04-098

            Petitioner, the Board of Education of the Wappingers Central School District, appeals from the decision of an impartial hearing officer which annulled the recommendation of its Committee on Special Education (CSE) that respondent’s daughter not be classified as a student with a disability, directed the CSE to classify the child as a student with a disability, and ordered it to reimburse respondent for 65 percent of her daughter’s nonresidential tuition at the Oakwood Friends School (Oakwood) for the 2003-04 school year.  Respondent cross-appeals from the impartial hearing officer’s determination that the tuition reimbursement award should be reduced by 35 percent.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

            Respondent’s daughter was 12 years old and receiving accommodations pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l][1998] in a seventh grade regular education class at Van Wyck Junior High School (Van Wyck) at the commencement of the hearing in November 2003.  In January or February 2004, during the course of the hearing, respondent unilaterally withdrew her daughter from Van Wyck and enrolled her in Oakwood (see IHO Decision, p. 1; Tr. pp. 183-84, 491).  Oakwood has not been approved by the Commissioner of Education as a school with which school districts may contract to educate students with disabilities. At the time of the hearing, the student was not classified as eligible for special education services and classification is a matter of dispute.

           The student has been diagnosed with attention deficit hyperactivity disorder (ADHD) (Dist. Ex. 29 at p. 8), dysgraphia (Dist. Ex. 29 at p. 8; Parent Exs. S, JJ), a generalized anxiety disorder (Dist. Ex. 29 at p. 8), Asperger’s syndrome (Parent Exs. HH at p. 1; JJ), a Pervasive Developmental Disorder (Tr. pp. 310-14) and has demonstrated significant processing deficits in the areas of primary visuospatial processing including perception of spatial orientation, spatial tracking and spatial memory and visuomotor integration (Dist. Ex. 25 at p.11; see also Dist. Exs. 29 at p. 6, Dist. Ex. 31 at p. 3; Parent Exs. X, Y at p. 4). Current speech-language (Dist. Ex. 19 at pp. 3-6; see also Parent Ex. II) and occupational therapy (Dist. Ex. 20) evaluations indicate, respectively, moderate language based learning deficits in some areas of language characterized by difficulty organizing and producing verbal and written narratives (Dist. Ex. 19 at p. 4) and deficits in visual motor coordination (Dist. Ex. 20). Administration of the Wechsler Intelligence Scale for Children–III (WISC-III) on June 10, 2003 yielded a verbal IQ score of 124 (in the superior range), a performance IQ score of 96 (in the average range) and a full scale IQ score of 112 (in the high average range) (Dist. Ex. 25 at p. 18).

           Prior to her enrollment in Oakwood, respondent’s daughter had been continuously enrolled in respondent’s schools.  She reportedly demonstrated attending problems in kindergarten (seeDist. Ex. 25 at p. 1) at petitioner’s Gayhead Elementary School (Gayhead) (see Tr. p. 532). These problems continued in the 1997-98 school year when the student was in the first grade and at the end of that school year a report from a private psychologist indicated that the student had an ADHD and visual-motor coordination problems (Dist. Ex. 25 at p. 2; Parent Exs. Q, X).  A follow up cognitive and educational evaluation by a school psychologist in July 1998 indicated that the student might benefit from section 504 accommodations and should be evaluated by an occupational therapist (Parent Ex. Y at p. 4).  Petitioner’s section 504 committee met on or about September 1998 when the student was beginning the second grade and determined that the student should have preferential seating and an occupational therapy evaluation (Parent Ex. MM).  Subsequent to that evaluation, respondent approved a section 504 accommodation plan in November 1998 that included provisions that the student receive occupational therapy twice a week (Parent Exs. Z, PP).  Respondent testified that in March 1999, petitioner changed the student’s class assignment from a regular education second grade class to an inclusion class (Tr. pp. 539-40, 546).  In June 1999, when the student was finishing the second grade, petitioner’s section 504 committee amended the student’s section 504 plan to include counseling for anxiety associated with school work in addition to the occupational therapy (Dist. Ex. 1; Parent Exs. BB, QQ; Tr. p. 541).   The student continued in an inclusion class during the 1999-2000 school year when she was in the third grade (Tr. pp. 541, 545-46) and also in the 2000-01 school year when she was in the fourth grade (Parent Ex. EEEE).  She continued to receive occupational therapy during those two years (Tr. pp. 548, 549; Parent Exs. CC, DD).  An inclusion class was reportedly not available for the student during the 2001-2002 school year and she was in a regular education fifth grade class during that year (Tr. pp. 552-53). The student’s section 504 plan for that year included ten sessions of counseling and occupational therapy once a month for at least the first quarter (Parent Ex. FFFF).  Petitioner’s section 504 committee met in June 2002 in preparation for the student’s sixth grade placement at Van Wyck (Dist. Ex. 34; Tr. pp. 554-56).  At that time, the section 504 committee discharged the student from occupational therapy, determined that she should continue to be provided with 10 sessions a year of counseling, and have another section 504 meeting at Van Wyck in September 2002 at which any additional section 504 plan accommodations would be established (Dist. Ex. 34; Tr. p. 555).  Beginning in the second grade and extending until the end of the fifth grade, in addition to the receipt of counseling and/or occupational therapy, the student’s section 504 plan made provision for a number of accommodations including preferential seating, the breaking down of complex instructions, untimed testing, and copies of notes (Tr. pp. 564-66; Parent Ex. EEEE).  The student reportedly received mostly grades of A or B from first through fifth grades  (Tr. p. 534; Dist. Ex. 25 at pp. 2-3).  

