New York City Department of Education, Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF PARENTS ON BEHALF OF THEIR CHILD

AGAINST Decision and Order

Case Number:

SCHOOL DISTRICT

______________________________________________

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. The issue is whether or not the Student is eligible for Special Education Services. The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B)

Parent’s Position

In the initial complaint notice (Ex.21), dated December 19, 2012, the Parent wrote that she disagreed with the Committee on Special Education’s (CSE) decision that the Student was ineligible for special education services. She also alleged that the CSE did not obtain copies of the Student’s educational records before the meeting. In the amended complaint notice, (Ex. 24) the Parent and Grandparent wrote that "We are requesting an IEP with the classification of

...We are also requesting procedures for self-monitoring in the school setting." The Family also asked for facilitation of improved communication with the District and for an end to what they perceive as retaliatory actions from the District.

District’s Position

The District’s position is that the Committee on Special Education (CSE) made the right decision; the Student was making progress and is not eligible for Special Education classification.

Student History

The Student is a seven year old boy who has . He has received non-special education academic support services in speech and reading since kindergarten. He also has an individual medical aide. (Tr. P. 47) The Student also has available accommodations pursuant to a 504 Plan and related Medical Management Plan (Ex. 40)

Review of the Records

In the Student's Kindergarten progress report, (Ex. 25), he received scores of ( grade level expectations) and in every academic subject by the third trimester, scores of ) in Social, Personal, and Emotional Growth, and in fine motor skills, and most of the Lifelong Habits for Learning. In the Student's First grade progress report, (Ex. 26), he received scores of ( grade level expectations) in Writing, ( grade level expectations) in Speaking, Listening, Mathematics, Science, Social Studies, Music, Physical Education, and two categories in Art (in one category, he received a . He received a and a in Penmanship. In the Student's Grade 2 progress report, the scores for the first trimester, he received scores of in Writing, in Speaking, and in Listening. in Penmanship, and one in Mathematics, in Science, in Social Studies, in Music, and one grade level expectations) in Physical Education, in every area of Lifelong Habits for Learning, except for the score of ( ) for "Shows Effort" and "Works Well Independently." In the Classroom Teacher Report for First Grade, the Teacher wrote that when he comes back from the nurse, "[The Student] returns to class ready to join in class lessons. During lessons, [The Student] will pay attention and participate...Sometimes he needs assistance and reminders to complete his assignments." (Ex. 28) The Physical Examination Form (Ex. 29), dated September 17, 2012, indicated that the Student was in good health and could participate in sports. In the Therapy Evaluation, dated October 15, 2012 (Ex. 30) the therapist wrote that "[The Student] typically demonstrated (and demonstrates in the classroom) an energy level that is less than his peers." In the summary, she wrote: "[The Student] demonstrates the ability to correct perform visual motor and visual perception skills (according to the testing reported above)." No services were recommended. According to the Student's Social History, dated October 16, 2012, (Ex. 31) he was evaluated at age three "because of speech/language and weak fine motor concerns. He did not qualify for services." He was evaluated at age four but did not receive a diagnosis or services. The Student was diagnosed with on 2/13/08. It was noted that the Student's mother "is requesting evaluation because [The Student] requires much assistance at home with comprehending what he has read and completing assignments. He needs directions repeated several times before he understands them. In class [The Student] is reading grade level. He depends on frequent prompting to begin tasks. ...His mother reports that at home, [The Student] gets frustrated with his inability to be understood."

