Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the New Paltz Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw & Perelson, attorney for respondent, Marc E. Sharff, Esq., of counsel
The student was 11 years old and attending a regular fifth grade class in respondent's district when the hearing began in September 2003. He currently receives multiple educational accommodations under a plan developed pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794) (Dist. Ex. 32). The student's eligibility for special education programs and services is the subject of this appeal.
The student's current Section 504 plan was established on August 14, 2003 (Dist. Ex. 32). Testing accommodations include: directions read, directions repeated, extended time (1.5), flexible setting, access to graphic organizers when extensive writing is involved, and a scribe for extended writing tests. Program modifications, accommodations, and supplemental aids and services include: multi-sensory inputs for learning, reading, spelling, structure writing with adult guidance, access to word processor for writing, graphic organizers and brainstorming for writing, preferential seating so he is close to any notes written on board, copy of class notes, small group instruction, and repetition of instruction for new material. Assistive technology accommodations included use of an auditory trainer, as needed, via consultation with parents, access to computer and graphic organization software, and provision of books on tape.1
The social/developmental history of this student indicates that there have been ongoing concerns about the student not reading on grade level. Writing is also a concern (Dist. Ex. 5, pp. 1-2). The student attended a private preschool (Tr. p. 577). When the student turned five, he attended a public school kindergarten in respondent’s district. (Tr. p. 583). As early as the 1st grade, petitioners indicated that the student was not learning the phonetic part of the reading process (Tr. p. 520).
During the second half of the 2nd grade, petitioners removed the student from the district's school at the recommendation of the student’s 2nd grade teacher and home schooled the student (Tr. p. 597). Petitioners privately sought out audiological (Dist. Ex. 3), vision (Dist. Ex. 6), and occupational therapy (Parents' Ex. L) evaluations. Petitioners provided the student with occupational therapy (OT) to address sensory integration needs (Tr. p. 598), tutoring in phonics (Parents' Ex. J, Tr. p. 599) and 1:1 training in reading with an Orton-Gillingham (O-G) trained instructor (Tr. pp. 598-99). The student also attended an English Language Arts program, primarily for writing, on Saturday mornings (Tr. pp. 527-28).
The student attended public school in the respondent's district for the 3rd grade (Tr. p. 600) but continued the private tutoring with the O-G instructor twice per week (Tr. p. 609). Audiologic testing obtained by the petitioners indicated that the student has auditory processing weaknesses and should be treated as a child with an auditory processing disorder (APD) (Dist. Ex. 3). After petitioners shared the results and recommendations of the audiological testing with respondent's coordinator of special education (Tr. pp. 610-11), a Section 504 committee met on February 6, 2002 and devised an accommodation plan (Dist. Ex. 33) providing the student with an auditory trainer in the classroom (Tr. pp. 612-13). The student continued to attend school in the district for the 4th and 5th grades with a Section 504 plan in place.
By letter dated September 18, 2002, petitioners referred their son to the CSE for a determination of eligibility for special education programs and services (Parents' Ex. S). Respondent conducted an academic evaluation on October 16, 2002 (Dist. Ex. 7), a classroom observation on November 6, 2002 (Dist. Ex. 7, p. 2), a psycho-educational evaluation on November 12, 2002 (Dist. Ex. 4), a social history on November 13, 2002 (Dist. Ex. 5), and an occupational therapy (OT) re-evaluation on January 22, 2003 (Dist. Ex. 9). Respondent convened a meeting of its CSE on January 28, 2003 at which it was determined that an OT re-evaluation was necessary (Dist. Ex. 15). An occupational therapy educational assessment was performed on January 30, 2003 (Dist. Ex. 12).
The CSE reconvened on March 17, 2003 and determined that the student was not eligible for classification as a student with a disability "based on evaluations and report of classroom performance by regular education teacher." (Dist. Ex. 15).
Thereafter, an independent psychological evaluation was conducted at petitioners' request, with testing concluding in May 2003 (Dist. Ex. 17). Administration of the Wechsler Intelligence Scale for Children- III (WISC-III) in 2003 yielded a verbal score of 98, a performance score of 100, and a full scale score of 99 (id.). These scores were consistent with results of the WISC-III administered by the district in 2002, when the student obtained a verbal score of 98, a performance score of 95 and a full scale score of 96 (Dist. Ex. 4). That evaluation described the student as being of average intelligence, with consistent functioning across verbal and visual modalities. He was noted to demonstrate a relative weakness in aspects of executive function skills, particularly as they impact on language functioning. The student was specifically noted to be relatively weak in his capacity to attend to auditory information, process and recall sequential material, generate verbal material, and organize verbal information in a manner that is semantically and syntactically adequate. The evaluator stated that "his level of functioning remains commensurate with his ability, and many of his peers." These findings were considered by the evaluator "consistent with a language-based learning disability". Respondent's coordinator of special education testified that the evaluator advised the CSE that his diagnosis of a learning disability was a clinical diagnosis, not based on the Part 200 Regulations of the Commissioner (Tr. p. 73). In addition, a bilateral memory impairment was identified, that impacts on the student's ability to recall and/or learn visual and verbal material. Based on this evaluation, petitioners asked respondent to reconvene the CSE (Dist. Ex. 18).
On July 10, 2003, the CSE reconvened, but reached no decision due to time constraints and planned to convene another meeting (Dist. Ex. 23). By letters dated July 10, 2003 and July 13, 2003, petitioner requested an impartial hearing seeking a review and reconsideration of the CSE's decision that the student was not in need of special education services (Dist. Exs. 24, 25). On August 1, 2003, respondent reconvened a CSE and again found that the student was not eligible for classification as a student with a disability (Dist. Ex. 29, pp. 1-2). The CSE chairperson testified that despite finding the student to not be in need of a special education program and services because of "nosignificant deficits in his academic skills", that "this is a student we certainly need to keep an eye on" (Tr. p. 75-76) and the student is "at risk for lower academic achievement since these underlying cognitive weaknesses remain and will continue to jeopardize his performance particularly as the demands of school increase" (Tr. p.77).