            In August 2002, prior to her daughter’s beginning the sixth grade at Van Wyck, respondent requested in writing that she be referred to petitioner’s CSE (Tr. pp. 566, 570). Respondent followed this up in September with a letter requesting that the CSE and section 504 committee provide her daughter with a speech and language evaluation, an assistive technologies evaluation, a neuropsychological educational evaluation and a  written expressive language evaluation (Parent Ex. RR).  The record indicates that respondent had referred her daughter to petitioner’s CSE previously in September 1998 when the student began second grade (Tr. pp. 538-39; Parent Ex. NN).  At that time, the CSE determined that respondent’s daughter was not eligible to be classified as a student with a disability because she did not exhibit an “educationally handicapping condition” (Parent Ex. NN; Tr. p. 539). Respondent requested an impartial hearing and the matter was apparently resolved by the agreement of the parties for the student to receive additional accommodations and placement in an inclusion class in March 1999 (Tr. pp. 539-40).  

             Petitioner’s CSE met on October 1, 2002 (Dist. Ex. 9 at p. 1).  At that meeting, petitioner’s CSE reviewed a number of reports and other information including a September 2002 psychological evaluation prepared by a school psychologist, a report detailing classroom observations of the student on September 19 and 23, 2002, written reports from four of her teachers, a social history prepared in September 2002, and a hearing and vision report from November 2001 (see Dist. Exs. 4, 5, 6, 7, 9 at p. 2, Dist. Ex. 31).  An occupational therapy screening and a speech-language evaluation were also prepared in September 2002 (see Dist. Ex. 8, Dist. Ex. 25 at p. 4, Dist. Ex. 29 at p. 3), but the record does not indicate whether the CSE reviewed them at its October 1, 2002 meeting.  At this meeting, the CSE determined not to recommend classification (Dist. Ex. 9 at p. 1).  However, at respondent’s request, the CSE recommended that an independent evaluation be conducted (Tr. pp. 572-73, 575; Dist. Ex. 9 at p. 2). 

              As a result of the October 2002 CSE meeting, a private psychologist evaluated the student and prepared a neuropsychological evaluation report in November 2002 (Dist. Ex. 29) and an addendum to that report in January (Dist. Ex. 30).  Petitioner’s CSE met on December 10, 2002 and reviewed the independent evaluation as well as updated teacher reports (Dist. Ex. 12).  The CSE again determined not to classify respondent’s daughter as a student with a disability. The CSE minutes indicate that the determination was based on the CSE’s conclusion that “educational impact is not present at this time” (Dist. Ex. 12 at p. 2).  However, based on respondent’s request, it recommended an independent occupational therapy evaluation (Tr. p. 584; Dist. Ex. 12 at p. 1).  