In the Confidential Evaluation Report, dated October 23, 2012, (Ex. 32) the School wrote. "[The Student] was pleasant, cooperative, and appeared to put forth his best effort on all tasks. Despite some articulation difficulty, his speech was generally easy to understand. A rapport was easily developed with [the Student], and he appeared comfortable with the testing situation." The Student received a Full Scale IQ score of (within range) on the Wechsler Intelligence Scale for Children--Fourth Edition (WISC-IV) but the noted that "statistically significant discrepancies between the Processing Speed Index and both the Verbal Comprehension and Working Memory index scores make the Full Scale IQ less meaningful for interpretation." He received a Verbal Comprehension Index of , (within range), a Perceptual Reasoning Index of ( ), and a Working Memory Index of ( ), and Processing Speed Index of ( range). He received a score of ( ) in the Developmental Test of Visual-Motor Integration--Fifth Edition. The Student's Teacher completed the Behavior Assessment System for Children--Second Edition (BASC-2) Teacher Rating Scale and his scores were except for Learning Problems and School Problems, which were in the range. (Ex. 32) The Checklist for Classroom Observation Report, dated October 23, 2012 indicated that the Student behaved appropriately in every category. (Ex. 33) In the Evaluation Report, dated October 26, 2012, (Ex. 34), the results were given for the Student's scores on the Clinical Evaluation of Language Fundamentals-4 which were in the range for receptive and expressive language skills, and "a " score for working memory index. The Teacher wrote. "[The Student's] greatest linguistic weakness lies in his ability to retrieve common information and to mentally manipulate the information as quickly as possible. This task places a heavy demand upon attention and concentration as well as auditory/verbal memory."

The Comprehensive Academic Evaluation Report by the Reading Teacher, dated November 8, 2012 (Ex. 35) gave the results of the Student's scores on the Weschsler Individual Achievement Test-Third Edition. He received scores in the reading subtests; scores in alphabet writing fluency and sentence building under Written Language; in sentence composition and sentence combining; and in spelling. He received scores in Mathematics.

The Hearing and Vision Screening Report, dated November 8, 2012, (Ex. 36) showed he passed in both areas. In the Classroom Teacher Report, dated November 9, 2012, (Ex. 37), the Teacher wrote that his reading level was slightly grade level; he has good comprehension of non-fiction but with fiction, "he has difficulty with retelling a story and using details when answering comprehension questions....He works to use his best handwriting and spaces while writing. [The Student] always completes his tasks in a timely manner." She mentioned a concern that he was spending too much time in the bathroom and that he sometimes had trouble working independently. In the School Nurse Report, dated November 9, 2012, (Ex. 38), the School Nurse wrote that the Student needs to get his tested a minimum of three times a day. "He occasionally has started to recognize signs of , but still requires reinforcement to identify how his are related to the symptoms he is experiencing since it has not been consistent. He sometimes experiences rapid fluctuations in his and can start out with high and then drop very rapidly requiring interventions to raise his ." In the Evaluation dated December 13, 2012, (Ex. 39), the wrote that she made her assessments through observation in the classroom, gym class, and school; interviews with staff members at the school; and assigning him tasks. "He presents with somewhat low normal muscle tone and mildly limited endurance. These findings do not appear to currently interfere with [the Student's] ability to participate actively within his school environment as he demonstrates independent classroom management and safe navigation throughout the school environment as well as participates in gross motor activities with his peers within the school environment age appropriately." The Student received a score of ( or ) for all of the categories under the Functional Skills Assessment for School Based Therapy, with the exception of "plays ball games" for which the Student received a ( performance) She did not recommend services.

In the Ineligibility for Special Education Report, dated 11/15/12, (Ex. U), the CSE Chair wrote that the decision was based on "Teacher reports, classroom tests, Parent report, Curriculum based measures, classroom observation of the student, evaluation, Educational evaluation, evaluation, and Therapy evaluation." ..."[The Student's] testing did not indicate an educational disability, therefore the Committee on Special Education did not recommend classification at this time. The 504 Accommodation plan will remain in place with an individual aide, AIS reading and 1x per week as an Educationally Related Support Service." The CSE also recommended a Therapy evaluation and Therapy consultation. Under "Description of Other Factors that are Relevant to the Proposed or Refused Action, she wrote: "[The Student] is making steady progress in his academic gains. He always completes his work in a timely manner and he is friendly towards his classmates."

