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Application of the BOARD OF EDUCATION OF THE SOUTHOLD UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Ingerman Smith, LLP, attorney for petitioner, Christopher Venator, Esq., of counsel

Andrew K. Cuddy, Esq., attorney for respondents


            Petitioner, the Board of Education of the Southold Union Free School District (district), appeals from the decision of an impartial hearing officer which determined that respondents’ son should be classified as a student with a speech or language impairment and should be exempt from the language other than English requirement for a Regents diploma.  The appeal must be dismissed.

            At the time of the impartial hearing in December 2004, the student was 17 years old and classified as Learning Disabled (LD) (Dist. Ex. 1). His current individualized education plan (IEP) provides for daily resource room services, testing accommodations, and use of a word processor including the use of spell check, grammar check and auto text, except for English tests (Dist. Ex. 1). He is also receiving program modifications (Dist. Ex. 1, Parent Ex. E). 

           The student’s classification has been in dispute since May 2, 2003 when petitioner’s CSE determined that respondents’ son no longer needed special education services. On November 23, 2004, the State Review Officer found that the May 2, 2003 CSE did not follow proper procedures in reaching its determination and remanded the matter to the Committee on Special Education (CSE) “to conduct a reevaluation of the student, including a consideration of any and all independent educational evaluations provided by the parent, with full parental participation and in compliance with all state and federal regulations, to determine whether the student should continue to be classified as a student with a disability.” (Application of a Child with a Disability, Appeal No. 04-081). 

          Prior to the issuance of the decision in Application of a Child with a Disability, Appeal No. 04-081, on October 5, 2004, a CSE met to review the results of a Central Auditory Processing Evaluation that had been conducted in August 2004 (Dist. Ex. 9; Parent Exs. D, KK). At the conclusion of the meeting, the committee declined respondents’ request that the student’s classification be changed from LD to a student with a speech or language impairment.    By letter dated October 18, 2004, respondents requested an impartial hearing claiming that the district refused to classify their son appropriately and requested a speech or language impairment classification for their son, as well as “all services necessary for a FAPE” (IHO Ex. 1). 

          The hearing below commenced on December 1, 2004 and took place over the course of three days, concluding on December 10, 2004.  On the first day of the hearing, the impartial hearing officer granted petitioner’s request for an adjournment to allow petitioner to conduct an educational evaluation, as directed by the November 23, 2004 State Review Officer decision, and reconvene the CSE to determine whether the student remained eligible for special education (Tr. pp. 55-57, 65, 105).  Petitioner advised the impartial hearing officer that it could conduct an educational evaluation and convene the CSE prior to the next scheduled hearing date (Tr. pp. 56-57).  

          The hearing reconvened on December 9, 2004 without educational testing having been conducted during the adjournment (Tr. p. 149). During the adjournment, respondents withdrew their consent for the student to be evaluated asserting that the description of the proposed evaluation lacked specificity (Tr. pp. 149, 165-67, 203-05).  At the start of the second hearing date, petitioner’s counsel submitted documentary evidence for the record. Petitioner’s counsel then declared in an opening statement that petitioner “could no longer justify the exercise of taxpayer money to participate in this process,” petitioner opposed respondent’s request for relief, he had been directed “to exercise the District’s right to decline to participate any further in this process,” petitioner was “resting” on information currently in evidence, and the impartial hearing officer had been “nothing but fair to the District” (Tr. pp. 148-59).  Petitioner’s representative and counsel then left the hearing room (Tr. p. 159).  The hearing continued in their absence, respondents presented their case, and the hearing concluded the following day on December 10, 2004 (Tr. p. 353).  

          The student, his mother, and a speech-language pathologist testified for the respondents.  The speech-language pathologist testified that the student scores well in many areas, but that his significant auditory processing problems impact the degree to which he has to work to accomplish what he has achieved (Tr. p. 315).  She further testified that his auditory processing deficits are significant (Tr. p. 316) and that while he is able to arrive at the correct conclusion or answer, the process which it takes for him to achieve that result is challenging and he undergoes “great stress” in accomplishing the task (id.). She stated that the central auditory processing skills in which the student is deficient affect his ability to succeed and fully participate in the classroom (Tr. p. 317).  She also stated that the student has a language impairment that affects his listening, which in turn, affects expressive skills (Tr. pp. 318-19).  In addition, she supported a classification of  “speech and language impairment” (Tr. p. 318) and recommended the student receive speech and language services (Tr. pp. 318-21) and resource room services (Tr. pp. 332) to address executive functioning, organization, reading, learning skills, and technology needs.

          Respondents’ son testified that without resource room “he would seriously be lost” (Tr. p. 337).  He further testified that the resource room services keep him organized and assist with his writing and ability to “keep up with everything” (Tr. p. 341).