             The record reveals that petitioner’s section 504 team met in January 2003 and developed a list of accommodations for the student for the 2002-03 school year (see Dist. Ex. 33; Tr. p. 131).  The list of accommodations included provisions for a set of school books at home, a breakdown of complex directions if requested by the student and as needed, preferential seating when practical, completion of lengthy assignments on a computer when practical, assistance with organizing the student’s notebook at her or respondent’s request, and extended test time as needed (Dist. Ex. 33).  It also provided for four individual counseling sessions and six group counseling sessions between January 22, 2003 and June 2003 and liaison services as necessary among the school, the student’s physicians, and perhaps her private therapist (id.).

             The CSE met again on February 4, 2003 (Dist. Ex. 16).  The minutes of the meeting (Dist. Ex. 16) indicate that at that time the CSE reviewed the results of a private occupational therapy evaluation conducted in January 2003, samples of the student’s school work, a January 21, 2003 letter from the student's pediatric neurologist (Parent Ex. HH), and an addendum to the student’s November 2002 neuropsychological evaluation (Dist. Ex. 30; see also Dist. Ex. 29). The CSE minutes report that the committee concluded that the considered reports did not support classification and that as a result the CSE determined not to classify the student (Dist. Ex. 16).

             On February 14 and 19, 2003, a private speech-language pathologist evaluated the student (Dist. Ex. 19 at pp. 3-6).  On March 18, 2003, the school psychologist who conducted the student’s psychoeducational evaluation in September 2002 advised respondent and the CSE that the body of her evaluation did not properly report the student’s test scores on the Diagnostic Achievement Battery–Third Edition (DAB-III) (Dist. Ex. 32).  The letter indicated, however, that the correct scores had been attached to the original report (id.).  On March 26, 2003, the student was seen by a psychiatrist at Saint Francis Hospital (see Dist. Ex. 19 at p. 2). 

             On March 31, 2003, respondent wrote petitioner and requested “an emergency CSE meeting as soon as possible” (Dist. Ex. 19 at p. 1) and the CSE met on April 8, 2003 (Dist. Ex. 21).  At that meeting, the CSE reviewed the February 2003 speech-language evaluation, the school psychologist’s corrected report, and the psychiatrist’s report of his March 2003 consultation with the student (id.).  The CSE also reviewed an April 7, 2004 letter from St. Francis Hospital and Health Centers (Dist. Ex. 20) that reported the results of the student’s January 2003 occupational therapy evaluation (Dist. Ex. 21).  The CSE, which included two of the student’s teachers, concluded that the additional information did not support the classification of respondent’s daughter as a student with a disability and determined not to classify the student (id.).

             At the request of respondent, a neuropsychologist conducted an extensive evaluation of the student over four sessions during May and June 2003 and prepared a detailed evaluation (Dist. Ex. 25) which included an extensive background of the student’s educational history and summary of numerous prior evaluations of the student.  Administration of the WISC-III yielded a verbal IQ score of 124 (in the superior range), a performance IQ score of 96 (in the average range) and a full scale IQ score of 112 (in the high average range) (Dist. Ex. 25 at p. 18).  The evaluator noted the 28-point difference between the student's verbal and performance IQ scores (Dist. Ex. 25 at pp. 7, 18).  The evaluator estimated the student’s general intellectual capacity to be in at least the 91st percentile (Dist. Ex. 25 at p. 7).  The report noted evidence of significant processing deficits in the areas of primary visuospatial processing including perception of spatial orientation, spatial tracking and spatial memory and visuomotor integration (Dist. Ex. 25 at p. 11).  WISC-III testing yielded subtest scores at the 9th percentile (in coding), and at the 25th percentile (in symbol search and mazes), as well as a Perceptual Organization Index score in the 55th percentile and a Processing Speed Index score in the 18th percentile (Dist. Ex. 25 at pp. 7-8, 19).  The student scored in the 25th percentile in the Finger Windows and at the 1st percentile on the Jordan Left Right Reversals Test in the 1st percentile (Dist. Ex. 25 at p. 8).  The evaluator noted that the student copied a complex geometric figure from right to left in a segmented fashion, without regard to the overall configuration, and with significant distortions (id.).  On tests of memory function, the evaluator reported that while the student did well overall, she had trouble with two particular learning tasks in which she scored in the 37th percentile on the Children’s Memory Scale (Dist. Ex. 25 at pp. 8, 21).  The evaluator also concluded that the student had strength in the areas of language and verbal abstract reasoning. On the Clinical Evaluation of Language Function–III (CELF-III) test, the evaluator indicated that the student “demonstrated consistently strong skills, with subtest scores from the 75th to the 98th percentile” and in a word association task the student scored in the 84th percentile (Dist. Ex. 25 at p. 8).