The Therapy Evaluation, dated 1/9/13 (Ex. V and DD) was based on the results of standardized tests, a teacher interview, and clinical observations. She described his behavior as uncooperative and angry. He was in the range for upper-limb coordination on the BOT- 2. He had range scores on the fine motor precision and manual dexterity subtests of the Bruininks-Oseretsky Test of Motor Proficiency, Second Edition (BOT-2). He was in the motor coordination subtest of the Beery-Buktenica Developmental Test of Visual-Motor Integration, (VMI) 6th Edition. His score was on the VMI full format and visual perception subtests. He was in the range of the fine motor integration subtest of the BOT-2. The Student's behavior affected his ability to be assessed correctly on the Wold Sentence Copying Test for handwriting but "he was observed to have fair letter formations." The Student's Grandmother completed the Sensory Profile and " . . he scored in the ' ' range for low endurance/tone, sensory processing related to endurance/tone, and behavioral outcomes of sensory processing. He scored in the ' ' range for inattention/distractibility, fine motor/perceptual, modulation related to body position and movement, and modulation of movement affecting activity level." Ex. DD gave recommendations of initiating services in group sessions.

Background of the Case

In October 2012, the Parents requested an initial evaluation to see if the Student was eligible for special education services. The Student was tested and the CSE met on November 15, 2012 and found he was not eligible.

The first witness was the Assistant Administrator for Special Education, who chaired the Student’s CSE meeting on November 15, 2012. It was an initial assessment meeting based on the Parent’s request. She testified that the members of the CSE reviewed the evaluations during the meeting (Tr. P. 43) and the Parent asked questions. (Tr. P. 44) She said there was “…no indication that there was a learning disability predicted on any testing that was completed.” (Tr. P. 47) When asked, she said that the issue of the Student’s was discussed at the meeting. (Tr. P. 50) The Student would receive Therapy Consultation in which the therapist would meet with the teacher and Student and collect data. (Tr. P. 51)He was given the following accommodations: finishing his work later, being assigned less written work, and reducing the number of lines on paper. (Tr. P. 52)

The next witness was the Assistant Superintendent for Curriculum and Instruction and General Administration. She said that at the meeting, “We had each person that did the evaluation speak to the information that they had obtained as part of the evaluation. They had the teacher provide information in regard to [the Student's] performance on a daily basis, and as a result ... indicated that the child was not in need of an IEP.” (Tr. P. 67) When asked if the Parent and Grandparent participated in the meeting, she said, “Absolutely. They asked questions any time anything came up that they needed clarification. They were engaged in the participation, yes.” (Tr. P. 68) When asked if the evaluations were considered separately, she said, “Each evaluation was described as far as its results and assessment and recommendations separately.” (Tr. P. 68)

The District and Parents agreed to a 504 plan and medical management plan and a settlement was reached in August 2012. Prior to that there were meetings, a resolution session, formal mediation and an impartial hearing. The Assistant Superintendent said the Student is meeting the New York State Standards for reading and writing. (Tr. P.P. 128-129)

Regarding an inquiry about engaging in avoidant behavior to avoid writing, the witness said the teacher said he would always continue with his work when prompted without any problems. (Tr. P.P. 132-133) When asked if students beginning second grade are on a second grade reading level, she said no, and if they are below grade level that would not be a reason to classify them as special education. (Tr. P. 135)

The Therapist who evaluated the Student on October 15, 2012 testified at the hearing. Her evaluation is Ex. 30. She testified that there are many reasons why the motor testing results were different on each test. (Tr. P. 155) When asked if the Student’s scores were in the range on the tests, she said yes. (Tr. P. 162) The attended the CSE meeting and said she had the opportunity to share her report and observations. She said, “I shared how he performed his testing. I shared his scores and I shared my recommendations.” (Tr. P. P. 164-165) At the meeting, she agreed with the CSE’s decision not to classify the Student as having a learning disability. (Tr. P. 165) She was asked about Ex. DD, an evaluation conducted by another evaluator in which the Student behaved in an angry and uncooperative way and said that his behavior was very different during her evaluation, and he was very cooperative. (Tr. P.P. 166-168) When asked if the Student’s behavior would affect the results of the test, she said, “Yes.” “If they’re not willing to perform the testing, then they’re not going to work their best.” (Tr. P. 168) up to p. 172.

