The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Greenwood Lake Union Free School District
Westchester/Putnam Legal Services, attorneys for petitioners, Geoffrey
Shaw and Perelson, LLP, attorneys for respondent, David A. Shaw, Esq. and Lisa A. Schreiner, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' daughter be enrolled in the Treatment and Education of Autistic and related Communication Handicapped Children (TEACCH) program of the Board of Cooperative Educational Services of Orange and Ulster Counties (BOCES) for the 1995-96 school year. The appeal must be dismissed.
Petitioners' daughter, who is six years old, was born prematurely, and reportedly had respiratory distress syndrome at birth. The child also had hydrocephalus, for which shunts were inserted to relieve the pressure of fluid on her brain. She was believed to have had a prolonged neonatal seizure, for which she received medication. She has reportedly not had a seizure since shortly after birth. The child has reportedly been medically diagnosed as having a Pervasive Developmental Disorder (PDD), and Cerebral Palsy. One of the neurologists who has examined the child reported that she has a left hemiparesis (partial paralysis on the left side), in association with microcephaly (abnormal smallness of the head). The neurologist, who examined the child in May, 1995, reported that the child's PDD, or autism, had impacted upon the child's communication skills and her relatedness. He further reported that the child's fine motor skills were deficient. The child reportedly walks with a limp. As noted below, the child was found to be cognitively functioning in the mentally retarded range, when tested in 1993. The child has been classified as multiply disabled (see 8 NYCRR 200.1 [mm]). Her classification is not disputed in this proceeding.
When she was five months old, the child entered an early intervention program for children with Cerebral Palsy in the Janet Lockwood Center in Goshen, New York. In January, 1992, she entered the Chester Infant/Toddler Learning Experience program, in which she remained until the end of the next school year. In January, 1993, the child was evaluated by a psychologist, who reported that the child was cooperative, but had a very short attention span. The child was three years old, when tested. On the Cattell Infant Intelligence Scale, she achieved a mental age of 20 months, and a ceiling age of 30 months. On the Woodcock Johnson Scales of Independent Behavior, the child exhibited developmental delays in toileting, domestic skills, time, and punctuality. However, her fine and gross motor ability was at age equivalence of 30 months.
During the 1993-94 school year, the child was enrolled in the Developmental Learning Center (DLC), in Newburgh, New York. She reportedly received speech/language therapy and physical therapy, on a daily basis, while enrolled in that facility. At the hearing in this proceeding, respondent's CSE chairperson testified that the child made slow, but steady, progress in developing academic readiness, social, and gross and fine motor skills, while in DLC.
In April, 1994, the child was evaluated by a neurologist in the Albert Einstein College of Medicine. The neurologist reported that the child spoke clearly, but tended to be echolalic, and to not use language communicatively. She also reported that it was difficult to get the child engaged in activities. The neurologist opined that the child would require a great deal of individual attention in a very highly structured program, in order to make developmental progress. She further opined that developing the child's ability to function in a small group was as important as having her receive the continuous attention of an adult in a home-based program, which the child's mother reportedly wished to have implemented for her daughter.
The child was evaluated by another neurologist, in June, 1994. The second neurologist, Dr. Wolff, reported that it was somewhat difficult to maintain sustained eye contact with the youngster, and that she evidenced deficits in her fine motor skills and her gait. Dr. Wolff also reported that the child demonstrated normal coherence and fluency in her speech, but that she had an unusual prosody in her speech. He opined that the child had a neurological impairment which was suggestive of PDD, because of deficits in her communications skills and her relatedness. He recommended that she receive the "Lovaas" type of behavioral therapy.
The child remained under the jurisdiction of respondent's committee on preschool special education (CPSE) for the 1994-95 school year. In June, 1994, petitioners asked the CPSE to recommend that the child receive a home based instructional program in which the Lovaas methodology would be used. Dr. Sudhalter, an expert witness who testified at the hearing in this proceeding, described the Lovaas methodology as a very intensive, individual discrete trial method of presenting information to a child. Dr. Sudhalter indicated that the Lovaas methodology, also known as applied behavioral analysis, is an outgrowth of the "operant conditioning" methodology. She testified that the Lovaas methodology, which involves the use of a "reward" to reinforce appropriate behavior , is useful in helping an autistic child engage in appropriate behavior. On June 14, 1994, the CPSE recommended a home based program of instruction for the child during the 1994-95 school year.
