classified as OHI (IHO Ex. II). The record reveals that the child has been diagnosed with ADHD. A diagnosis of ADHD does not automatically qualify a student for classification. A student who has ADHD may be classified as OHI when the disorder adversely affects the student's educational performance (8 NYCRR 200.1[zz][10]; Application of a Child with a Disability, Appeal No. 02-040; Application of a Child with a Disability, Appeal No. 99-86). The impartial hearing officer found that classification as a child with a speech or language impairment, not as OHI, was warranted (IHO Decision p. 35). A speech or language impairment means a communication disorder that adversely affects a student’s educational performance (8 NYCRR 200.1[zz]).

        Upon review of the record, I find that the petitioner's CSE was correct when it determined that the child did not require special education services and programs. I find that the CSE considered appropriate evaluative data in making that determination. I further find that the record adequately demonstrates that at the time of the June 3, 2003 CSE meeting the child did not have a disability that adversely affected his educational performance. Moreover, in this appeal, I find the testimony, evaluations, and reports of the child’s education providers persuasive and consistent with a reading of the entire record. I find the opinions of the child’s teachers and related service providers more persuasive than the opinions of private evaluators rendered after June 3, 2003. The child’s teachers and related service providers were more familiar, through observation and direct delivery of services, with the child’s educational performance and educational needs. The child’s teachers and related service providers also had access to current evaluative data and progress reports that were not reviewed by the private evaluators.

        The impartial hearing officer determined that the district's staff were not persuasive because they used speech and OT evaluation results from March 2003 to recommend speech and OT services for the child, then based their decision to discontinue services in June 2003 upon the same evaluation reports. I disagree with the impartial hearing officer's finding for two reasons. First, the CPSE and CSE also reviewed May 2003 progress reports from these same clinicians indicating that the child was performing within normal limits at the time the CPSE and CSE convened. The clinicians were present at both meetings, and they described the child's present performance levels. Secondly, the clinicians testified that their March 2003 evaluations as well as their day-to-day observations of the child did not identify a need for speech and OT services for the child. The CPSE did not recommend services in March 2003 on the basis of needs identified in the classroom, but because the child's mother strongly requested them and the district staff wished to be responsive to the mother, who was a colleague.

        When the CPSE convened on March 25, 2003, it reviewed the child's April 22, 2002 psychological evaluation, an April 24, 2002 social history, an April 24, 2002 educational evaluation, a February 19, 2002 OT evaluation, a February 28, 2002 OT evaluation, a February 14, 2003 speech-language evaluation, and a February 28, 2003 OT evaluation (Dist. Ex. 2). Standardized test results in all of the evaluations were in the average range and would not of themselves have resulted in a recommendation for additional services for the child (Dist. Ex. 2). The CPSE recommended the related services of speech-language therapy and OT in response to concerns raised by the child's mother, who reported deficits which were not observed in the classroom but were, according to the mother, exhibited at home (Tr. pp. 335, 404-05, 461, 487-88, 531, 536, 553, 556, 589, 596, 628, 691, 697-99, 702, 723, 735, 1585). When the CPSE convened in June 2003 for the child's annual review, all clinicians who worked directly with the child on a regular basis provided updated progress reports based upon careful monitoring of the child's performance and progress. They testified that they had been particularly meticulous in their monitoring respondents' child because of their desire to be responsive to needs identified by the child's mother who was their colleague (Tr. pp. 556, 596, 697-99, 735). Based upon these thorough observations, all of the clinicians reported that, after provision of the recommended speech-language and OT services for a brief period of time, the child demonstrated improvement in the minor areas of deficit the clinicians had been able to identify on the basis of the mother's reports (Tr. pp. 320, 323, 332, 489-91, 509, 537, 568, 577, 593, 650, 714-18). The record supports these clinicians' testimony that the child made progress because he was responsive to the additional services provided, and also because of his development of new skills as a part of normal maturation for a child his age (Tr. pp. 320, 463, 473, 567, 577, 681, 926, 931).

        At both the CPSE and the CSE meeting on June 3, 2003, committee members reviewed the child's January 9, 2002 neurological report, an April 22, 2002 psychological evaluation, an April 24, 2002 social history, a May 16, 2002 classroom observation report, a May 27, 2002 progress report, a February 10, 2003 FBA, a February 14, 2003 speech-language evaluation, a February 28, 2003 OT evaluation, a March 18, 2003 classroom observation report, and a May 23, 2003 educational evaluation, a May 23, 2003 classroom observation report, (Dist. Ex. 4). The May 23, 2003 educational evaluation and the May 27, 2002 OT progress report both included standardized test scores, and the May 23, 2002 speech-language progress report contained information regarding the child's progress on his IEP goals and objectives (Dist. Exs. 26, 27, 28).

        The child's special education teacher, his speech therapist, his occupational therapy assistant and the school psychologist who had developed his behavior plan were all present at the June 2003 CPSE and CSE meetings. They reviewed reports they had prepared, and contributed to CSE and CPSE discussion of the child's present performance levels and mastery of IEP goals and objectives based upon their assessment results as well as their ongoing contact with the child in an educational setting (Dist Ex. 6; Tr. pp. 128, 328-29, 332, 552, 579-80, 650, 662, 1581, 1583, 1613, 1630, 1631, 1742, 1772). Their reports, observations and recommendations were based upon recent evaluations and progress reports and were also based upon their ongoing observation of the child in his educational setting. All of the clinicians who worked directly with the child testified that the child's behavior and performance was typical of a child who was capable of succeeding in a general education kindergarten without special education services, and whose ADHD did not interfere with his academic performance (Tr. pp. 124, 127, 128, 200, 506, 509, 577, 579-80, 656, 666, 689, 714-19, 727, 1554, 1585, 1587, 1809, 2003-04, 2006-07). Their testimony was supported by testimony of the general education and special education kindergarten teachers who were providing services to the child in his pendency placement during the 2003-04 school year. These teachers, who had extensive classroom experience with children of kindergarten age (Tr. pp. 2025, 2100), testified that, at the beginning of the 2003-04 school year, before the child's parents had resumed administering the medication for ADHD they had discontinued at the end of the 2002-03 school year (Dist. Ex. 59), the child's performance was typical of children his age and he did not exhibit any academic, behavioral or social/emotional needs for which special education services were required (Tr. pp. 2049-51, 2063-68, 2086-87, 2103, 2111).

        As to respondents' cross-appeal I concur with the impartial hearing officer's determination and find respondents’ claims to be without merit. Respondents assert that they were not given proper notice of the purpose of the June 3, 2003 CPSE and CSE meetings. The written notice given to the parents, contrary to their assertion on appeal, indicates that discontinuance of services might occur (Dist Ex. 43). Respondents also assert that the district improperly allowed the student to "age out" of eligibility for preschool services, yet respondents provide no argument or legal authority, persuasive or otherwise, in support of this bare assertion.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that she found the child to be eligible for classification as a child with a disability and ordered speech-language therapy and OT as related services be provided to the child.

THE CROSS-APPEAL IS DISMISSED.