The impartial hearing in this matter began on September 19, 2003 and concluded on April 22, 2004 after five days of testimony. The impartial hearing officer rendered his decision on July 17, 2004. This decision denied petitioners' request to classify the student as eligible for services under the Individuals with Disabilities Education Act (IDEA), determining that the student was not eligible for classification as other health impaired (OHI) or learning disabled. The impartial hearing officer determined that the student's educational performance was not adversely impacted by a disability (IHO Decision pp. 44, 46). The impartial hearing officer also found that the parents presented no authority that writing weaknesses can result in a learning disability classification (IHO Decision p. 47).
On appeal, petitioners claim that the impartial hearing officer erred in applying the burden of proof to petitioners instead of respondent during the hearing and erred in denying petitioners' request to classify the student as eligible for services. Petitioners request that the impartial hearing officer's decision be annulled; that the student be declared eligible for classification under the IDEA as OHI, learning disabled, or speech language impaired; and that the CSE be ordered to convene to classify the student and develop an individualized education program (IEP). The petitioners seek a determination of eligibility for IDEA services, in part, to obtain resource room services (Tr. pp. 649, 706-07).
The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A FAPE is available to any individual child with a disability who needs special education and related services, even though the child is advancing from grade to grade (34 C.F.R. § 300.121[e]; 8 NYCRR 200.4[c]; see also Free Appropriate Public Education, 64 Fed. Reg. 12406-01, at 12555 [Mar. 12 1999]).
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] ; see also 8 NYCRR 200.1[zz]).
A student with a learning disability is:
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 disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, 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[zz]).
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 reviewed 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. 99-74; Application of the Bd. of Educ., 27 Ed Dept Rep. 272 ). 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. 99-74; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34).
New York State regulation defines OHI as:
Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.
(8 NYCRR 200.1[zz])
A speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance (8 NYCRR 200.1[zz]).
A board of education bears the burden of establishing the appropriateness of the CSE’s recommendation that a student not be classified as a child with a disability (Application of a Child with a Disability, Appeal No. 04-028; Application of a Child Suspected of Having a Disability, Appeal No. 03-064; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child with a Disability, Appeal No. 01-007; Application of a Child Suspected of Having a Disability, Appeal No. 00-001; Application of a Child Suspected of Having a Disability, Appeal No. 94-41).
When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed. An individual evaluation mustinclude at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b]). Neither federal nor state regulations prescribe a particular set of tests, which must be used in each evaluation (34 C.F.R. § 300.532; 8 NYCRR 200.1[aa]).
Upon a review of the independent psychological evaluation (Dist. Ex. 17), I find that descriptions of this student warrant a more in-depth evaluation of the student to determine if classification as a student with a disability is appropriate. Specifically, the independent psychologist referred to the student's language-based learning disability, difficulties with executive functions, and attention deficit hyperactivity disorder (ADHD). The audiologic testing (Dist. Ex. 3) confirms an auditory processing difficulty. The record reflects that a speech and language evaluation conducted privately on February 14, 2001 (Dist. Ex. 1) only contains two subtests of the Clinical Evaluation of Language Functions-III (CELF-III) and four subtests of the Test of Language Development- Primary 3rd Edition (TOLD P: 3). The record does not reflect that sufficient speech and language testing was conducted after the results of the psychological evaluation and the auditory processing evaluation were available to respondent. I find that there is a need for a more thorough speech and language evaluation that focuses on how the student processes and interprets sound for meaning in quiet and noisy situations in the classroom. The record reveals that the student has difficulty with executive functions (Dist. Ex. 17) that requires closer examination. However, there is no formal or informal evaluative analysis of the student's strengths and weaknesses regarding executive functions, or pragmatic communication skills included in the record. In order to obtain a comprehensive understanding of the student’s needs, the CSE should evaluate the student's current speech and language functioning, with particular focus on specific auditory processing skills, executive functions, and pragmatic communication behaviors in the classroom. Moreover although an auditory trainer was recommended on the student's Section 504 plan (Dist. Ex. 32), the record reflects that the district had no documentation, records, or reports regarding it's use or effectiveness on the student's learning. No evaluation was conducted to determine if there was any difference in the student's classroom performance with the use of the auditory trainer (Tr. p. 85). His needs regarding the use of the auditory trainer should be evaluated, as well as an assistive technology evaluation to determine whether he has other assistive technology needs, for example needs related to his writing.
In addition, the student was noted to have mild ADHD (Parents' Ex. I, p. 2) and exhibited some inappropriate behaviors. Yet, the record does not reflect that a functional behavior analysis (FBA) was conducted (see 8 NYCRR 200.4 [b][v]), nor did respondent identify specific environments, situations, times of day, or the frequency of those behaviors that distracted and frustrated the student. I find on the record before me that an FBA would be appropriate.
Accordingly, I must find that the respondent failed to meet its burden to demonstrate the appropriateness of the CSE's recommendation that this student not be classified as a student with a disability because it lacked sufficient individualized evaluative data upon which to make an eligibility determination (8 NYCRR 200.4[b][v]).
I have considered petitioners' remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is annulled; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 45 calender days from the date of this decision, the CSE shall conduct the following evaluations: speech and language, assistive technology (comprehensive), and FBA; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 60 calender days from the date of this decision, respondent's CSE shall reconvene and determine the student's eligibility for special education programs and services.