In July, 1994, an evaluation of the child's behavior was performed by a psychologist in the Institute for Basic Research, on Staten Island. The psychologist, who used information provided by the child's mother to assess the child's adaptive behavior, reported that the child achieved age equivalent scores of 22 months in communication skills, 18 months in daily living skills, 11 months in socialization skills, and 17 months in motor skills. He opined that the child had PDD. The psychologist recommended that the child receive a minimum of 40 hours per week of individual attention in a Lovaas-type of behavior modification program to develop her social skills, as well as incidental learning. He suggested specific social skill improvement, including improving her "social gaze regulation through reinforced eye contact, modeling, role playing, and by exposure to non-handicapped peers" (Exhibit 34). The psychologist further suggested that the girl's social skills could be improved if she "observed other children through prompting and feedback" (Ibid).
The child initially received seven and one-half hours of instruction per week from a teacher who used the Lovaas technique, during the 1994-95 school year. In December, 1994, the amount of such instruction was increased to seventeen and one-half hours per week. In addition to the instruction which respondent paid for, the child received 20 hours of special education instruction which was provided with Medicaid funds. At the hearing in this proceeding, the child's teacher testified that she provided individual instruction in 10 to 15 minute segments, with "instructive play" activities interspersed between the instructional segments. During the instructional segments, the child was typically asked by the teacher to perform two tasks, ten times each. If the child successfully performed a task, she was given a reinforcement. The teacher testified that she used edibles as primary reinforcers, and hugs, kisses, and music as secondary reinforcers. The child also received individual speech/language therapy, physical therapy, and occupational therapy. The girl's individualized education program (IEP) for the 1994-95 school year included annual goals to develop her cognitive skills, and her social skills. There were also IEP goals relating to the child's receptive language, auditory processing, and expressive language skills.
In December, 1994, the child received an educational evaluation, at respondent's request. The child, who was 58 months old when tested, reportedly achieved a mental age of 34 months on the Cattell Infant Intelligence Scale, with a resulting IQ score of 60. The evaluator reported that the child appeared to be functioning on a general developmental level of a child of the age of 23 months with scattered skills up to the 44 month level. The evaluator noted that the child's attention to tasks was inconsistent, and that the child spoke in a monotone, and exhibited echolalia. She also noted that the child appeared to require directions to be given exactly as she was accustomed to hearing them, in order to respond. The child was described as socially functioning at the developmental level of a 17 month old child, with some higher skills, including responding to greetings, separating from her parents, and taking turns. The evaluator reported that the child's language skills were at the developmental level of 36 months, with scattered skills up to the 48 month level. She described the child as having fleeting eye contact, and requiring frequent redirection. The evaluator reported that the child appeared to be functioning at the developmental levels of 18 months with respect to her fine motor skills, and 19 months with respect to her gross motor skills, while she exhibited scattered skills at the 42 month and 36 month levels, respectively. In the area of self-care skills, the child was reported to be functioning on a developmental level of 15 months, with scattered skills up to the 36 month level.
On January 12, 1995, the child's speech/language skills were evaluated by a speech pathologist in the Chester Infants/Toddlers Learning Experience Center. The child was four years and eleven months old, when she was evaluated. The speech pathologist reported that the child achieved age equivalent scores of 2.7 in receptive language, but demonstrated splinter skills up to the 4.5 level. The child reportedly did not understand pronouns, negatives, or complex directions. She achieved an age equivalent score of 3.1, with splinter skills up to the 4.5 level, with respect to her expressive language skills. She reportedly had difficulty using pronouns spontaneously, the auxiliary before the verb, irregular and regular forms of the past tense, and producing and repeating sentences. The intelligibility of the child's speech was described as fair to poor. When evaluated again in May, 1995, by her own speech/language therapist, the child achieved age equivalent scores of 3.0 in auditory comprehension, and 3.5 in expressive communication. The speech/language therapist reported that the child had gained a tremendous amount of vocabulary, the ability to match like objects, social and attending skills, the ability to imitate a three to five word sentence, the ability to make choices, and the ability to attend (pay attention) during unstructured activities. The child's linguistic skills were also assessed in July, 1995, by a psychologist in the Institute for Basic Research. On the Test of Early Language Development, the child achieved an age equivalent score of 3.6. The psychologist reported that the child demonstrated competency with the skills which she had been taught, but could not infer with language, or answer questions on which se had not previously been drilled.
On April 26, 1995, a follow-up behavioral assessment was performed at the Institute for Basic Research. On the Vineland Adaptive Behavior Scales, based upon information provided by the child's mother, the child achieved age equivalent scores of 4.6 in communications, 2.6 in daily living skills, 2.2 in socialization, and 1.11 in motor skills. The psychologist, who had previously evaluated the child in July 1994, commented that the child had made remarkable progress in her language skills, and good progress in her social skills and daily living skills. The psychologist recommended that the child be placed " ... in a classroom with non-autistic children at or slightly above her social-communicative abilities" (Exhibit 8). He also recommended that the child continue to receive a program of applied behavioral analysis (Lovaas) methodology.