          In addition to testimony of the respondents’ witnesses, the record includes three speech and language evaluations. The speech-language pathologist, who testified at the hearing, conducted an independent auditory processing evaluation on September 4, 2004 which was reviewed by the CSE at its October 5, 2004 meeting (Dist. Ex. 2).  The evaluation included an audiological exam, an auditory processing evaluation and a language processing evaluation. The audiological exam revealed that the student’s hearing was within normal limits bilaterally. On the Screening Test for Auditory Processing Disorders in Adolescents and Adults (SCAN-A), the student scored in the 1st percentile indicating a “significant auditory processing deficit with difficulty noted in the areas of closure and integration.” She reported that taking a foreign language would be “challenging and overwhelming.”  She concluded that the student had difficulties in auditory integration, closure, phonemic awareness (sound blending), temporal integration, receptive language (vocabulary and semantic relationships), executive language (organizing planning) and metacognitive functions (non-literal and ambiguous language, inferencing). Her recommendations included exemption from the foreign language requirement, classification based on his “significant speech and language impairment”, and appropriate supports and accommodations (Dist. Ex. 2 at p. 10).

          Respondents also submitted the results of a privately obtained speech evaluation conducted subsequent to the October 5, 2004 CSE meeting (Parent Ex. LL).  The private evaluator assessed the student’s auditory processing skills in five categories: auditory figure ground, auditory memory, auditory discrimination, auditory cohesion, and auditory attention. The student’s performance on the Goldman-Fristoe-Woodcock Test of Auditory Discrimination (GFW) revealed a severe deficit in auditory discrimination when a visual/motor component was introduced to task (Quiet Subtest-16th percentile), and this deficit was further compromised in noise (Noise Subtest- 2nd percentile).  In addition, results of the Test of Auditory Processing Skills-Upper Level (TAPS:UL) suggested that the student had severely deficient auditory memory skills and a compromised ability to recall information over time (Auditory Sentence Memory SS 70, Auditory Word Memory SS 74, Auditory Interpretation of Directions SS 83, Auditory Number Memory/Reversed    SS92).   The evaluator concluded that the student “unequivocally qualifies as a Speech-Language Impaired student” and recommended numerous low tech auditory processing programs and materials, as well as numerous spelling and reading programs.  In addition, she recommended individual speech therapy twice weekly to address the student’s deficits.

         A third evaluation entered into evidence was a November 11, 2004 speech evaluation conducted by the school district using an outside evaluator (Parent Exs. A, O). The student reported to the evaluator that he had organizational, recall and word retrieval difficulties, as well as difficulty taking notes and listening to teacher instructions simultaneously.  According to the evaluator, the student’s below average performance on the phonological memory composite (SS 73) and the alternate phonological awareness composite (SS 76) of the Comprehensive Test of Phonological Processing suggested that he would have difficulty listening to, reading, and comprehending new or unfamiliar vocabulary.  In addition she opined that his listening and reading comprehension for more complex sentences would be impaired. The student scored in the low average range (SS 8) on the Understanding Spoken Paragraphs subtest of the CELF-4.  The evaluator noted that the student was able to answer general questions but had more difficulty answering questions that required him to recall more specific details. In addition, the student demonstrated some word retrieval difficulties.  Based on the testing results, as well as previous assessments and anecdotal information, the evaluator concluded that the student had deficits in executive functioning in the areas of planning, organization and integration.  She recommended speech language therapy to remediate phonological memory ability, memory and executive function. 

         The impartial hearing officer issued his decision on December 28, 2004 and concluded, upon reviewing the documentary evidence and unrebutted hearing testimony, that the student was eligible for special education services as a student with a speech or language impairment (IHO Decision, pp. 3-4). The impartial hearing officer also concluded that the student should be exempt from the language other than English requirement because his disability impairs his ability to learn a language (see 8 NYCRR 100.5[b][7][iv][g], 100.5[b][7][v][c]).  He found evidence of the student’s weaknesses in phonemic skills awareness, attention difficulties, auditory processing difficulties, word retrieval problems, and English vocabulary deficits, and noted that the petitioner’s removal of the exemption from a prior IEP to be “unexplained” and mistaken.           

         On appeal, petitioner asserts that the impartial hearing officer erred in finding the student eligible for speech and language services and for the language other than English exemption. Petitioner requests that the impartial hearing officer’s decision be annulled.

            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]).  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][11]). 

           A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application with a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11).

           The record reveals that the student has a history of developmental and educational delays for which he has received speech and language services, remedial reading and academic intervention services (Dist. Ex. 5). He has been diagnosed previously with a reading disorder and attention deficit disorder (Dist Ex. 5). In addition, the results of recent speech/language and auditory processing evaluations suggest that the student has difficulties in auditory integration, closure, phonemic awareness, temporal integration, receptive language, word retrieval, executive language and metacognitive functions (Dist. Ex. 2; Parent Exs. A, LL).  

           Based upon review of the unrebutted testimony in the record and the documentary evidence presented, I concur with the impartial hearing officer and find that petitioner has not met its burden of demonstrating that it appropriately classified respondent’s son.  Having so found, I will not disturb the determination of the impartial hearing officer regarding the student’s classification.    

           The record reflects that the student was initially exempt from taking a foreign language (Parent Ex. JJ).  Respondents contend that this provision was improperly removed on subsequent IEPs (Dist. Exs. 1, 8, 9).  The impartial hearing officer found the removal of the foreign language exemption to be unexplained by petitioner.  I see no reason to disturb the impartial hearing officer’s determination of this issue either. 


Topical Index

District Appeal
IDEA EligibilityRequires Special Education
Related ServicesSpeech-Language Therapy (Pathology)