The School who tested the Student for the CSE testified when asked, if the Student had any cognitive defects, she said no. (Tr. P. 180) When asked if she observed any stress or anxiety in the Student, she said no. (Tr. P. 180) When asked if she agreed with the CSE that the Student was not eligible for special education services, she said yes. (Tr. P. 182)

When asked if the Students in the Intervention program are tested, the said that all the Students are tested and they also learn from the Student's teacher about his progress. (Tr. P. 189) She said, "If we saw that he was not making progress, we would tailor the intervention to address his needs. When asked to explain the scores of the learning problem scale of the Behavior Assessment System for Children, Second Edition, teacher testing scale, she said, "It means that there are some academic weaknesses, a little bit more than what would be considered average based on [The Teacher's] ratings of [The Student]. However, they're not considered to be significant. They're in the range, meaning that they're a mild--it's a mild problem at this point in time and we feel that the issues are being addressed through Academic Intervention Services."(Tr. P. 194) When asked how the Student's progress in the intervention services is measured, she said that the Student's tutor keeps notes on the Student's progress and they "monitor his reading level to see... if it continues to progress..."(Tr. P. 195) Commenting on whether the discrepancy between the processing speed scores and the Student's other cognitive abilities would affect the Student, she said , "It would affect him positively because the processing speed score was measured to be ." (Tr. P. 200) When asked why the 504 is not signed, the explained that it is because of the change in the software program. (Tr. P. 202)

The School Nurse testified she still thought the 504 plan and Medical Management Plan were meeting the Student's needs, (as she had indicated in Ex.1 and Ex. 38), she said, "Yes, I do." (Tr. P. 216) She attended the CSE meeting and when asked if the Student's mother or grandmother asked her if the Student's health was affecting his education, she said they did not ask her any questions. (Tr. P. 216)When asked if she agreed with the CSE's decision that the Student did not meet the requirements for special education services, she said yes. (Tr. P. 217)

The School Nurse said the Student was never required to test his level himself and after the family asked her to do the testing, she did not allow the Student to test himself anymore. (Tr. P.P. 260-262) Shed testified that the Student does not have to leave for testing during important teaching times. (Tr. P. P. 281)However, there have been times when he had to leave the classroom for testing if he wasn't feeling well. (Tr. P.P. 307-308) When asked how the Student's levels affect him in class, she said, "I am not in the classroom to say--to see his behavior in there. When I see him in my office, he's alert, oriented, enthusiastic." (Tr. P. 318)

The Student's grade teacher testified that he has shown great improvement. She said," He has been a model student probably since we got back from the holiday break. He has been the first student in class unpacking, getting his things out. First one to get his morning work, put it on the table....He has been very, very focused. Getting his work done. Proud of his work. Proud of the effort he has been putting in." (Tr. P. 339) She added that he now works independently. (Tr. P.P. 340-341)When asked if he seems tired or anxious or not alert in school, she said no. (Tr. P. 342)When asked if he enjoys school, she said yes. (Tr. P. 343) She was asked about his progress report, in which he received a ) for writing. She said his writing has improved. "Because he's improved as a reader, he's also improved as a writer." (Tr. P. 342) She noted improvement in his organization, spelling, and vocabulary. (Tr. P. 345) She said in reading, he went from a level ( grade level) to a level ( level ).(Tr. P.P. 346-348) When asked if the AIS support in reading and speech are helping the Student and why, she said yes. "I've seen, like I had said, an improvement in his reading ability, an improvement in his writing. I've seen an improvement in his confidence in the classroom...." (Tr. P.P. 349-350) She was asked about the Student having to leave class to get his tested, and she said that he is not missing instructional time as he goes just before snack time, during the time to pack up to go home, and during a wrap up time, but he catches up. (Tr. P.P. 351-352) She said leaving the classroom has not affected his academic work. "He's very studious about getting his work done." (Tr. P. 352) She said that the time when he was in the bathroom longer than usual only lasted three or four days in the fall. (Tr. P. 353) She was asked about the CSE meeting. "...at the time [the Student] was just slightly below where he needed to be. He wasn't in need of bigger supports to help him gain the gap that he had." (Tr. P. 356) When asked if she still agreed with the CSE decision, she said yes. (Tr. P. 357) When asked if the approximately five times the Student left her class to have his tested when he didn't feel well, interfered with his education, she said no. (Tr. P. 358)