Dr. Wolff, the neurologist, re-examined the child on May 12, 1995, reported that the child's left hemiparesis had continued, and that her fine motor skills were quite deficit in both her left and right hands. He indicated that he had opted to consider placing the child on medication to improve her ability to maintain her attention, and recommended that the child continue with her behavioral modification program, while having an opportunity to develop her social skills with nursery school-age children.
In a report which she completed in May, 1995, the child's special education teacher reported that the child appeared to be functioning at a cognitive development age of 3.9 years, based upon her performance on the Brigance Diagnostic Inventory of Early Development. On the "readiness" portion of the Brigance, the child reportedly functioned at the developmental level of 5.5 years. The child's social/emotional levels were assessed on the A.H.R.C. Developmental Scales. The teacher reported that the child appeared to be functioning at the two year old level, with scattered skills up to two and one-half years of age. The teacher recommended that the child should continue to receive the same individual applied behavioral analysis program during the 1995-96 school year, and that she be enrolled in a half-day regular education preschool program with one-to-one instruction to develop her social interaction and play skills.
The child's occupational therapist reported that the child had made progress in all areas, including strength and dexterity with both the left and right hands. The therapist also reported that the child could recognize shapes well, but had difficulty imitating shapes, and coloring within areas. She recommended that the child continue to receive occupational therapy. Her physical therapist reported that the child had become capable of producing a slightly more symmetrical gait pattern, but continued to require activities which reduced the muscle tone on her left side. She recommended that the child continue to receive physical therapy.
Petitioner met with the CSE on June 9, 1995, as the CSE developed its first recommendations for the child's classification and placement as a school-age child. The CSE recommended that the child's home-based preschool program continue through the Summer of 1995. For the 1995-96 school year, the CSE recommended that the child be classified as multiply disabled, and that she be enrolled in the BOCES TEACCH program, where she would be placed in a class with a 6:1+2 child to adult ratio. The CSE also recommended that the child receive individual speech/language therapy five times per week, individual physical therapy three times per week, and individual occupational therapy three times per week. The CSE adopted the suggested annual goals and short-term objectives which the child's teacher, speech/language therapist, occupational therapist, and physical therapist had prepared for the child. The CSE did not indicate which of the BOCES TEACCH classes it was recommending for the child.
In a letter to the Superintendent of Schools, which was dated July 8, 1995, petitioners requested that an impartial hearing be held to review the child's program for the 1995-96 school year which the CSE had recommended. Respondent appointed an impartial hearing officer on July 12, 1995. A hearing which was tentatively scheduled to be held on August 9, 1995 was adjourned, at the request of petitioners' attorney, until September 5, 1995.
In July, 1995, petitioners obtained a psycholinguistic evaluation of the child at the Institute for Basic Research. Dr. Sudhalter, the psychologist who performed the evaluation, reported that the child maintained very good eye contact, but that she required constant focusing, repetition, and specific introduction to new items and syntactic structures in order to learn them. On a standardized test of language competency, the child achieved an age equivalent of 3.6. Dr. Sudhalter reported that the child had gained a lot of language ability through the use of Applied Behavioral Analysis (the Lovaas technique), and opined that the child needed to be taught with that technique in order to learn. The child was also seen by a private psychologist in July, 1995. The psychologist also opined that the child should continue to receive instruction using the Applied Behavioral Analysis technique.
On August 31, 1995, the CSE met with a BOCES special educational supervisor. Although petitioners were invited to the CSE meeting, they did not attend the meeting. The CSE reportedly reviewed class profiles for two BOCES classes, and recommended that petitioners' child be enrolled in the class taught by Ms. Nancy Donahue.
The hearing commenced on September 5, 1995. At the outset of the hearing, petitioners' attorney stipulated that there was no dispute as to the appropriateness of the child's classification, or the adequacy of the evaluation upon which the CSE had relied in making its recommendation. The attorney indicated that petitioners sought a determination that the child's IEP for the 1994-95 school year should be used for the 1995-96 school year, with certain modifications. Petitioners asked that respondent be required to pay for at least 20 hours of instruction per week, provided that Medicaid continued to fund another 20 hours of instruction. In the event Medicaid no longer funded all or a portion of the 20 hours of instruction, petitioners sought to have respondent pay for up to 20 additional hours of instruction per week. Petitioners also asked to have the child receive a Lovaas-type program on a twelve-month basis, with petitioners to have the right to select the child's teacher. They also asked the hearing officer to order respondent to engage the services of the child's related service providers during the 1994-95 school year for the 1995-96 school year. Petitioners also sought an order requiring respondent to enroll the child, at respondent's expense, in the Great Beginnings Nursery School, on a part-time basis so that she could acquire social skills. In addition, petitioners' sought an order directing respondent to pay for the evaluation of their child's home based program by an applied behavioral analysis supervisor, once every three or four months.