              Based on her testing, the evaluator concluded that the student’s academic skills were strong (Dist. Ex. 25 at p. 11). In reading, the student scored at the 92nd percentile in the Woodcock-Johnson word attack test (Dist. Ex. 25 at pp. 9, 17). On the Gray Oral Reading Test, the student’s accuracy score was at the 91st percentile and her reading rate score was at the 75th percentile (id.).  The student scored at the 73rd percentile in word reading on the Wechsler Individual Achievement Test (WIAT) (id.).  In tests of reading comprehension, the student scored at the 77th percentile in the Stanford Diagnostic Comprehension test and the 75th percentile in the GORT (Dist. Ex. 25 at pp. 9, 10, 17).  In tests of vocabulary, the student scored at the 72nd percentile in the Stanford Diagnostic Vocabulary Test (Dist. Ex. 25 at pp. 9, 17).  In writing skills, the student scored at the 92nd percentile in spelling in the WIAT and at the 79th percentile in a test of written expression (Dist Ex. 25 at pp. 11, 17).  In tests of math skills, the student scored in the 95th percentile in mental arithmetic and computations and the 91st percentile in mathematics reasoning (Dist. Ex. 25 at pp. 10, 17). 

             The evaluator noted that while the student was cooperative and highly motivated she “talked inconsistently, almost compulsively” and her “response style was quick and impulsive” (Dist. Ex. 25 at p. 7).  She also reported evidence of mood disturbance with marked anxiety and some depression (Dist. Ex. 25 at p. 11).  The evaluator concluded that the student’s history and findings were consistent with specific developmental visuospatial and visuomotor learning disabilities, or processing deficits, attentional and organizational deficits consistent with an ADHD, and temperament issues including emotional sensitivity, anxiety, inflexibility, and limited social perception consistent with Asperger’s syndrome (Dist. Ex. 25 at pp. 11-12).

              The evaluator made a number of recommendations including direct instruction in organizational techniques and study skills and daily support with homework and test preparation, extra time for classroom and standardized tests, and the opportunity to write her answers on the test form (Dist. Ex. 25 at p. 12).  She also recommended a word processor for taking notes and doing written assignments at home and modifications in standard homework practices (id.).  She indicated that the student would benefit from involvement in a small structured social program to learn social and teamwork skills and recommended inclusion in a social skills group (id.). She also recommended a psychiatric consultation to explore options for psychopharmalogic treatment and supportive psychotherapy to improve self-understanding and self-esteem (id.).

              On August 12, 2003, respondent wrote to petitioner’s CSE Chairperson (Dist. Ex. 23).   She asserted that her daughter “exhibited learning disabilities” and requested a complete evaluation (id.).  She wrote to Van Wyck’s principal on September 1, 2003 making the same request when a meeting had not been scheduled as of that date (Parent Ex. NNN).  On September 8, 2003, petitioner’s CSE scheduled a CSE meeting for September 16, 2003 for the purpose of an initial referral (Dist. Ex. 26).  By letter dated September 11, 2003, respondent provided the school psychologist with a copy of the June 2003 neuropsychological report and asked that it be reviewed at the September 16, 2003 CSE meeting (Dist. Ex. 24).