The Teacher also explained that the Student does not miss any of academic work when he goes to the AIS classes because he is working on the same skills. (Tr. P. 367) When asked if there was much discussion about the Student's health, she said, "...it was more about his academics than his condition." (Tr. P. 369)

Concerning his needs in the areas of , the Teacher said she is not a speech teacher but it might help his articluation "but I don't believe his articulation is affecting his writing anymore..."(Tr. P. 371) There has been a change since the comment on "misarticulation impacts written expression" on Ex. D, which dates from February 8, 2012. (Tr. P. 371)

The Administrator for Special Education and Special Services testified about the role of the Student's aide and the 504 plan. She was asked if the Parents attended the May 1, 2012 meeting and if they participated and she said they did. (Tr. P. 382) (She did not attend the meeting herself). The mediation meeting was held in August 2012. P. 383-386: 504 plan process. When asked if anyone involved was concerned that the plan did not adequately address the Student's needs, she said no. (Tr. P. 384) When asked if the all the documents checked off on Ex. 44 were reviewed during the meeting, she said yes and explained the process. (Tr. P. 386) She said the CSE Chair moderated the meeting and everyone on attendance sheet participated in person or by telephone. "Everyone at the meeting had a copy of the CSE packet, and the family had actually received a copy of the packet in advance of the meeting. [The Chair] went in a systematic way to each of the evaluators for them to present a summary of their report, given that both the family and everyone presented a copy which they could follow along. So while they did not read every score, they did give a summary and presentation on the findings, relative strengths and weaknesses within each evaluation. And then they were asked as to what is their recommendation in terms of need." (Tr. P.P. 386-387) The meeting lasted two hours. (Tr. P. 388) She described how the CSE reached its conclusion that the Student was not eligible for special education services. "There was a discussion of his needs and academic as well as were there any academic needs, were there social needs, medical, physical management, and could these needs be met within general education." She said they addressed his reading level, articulation, and writing. (Tr. P.P. 389-390) She was asked about the Parent's request for the independent educational evaluation by an therapist and said the District agreed to it and there were no obstacles. (Tr. P.P. 391-392) She said the Parent was confused about the payment process and she explained what the Parent needed to do so the District could pay the bill. The District did pay for the evaluation. (Tr. P.P. 392-394)

She said the Student did not require special education because "The evidence that was presented at the November 15th meeting seemed to show that he was making educational gain through his program of academic support, and in terms of his 504 providing medical and health support for him and supervision in the school setting. He was able to access his education.” (Tr. P. 395)

She was asked to recall discussion of the Student’s condition at the meeting. The School’s medical director and nurse participated but she did not remember specifically what was said. She said, “…there was not an extensive discussion, no.” (Tr. P. 397) She said the teacher talked about the role of the aide, and the Student going for testing. (Tr. P. 399) She was asked how many questions were asked at the CSE meeting about the Student having . She said there were about 12 questions. (Tr. P. P. 408-409)

She was asked to clarify the amount of time the Student receives reading intervention, as the Parent misunderstood what was stated on Ex. U. She said, “He’s receiving AIS reading two times a week. He’s receiving one time a week.” (Tr. P. 404)

She was asked if the issue of the Student being classified as was addressed. She said that the CSE Chair said, “that based on what had been presented that he did not meet the criteria of having that educational disability, not did the other classification that came up was also .” (Tr. P. 409)

The Reading Teacher testified next. She explained the scores on the Student’s reading sub-tests. His phonetic awareness skills, word reading, pseudo word decoding, reading comprehension, and written language abilities were all on the subtests (Tr. P.P. 430-432); only the spelling was . (Tr. P. 432) She said that the spelling errors were related to what the Student was reviewing in class at the time, “so if I had given the same subtest a week later, he may have gotten them all correct.” (Tr. P.P. 432-433) His math skills were appropriate for his grade level.