The hearing continued to be held for three more days, ending on October 2, 1995. The hearing officer rendered his decision on November 22, 1995. He found that the child's IEP for the 1995-96 school year was appropriate for her, notwithstanding the CSE's failure to set forth specific short-term instructional objectives in support of her annual goals for cognitive and social/emotional development. With regard to petitioners' request that he order the child to continue to be instructed with the Lovaas methodology, the hearing officer held that the parents of a child with a disability did not have the legal right to require a school district to use a specific teaching methodology, and he rejected their claim that the Lovaas methodology was the only methodology by which the child could benefit from instruction. He found that respondent had met its burden of showing that the CSE had recommended an appropriate program for the child, and that the BOCES TEACCH program was the least restrictive environment for the child. He also found that the child would be appropriately grouped for instructional purposes with the children in Ms. Donahue's BOCES class (see 8 NYCRR 200.6 [g]).
Petitioners contend that the hearing officer erred by failing to consider the child's progress in her home-based program during the 1994-95 school year, when he found that the BOCES program would be appropriate for the child during the 1995-96 school year. They also contend that the hearing officer incorrectly failed to consider the possibility that the child could regress if she was placed in the BOCES program, and that he erred in finding that the BOCES program was the least restrictive environment for the child.
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Petitioner have not challenged the adequacy of the child's IEP for the 1995-96 school year, except with respect to the CSE's failure to indicate the extent to which the child would participate in regular education classes (cf. 34 CFR 300.346 [a]; 8 NYCCR 200.4 [c][iv]). Although the CSE should have complied with the Federal and State regulatory requirement by indicating the extent of the child's participation in regular education classes, I find that its failure to do so in this instance does not afford a basis for invalidating the child's IEP. The child's mother had observed the BOCES program, which clearly involved self-contained classes. The BOCES supervisor testified that, except for some limited opportunities to socialize with other children on the playground and at certain school activities, the children in the TEACCH classes are not in contact with other children, and are not involved in any regular education instruction. It should be noted that the hearing officer did find that the child's IEP lacked short-instructional objectives, but nonetheless provided sufficient information to develop a detailed instructional plan for the child (see Application of a Child with a Disability, Appeal No 93-34). The IEP goals were provided to the CSE by the child's teacher and related service providers. Nevertheless, the CSE remains responsible for ensuring that the child's IEP meets Federal and State standards with regard to IEP annual goals and short-term objectives. I note that the CSE revised the child's IEP, in December, 1995, in response to the hearing officer's finding.
The central issue in this appeal is whether the BOCES TEACCH program which the CSE recommended for the child would meet her needs, by affording her a reasonable opportunity to achieve her IEP annual goals. At the hearing in this proceeding, the CSE chairperson testified that the child's IEP annual goals reflected her special education needs. She further testified that the TEACCH program would employ a variety of teaching techniques to address those needs, with an emphasis on developing strong language skills. The CSE chairperson also testified that the TEACCH program would provide an opportunity for socialization with age appropriate peers, who could serve as appropriate models for petitioners' child. Respondent's school psychologist testified that the TEACCH program was highly structured, and provided instruction in basic skills to be used by the children "outside their closed environment" (referring to autistic children and the nature of their disability). The school psychologist also testified that notwithstanding her progress in many areas while in her home based program, the child manifested significantly delayed social skills. He opined that the child's placement in a 6:1+2 TEACCH class would provide the child with an opportunity to be with her peers and to develop her social skills. The special education teacher member of the CSE, who had observed the child in her home based program, and had observed two TEACCH classes, opined at the hearing that petitioners' child could achieve an independent level of activities in the TEACCH program. She also opined that the materials used in the TEACCH program would be helpful to the child in achieving her IEP annual goals.