              Petitioner’s CSE met on September 16, 2003 (Dist. Ex. 27).  According to the minutes of the meeting, the CSE reviewed the June neuropsychological evaluation and considered the test results in that evaluation (id.).  The CSE also considered the student’s current section 504 plan (id.), which the CSE Chairperson testified included the same services and accommodations as the plan developed in the 2002-03 school year (Tr. pp. 130-31; see also Dist. Ex. 33).  The minutes indicated that the CSE believed that the testing did not support the student’s classification, that the CSE felt the student was off to a good start for the year and that the student’s current accommodations were appropriate (Dist. Ex. 27).  The record is inconclusive with respect to what, if any, other specific documents the CSE reviewed at that meeting (Dist. Ex. 27; Tr. pp. 93-95, 117, 634-35, 713; see IHO Decision, p. 8).  After the meeting and on the same day, respondent filed a notice of appeal of the CSE’s determination not to classify her daughter (IHO Ex. 1).

             The impartial hearing commenced on November 20, 2003 and continued on January 20, February 2, March 10, April 2, May 18, and July 19, 2004.  As indicated above, respondent unilaterally enrolled her daughter at Oakwood in January or February 2004 (see IHO Decision, p. 1; Tr. pp. 183-84, 491).  On February 2, 2004, the parties agreed that the impartial hearing officer would take jurisdiction of respondent's claim that petitioner should reimburse her for tuition paid to Oakwood for the student’s enrollment there for the second half of the 2003-04 school year (Tr. p. 225). 

             The impartial hearing officer rendered a decision on October 12, 2004 (IHO Decision, p. 14).  The impartial hearing officer determined that the student should be classified as a student with an other health impairment (OHI) (IHO Decision, pp. 8, 11).  He concluded that the student’s educational program at Oakwood was appropriate for the student’s needs (IHO Decision, p. 12).  However, he also noted that evidence suggested that the parents were “over involved,” that the student felt “parental pressure to excel,” and that respondent's withdrawal of the student from school during some days in the spring 2003 “may have been detrimental” to her and on that basis awarded her tuition reimbursement which he limited to 65 percent of the student’s nonresidential tuition (IHO Decision, pp. 13-14).

             He further determined that petitioner’s September 16, 2003 CSE did not have adequate information to make a “valid decision” as to classification because it did not perform each of the required elements of an initial evaluation in that there was no review of a physical examination, social history, or recent observation of the student before the CSE as required by 8 NYCRR 200.4(b)(1) (IHO Decision, pp. 8-9).  He also found that there was little evidence that the September 16, 2003 CSE considered the earlier evaluations (IHO Decision, p. 8). 

             On appeal, petitioner contends that the decision of the impartial hearing officer should be reversed in all respects.  Petitioner asserts that the impartial hearing officer, in making his determination regarding classification, ignored the evidence that showed that the student’s impairment did not adversely affect her educational performance to the extent that she requires special education.  With respect to the impartial hearing officer’s award of tuition reimbursement, petitioner contends that the student’s placement at Oakwood was not appropriate and that no tuition reimbursement should be granted.  In her cross-appeal, respondent contends that the impartial hearing officer’s reduction of her tuition award was improper.

             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 the Bd. of Educ., Appeal No. 04-042; Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child Suspected of Having a Disability, Appeal No. 00-001).  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 (Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child Suspected of Having a Disability, Appeal No. 00-002).  An individual evaluation must include 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][1]; Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 01-022; Application of a Child Suspected of Having a Disability, Appeal No. 00-002). 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]). Applicable federal regulations provide that when evaluating a child suspected of having a specific learning disability, at least one CSE member, other than the student’s regular teacher, must observe the student’s academic performance in the regular classroom setting (34 C.F.R. § 300.542).

             Respondent referred her daughter to petitioner’s CSE in August 2003.  Because the student was not classified as a child with a disability when she was previously referred to the CSE, the CSE was obligated to reassess the student when respondent subsequently referred her again to the CSE in August and September 2003 (Application of a Child Suspected of Having a Disability, Appeal No. 00-036).  In this case, subsequent to respondent’s referral, petitioner did not conduct and review an observation of the student in her current educational placement as required (see 8 NYCRR 200.4[b][1][iv]; 34 C.F.R. § 300.542) nor did it prepare and review a social history of the student (see 8 NYCRR 200.4[b][1][iii]).  Additionally, there is no evidence that petitioner reviewed the results of a current physical examination of the student (see 8 NYCRR 200.4[b][1][i]) at its September 16, 2003 CSE meeting.