She was asked if she had participated at the November 15, 2012 CSE meeting and what she shared. She said, “I had gone through each of the subtests in detail and that overall, according to this assessment, that [The Student] appeared to be meeting grade level expectations.” (Tr. P. 434) She agreed with the Committee that the Student did not meet the requirements for special education classification.

The Student’s first grade Teacher testified next. She was asked if the Student learned better on certain days, and she said that “I believe it was more towards the subject matter, writing as a subject matter.” …He enjoyed writing on self-selected topics. He was more successful writing on self-selected topics.” (Tr. P. 449)When asked if he needed help focusing, she said, “No. He paid attention.” (Tr. P. 450)She said his handwriting improved. When asked if the intervention helped his writing, she said, “He definitely made progress.” (Tr. P. 450) When asked what scientifically based evaluations were conducted, she said, “We have benchmarks in order to test reading level. We have benchmarks and rubrics to explain writing levels in first grade. So we do writing assessments.” (Tr. P. 451) She was questioned as to whether she ever asked the Student to stay in during recess to complete an assignment and she said she never did. (Tr. P. P. 457-458) When asked if the Student became easily tired in class, she said no. (Tr. P. 460) She was also asked if she was concerned about his energy level or alertness and she said no. (Tr. P. 460) She did not participate in the November 15, 2012 CSE meeting. (Tr. P. 460) When asked why she referred the Student for services, she said, “I noticed that his articulation could be affecting his spelling and his writing…” (Tr. P. 461. She said his articulation and spelling improved. (Tr. P. 461)

The Teacher testified next. She teaches the Student for a half hour once a week, in a small group. (Tr. P.P. 464-465) She said he always works cooperatively with the other students and pays attention. (Tr. P.P. 465-466) She was asked why the last sentence of the report (Ex. C) was removed, and she said that it did not have the written expression piece in it because she is an Response to Intervention (RTI) provider who is focusing on addressing the Student’s articulation. “So for my own personal benefit for me moving forward in the future, I did not put that line in my personal file, because I can’t be addressing all the needs that the classroom teacher has, all the concerns. And I’m thinking now that if I address the expressive articulation and correct that, then the written piece will follow. And that’s exactly what has happened.” (Tr. P. P. 470-471) She pointed out the report was based on the Student’s previous testing. (Tr. P.

472) She attended the CSE meeting but did not bring a report, as it was written just for the family; usually, she calls a student’s family about test results. (Tr. P. 473)

She was asked what tier the Student is on and she said , “For AIS he would be tier but for AIS and , he would be a tier .” (Tr. P. 476) She was asked what she shared at the meeting about Ex. 34, an evaluation she wrote. She said she reviewed the composite scores and said that the Student received a core language score of which is in the range and that if a score is over 85, they don’t conduct more testing. (Tr. P. 481) She said she reviewed the other scores as well. She said she thought the Student’s age of seven years, zero months impacted the scores. “So [The Student] was at an age disadvantage because he was being scored with students who are 7 years 11 months and 28 days. So [The Student] was very young for these norms tables.” (Tr. P.P. 482-483) She was asked if overall, his scores were in the range, and she said they were, except for the working memory index, where there was a discrepancy between two subtests—her test for the CELF-4, which was within the range, and another evaluator’s test on the WISC-4, which was . (Tr. P. P. 485-486)When asked if the Student was speech impaired or if his articulation problem affected his academic progress, she said no. (Tr. P. 486)