A BOCES special education program supervisor testified that the TEACCH program was intended to meet the needs of autistic and severely communication disabled children, by providing intensive, individual instruction to teach specific skills to students. After the skills are taught, the students begin to independently use the skills which they have been taught. She testified that the TEACCH program did not use Applied Behavioral Analysis, and that the BOCES teacher had discovered that their students did not need a behavior modification program because the students were engaged in their learning activities. Ms. Ryan also testified that each child in the TEACCH class usually received two 30 minute periods of individual instruction by a teacher per day, and that the children received additional individual attention from the two aides assigned to each class, and the related service providers. She testified that the children had the opportunity to model play at intervals throughout the day, and that they received training in activities of daily living skills. Ms. Ryan opined that IEP goals of petitioners' child could be met in the BOCES TEACCH program. With respect to the children enrolled in the TEACCH class recommended by the CSE, Ms. Ryan testified that they were between five and seven years old, and that their skills ranged from the readiness level through the end of kindergarten. She further testified the academic, social, physical, and management needs of the children were comparable to those of petitioners' daughter. I find that her testimony is supported by the profile (Exhibit 32) which was introduced into evidence. (Application of a Child with a Disability, Appeal No. 93-13). While I have considered petitioners' assertions that the proposed TEACCH class did not include higher functioning children and sufficiently verbal children to promote socialization, I find that neither assertion is borne out by the record. I also find that there is no merit to petitioners' assertion that grouping their daughter with children with needs which are similar to hers would not meet the child's educational needs.
Dr. Sudhalter of the Institute for Basic Research, who acknowledged that her personal knowledge of the child was limited to the evaluation which she had performed in July, 1995, and who had no personal knowledge of the BOCES program, opined at the hearing that the child could not learn in the BOCES TEACCH program, and would regress in that program. She premised her opinion upon her belief that the child's attention could not be maintained in the TEACCH program because she would not be constantly refocused by the teacher or two aides. She also assumed that the TEACCH program would be too noisy an environment for the child. Dr. Sudhalter also assumed, but did not explain the basis for her assumption, that certain of the child's skills would not be reinforced in the TEACCH program. She also opined that the amount of individual instruction which the child would receive in the BOCES TEACCH program would be inadequate. However, I note that the two 30 minute periods of individual instruction in the TEACCH program would be comparable to the amount of individual academic instruction which the child received during the 1994-95 school year. At the hearing, the child's teacher during the 1994-95 school year testified that during the period from December, 1994 through June, 1995, she worked with the child approximately two hours per day, and that five or six "breaks" of ten or more minutes were taken with the two hour period of instruction.
With regard to Dr. Sudhalter's assertion that the child required the use of Applied Behavioral Analysis to learn, I must note that the child's speech/language therapist testified that she had not used Applied Analysis. Given the child's significant improvement in speech/language during the period in question, I am unpersuaded that this child can only learn if a particular teaching technique is employed. (Application of a Child with a Handicapping Condition, Appeal No. 90-3; Application of a Child with a Disability, Appeal No. 95-17). The choice of one or more appropriate teaching methodologies is a matter for the child's teacher to decide (Application of a Child with a Disability, Appeal No. 93-46).
Petitioners also contend that the hearing officer inappropriately dealt with the issue of the child's possible regression, if her placement were changed. I disagree with their contention. It is well settled that speculation about a child's adjustment to a proposed new educational program does not afford a basis for finding that the new program is inappropriate (Fuhrmann v. East Hanover Board of Education, 993 F. 2d 1031 [3d Cir., 1993]; Application of a Child with a Handicapping Condition, Appeal No. 90-6; Application of a Child with a Handicapping Condition, Appeal No. 91-26; Application of a Child with a Disability, Appeal No. 95-50).
A CSE is required to recommend an educational placement which would meet a child's special educational needs in the least restrictive environment. Petitioners challenge the hearing officer's finding that the BOCES TEACCH program would be the least restrictive environment for the child, upon the ground that their daughter would have no opportunity to interact with non-disabled children in the BOCES program. Each board of education is required to ensure that a continuum of alternative placements is available to meet the needs of children with disabilities (34 CFR 300.551 [a]). Within that continuum, a program of individual instruction at home, such as the child received during the 1994-95 school year, is one of the most restrictive placements. The recommended BOCES class would be a less restrictive placement than a home based program. However, the question is whether the BOCES class would still be too restrictive. The record reveals that petitioners' child is easily distracted, and has limited social skills. None of the witnesses at the hearing suggested that the child could function appropriately in a group setting larger than the 6:1 + 2 class recommended by the CSE. Upon the record before me, I find that the TEACCH class would be the least restrictive environment for the child.
I have considered petitioners' other contentions, and find that they are without merit.
THE APPEAL IS DISMISSED
|Dated:||Albany, New York||__________________________|
|March 11, 1996||FRANK MUŅOZ|