             When a required component of a referred student’s evaluation has not been performed prior to the CSE’s classification decision, the classification decision may not be upheld (Application of a Child Suspected of Having a Disability, Appeal No. 02-048; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child with a Disability, Appeal No. 01-101; Application of the Bd. of Educ., Appeal No. 01-022).

             A failure to include a social history (see Application of a Child Suspected of Having a Disability, Appeal No. 01-017; Application of a Child Suspected of Having a Disability, Appeal No. 00-089; Application of the Bd. of Educ., Appeal No. 99-012), an observation of the student in his or her current educational placement (see e.g., Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of the Bd. of Educ., Appeal No. 99-012; Application of a Child with a Disability, Appeal No. 98-054; Application of a Child with a Disability, Appeal No. 96-01), or results of a physical examination of the student (see e.g., Application of a Child Suspected of Having a Disability, Appeal No. 02-048; Application of the Bd. of Educ., Appeal No. 01-022; Application of a Child Suspected of Having a Disability, Appeal No. 00-089; Application of a Child Suspected of Having a Disability, Appeal No. 00-002) have been found to render a CSE determination improper.

              I concur with the impartial hearing officer that petitioner did not meet its burden of proof with respect to the CSE's recommendation that respondent's daughter not be classified. However, simply finding that petitioner improperly determined not to classify the student as a student with a disability does not in and of itself require a finding that an award of tuition reimbursement is proper (Application of a Child Suspected of Having a Disability, Appeal No. 01-107). Petitioner’s obligation to provide a free appropriate public education (FAPE) to respondent’s daughter depends upon whether she meets the criteria for identification as a child with a disability under the Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York Education Law (Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of the Bd. of Educ., Appeal No. 01-058).  I find that the impartial hearing officer erred in determining that respondent’s daughter was eligible to receive special education services and programs (see N.Y. Educ. Law § 4401; 8 NYCRR 200.1[zz]; 20 U.S.C. § 1401[3][A][ii]; 34 C.F.R. § 300.7[a][1]) when he concluded that she was a student with a disability by virtue of her having an “other health-impairment” (see 8 NYCRR 200.1[zz][10]; 34 C.F.R. § 300.7[c][9]).

             Other health impairment is defined as:

[H]aving 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][10]; see also 34 C.F.R. § 300.7[c][9]) (emphasis supplied).

             To be classified as a student with an OHI, the student’s impairment must “adversely affect the student’s performance” (id.; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65-66 [2d Cir. 2000]; seeApplication of the Bd. of Educ., Appeal No. 04-037; Application of a Child Suspected of Having a Disability, Appeal No. 02-048; Application of a Child with a Disability, Appeal No. 02-040; Application of a Child with a Disability, Appeal No. 99-086) to the extent that the student requires special services and programs (see N.Y. Educ. Law § 4401; 8 NYCRR 200.1[zz]; 20 U.S.C. § 1401[3][A][ii]; 34 C.F.R. § 300.7[a][1]; see also Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-009; Application of a Child Suspected of Having a Disability, Appeal No. 97-052; Application of a Child Suspected of Having a Disability, Appeal No. 95-11; Weixel v. Bd. of Educ., 287 F.3d 138, 149-50 [2d Cir. 2002]). 