The Student’s Grandmother testified about the family’s concerns. She said that there are inconsistencies in the evaluations because of the Student’s health. “There are some differences in the behavior, the attention span, his ability to focus. His is high, his vision is blurry. These are things the teacher can’t see.” (Tr. P. 494) She is concerned that at times, the reading teacher can’t provide services. (Tr. P. 495) She felt that the District’s medical director did not answer their question about the Student’s and his behavior and that the Assistant Superintendent for Instruction and Administration answered “said it was addressed by the 504.We weren’t able to get to one of the reasons we requested to have a CSE meeting. That was one of the things that we were trying to focus on.” (Tr. P. 496) She said they want an IEP for the Student. (Tr. P. 496) “We’re just asking for the school district to be held accountable to have something in writing stating what the goals are and objectives to meet those goals so that we can get the services that he needs.” (Tr. P. 496-497) She said, “…we’ve been having difficulties all along whenever we ask for something from the very beginning.” (Tr. P. 497)

When questioned about having an IEP, she said, “I’m looking for the mandates, that these are State mandated criteria.” (Tr. P. 508) She added that she feels the Student qualifies for special education services under . (Tr. P. 508) The Parent said the Student’s condition, “It’s affecting him now with focusing and concentration.” (Tr. P. 511) When asked if there was any testimony about his health affecting him in school, she said, “There have been times when he’s going down to the nurse or when he feels his is dropping…He doesn’t always tell them what’s going on. The fact that if his shoots up to , his vision is blurry. A simple thing of him rubbing his eyes is knowing his vision is blurry. That is something that happens all the time. That needs to be put into—like I said, for people to be aware of that.” (Tr. P. P. 511-512) She added there are inconsistencies in the reports. (Tr. P. 512)

The Grandmother testified about having phone calls be directed to the Assistant Superintendent; she said they agreed to do this because their phone calls weren’t being returned and they felt that staff members in the school were not always truthful. (Tr. P. P. 518-520) The Grandmother said the Student will tell her, but does not speak of how he feels in class. (Tr. P. 534)

Law and Analysis

Following from my decision dated January 21, 2013, I shall address the issue of special education classification raised in the Parents’ amended complaint notice. The law relative to this issue is straightforward. In order to qualify as a "student with a disability" under the IDEA, the student must:

1) Meet the definition of one or more of the categories of disabilities which include:

mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as "emotional disturbance"), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities; and

2) Need special education and related services as a result of his disability or disabilities. 34 CFR 300.8 (a)(1); see Educ. Law § 4401[1], [2][k]) If a child has one of the disabilities identified at 34 CFR 300.8 (a)(1), but only needs related services and not special education, the child is not a child with a disability under the IDEA. 34 CFR 300.8 (a)(2)(i).

In this case the focus is on the classification of ). is defined, as relevant here, as:

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—

(i) Is due to chronic or acute health problems such as . . . . . .; and

(ii) (ii) Adversely affects a child's educational performance. (34 C.F.R. § 300.8[c][9]; see 8 NYCRR 200.1[zz][10]). Accordingly, a child with a disability having an means "a child evaluated . . . as having . . . an . . . and who, by reason thereof, needs special education and related services" (34 C.F.R. § 300.8[a][1];see 20 U.S.C. § 1401[3][A]). Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA is an issue that has been left for each state to resolve (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 [2d Cir. 2000]). Cases addressing this issue in New York have followed a case by case, fact specific approach (Corchado v. Bd. of Educ.,86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that the effect of each child's particular impairment on his or her educational performance requires individual analysis as to whether the student's impairment necessitates special education]; Application of the Bd. of Educ., Appeal No. 10-005; Application of a Child Suspected of Having a Disability, Appeal No. 07-086; Application of the Bd. of Educ., Appeal No. 02-066; Maus v. Wappingers Cent. Sch. Dist., 688 F.Supp. 2d 282, 294 n.6 [S.D.N.Y. 2010]; see also A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 306-11 [E.D.N.Y. 2010]); SRO 11-084

In this case I am not persuaded that the Student needs special education services. Here, there is an overwhelming amount of evidence in the record supporting the District decision not to classify the Student. There is a unanimous position of educators of the Student and District personnel that the Student does not need special education services.

The Assistant Administrator for Special Education, who chaired the Student’s CSE meeting on November 15, 2012 testified that she agreed with the CSE’s decision not to classify the Student. She said, “He has a disability. It’s a physical disability, which is being appropriately addressed through a 504 Accommodation Plan, but there was no indication in the testing of and reports from the people who work with him that there was an educational disability.” (Tr. P. 60)

The Assistant Superintendent for Curriculum and Instruction and General Administration testified “I feel [the Student] is making appropriate progress. He is being supported. The teacher has spoken about accommodations that she was making when she was working with him, both in the classroom as well as in a small group, and so I felt he was making adequate progress without the need of a more restrictive environment.” (Tr. P. 70)

The School who tested the Student for the CSE testified that the Student was in the range for intelligence and verbal comprehension (Tr. P. 177) and in the range for the processing speed test (Tr. P. 178). She summarized “ . . he's currently performing level, according to the standardized testing that's been done."(Tr. P. 191)

The School Nurse testified that she sees the Student about three or four times every day to test his level. (Tr. P. 213) She said he has a high energy level, and "If it wasn't for the fact that I care for his needs, I wouldn't be able to identify him as any different from any other student." (Tr. P. 214)

The Second Grade Teacher said she told the CSE that the Student was "slightly below his reading level but that he was making progress and that he has supports in place and at the time he enjoyed reading nonfiction texts." (Tr. P. 354) She did not think that the Student was affected academically by . (Tr. P. 355) She added that it was her opinion which she expressed at the CSE meeting that the Student did not need special education services. (Tr. P. 356)

The Reading Teacher testified: “Based on the result of this assessment, in conjunction with his current classroom performance at that time, I felt that what he was currently receiving was appropriate.” (Tr. P. 435)

The Teacher testified: “[The Student] qualifies as a student. [The Student] is not a student with a disability.” (Tr. P. 486) When asked if she agreed with the CSE’s decision that the Student should not be classified as learning disabled, she said, “yes. Well, I agreed with that because [The Student] does have weaknesses, but they’re being—he’s closing the gap between what he is capable of doing and what he is expected of doing. The gap is closing as an RTI student. He is improving. He’s not just staying at the same level as he was as a first- grader when I started working with him.” (Tr. P. 487)

Consistent with the testimony, are the documents entered into the record. Each exhibit concludes that the Student is not in need of special education services. (Ex.s 30, 31, 32, 34 37 and 39) The single exception that recommends special education services is an Independent Evaluation (Ex. DD) which was administered under difficult circumstances. (Ex. DD) In fact, the Grandmother conceded that the Student's behavior was abnormal the day of the evaluation because of his health and that it likely affected his test results. (Tr. P. 538) Given the unusual testing circumstances I discount the recommendation of the Independent report.

Accordingly, based upon the review of the record herein with due consideration given to the testimony of the witnesses I hereby Dismiss the Amended Complaint Notice.

April 7, 2013

So ordered,

Martin Kehoe

Impartial Hearing Officer

See addendum for Exhibit List

APPEAL RIGHTS

APPEAL TO A STATE REVIEW OFFICER OF THE STATE EDUCATION DEPARTMENT

A review of the decision of a hearing officer rendered in accordance with New York State Rules and Regulations may be obtained by either the parent or the Board of Education by an appeal to a State Review Officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of part 279 of Title 8 of The New York State Code of Rules and Regulations. The written decision of the State review Officer, a copy of which will be mailed to the parent and the Board of Education, shall be final, provided that either party may seek Judicial Review by means of a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.

Title 8 NYCRR § 279.2 Notice of intention to seek review.

The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.

(c) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.