            I have carefully reviewed the record in this matter.  I find that the record does not support a finding that the student’s condition is adversely impacting her educational performance to the extent special education is required. The student’s evaluations have indicated that her achievement on standardized tests is and has been consistent with her potential or her level of intellectual functioning (see Tr. pp. 680-81; Dist. Ex. 31 at p. 6; Parent Ex. AA at p. 4, Parent Ex. Y at p. 4).  As indicated above, her most recent scores of academic achievement did not show any deficit areas and ranged from the 72nd to the 95th percentile (Dist. Ex. 25 at pp. 9-11).  That same June 2003 evaluation showed that the student’s scores on the CELF-3 demonstrated consistently strong skills, with subtest scores from the 75th to the 98th percentile and that in a word association task the student scored in the 84th percentile (Dist. Ex. 25 at p. 8).  Further, the student’s classroom grades have historically been very good.  Less specific information is available with respect to the student’s school marks in sixth and seventh grades.  According to respondent’s June 2003 private neuropsychological evaluation (Dist. Ex. 25 at p. 3) the student’s course grades in the sixth grade “ranged from the low-80’s to mid-90’s.”  That evaluation also reported her third quarter grades as 93 (in study skills), 92 (English and reading), 90 (math), 86 (social studies), and 80 (science) and petitioner reports these grades as the student’s “end of year” marks for the sixth grade (see Pet. ¶ 12; Memorandum of Law of Petitioner at p. 3).  On the Terra Nova Multiple Assessments test, which she took at the beginning of sixth grade, the student’s composite scores were at the 95th percentile in reading, the 94th percentile in language, and the 67th percentile in mathematics (Dist. Exs. 2, 25 at p. 3).  In the marking period ending November 11, 2003, the student took eight courses, including physical education (Dist. Ex. 28).  Her grades for that first marking period included 99 in coeducational physical education, 94 in English language arts (7R) and German (7), 93 in art (7), 90 in social studies (7R), 87 in math (7), 86 in science (7), and 81 in technology (7) (id.).  The student’s seventh grade English Language Arts teacher testified at the hearing that respondent’s daughter was doing very well academically, that she ranked at the top of her class of 26 students in academic achievement, that she frequently participated in class, and that she had no problems with verbal expression or inattentiveness (Tr. pp. 151, 152-53, 154-55).  An affidavit submitted to the impartial hearing officer by her seventh grade Science teacher indicated that the student’s educational performance in that class was more than satisfactory (see Leventhal Aff. ¶¶ 2, 6, 7, 8, 9, 10, 11, 12, 13).    I note here that the impartial hearing officer found that the student’s condition has not affected her academic performance (IHO Decision, p. 10) and that respondent has conceded this (see Memorandum of Law of Respondent at p. 14). 

            Although the exhibits and record testimony indicate that respondent’s daughter has social and emotional difficulties and areas of weaknesses, there is no evidence that these have risen to the level where they are adversely affecting her classroom performance, her ability to learn in class, to function in her classes or to continue in school, or her ability to benefit from regular education (see Application of the Bd. of Educ., Appeal No. 04-037; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child with a Disability, Appeal No. 02-040; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child with a Disability, Appeal No. 99-086; Application of a Child Suspected of Having a Disability, Appeal No. 97-032). 

            Respondent also asserts that if her daughter is not eligible to receive special education services and programs as a student having an OHI, she is eligible for such services as a student with an emotional disturbance (see 8 NYCRR 200.1[zz][4]; 34 § C.F.R. 300.7[c][4]) or as a student with a speech or language impairment (see 8 NYCRR 200.11[zz][11]; 34 C.F.R. § 300.7[c][11]).  In order for a student to be classified as a student with an emotional disturbance, the student’s condition must adversely affect a student’s educational performance (8 NYCRR 200.1[zz][4]; 34 C.F.R. § 300.7[c][4][i]).  As set forth above, the student's condition is not adversely affecting her educational performance such that she requires special services and programs under the IDEA and Article 89 of the New York Education Law.  With respect to respondent's claim that her daughter is eligible as a student with a speech or language impairment (8 NYCRR 200.1[zz][11]; 34 C.F.R. § 300.7[c][11]), while the record shows that the student may exhibit moderate language-based learning deficits in some areas of language characterized by difficulty organizing and producing verbal and written narratives (see Dist. Ex. 19 at pp 3-6; Parent Ex. II), it does not rise to the level of a communication disorder which would make her eligible for special education.

           For the foregoing reasons, petitioner is not required to reimburse respondent for the tuition costs associated with her daughter’s placement at Oakwood for the 2003-04 school year. Moreover, for the same reasons, respondent’s cross-appeal lacks merit.

           I have reviewed the parties’ remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED IN PART.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it found respondent eligible to receive special education services and programs under the IDEA and Article 89 of the New York Education Law and ordered reimbursement to respondent of partial tuition for the student’s attendance at Oakwood for that part of the 2002-03 school year during which the student attended that school.