The State Education Department
State Review Officer

No. 96-29



Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Syosset Central School District

Dominic DiPrisco, Esq., attorney for petitioners

Vanessa M. Sheehan, Esq., attorney for respondent



        Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order directing respondent to provide their preschool age son with twenty-five hours each week of instruction using the applied behavioral analysis (ABA) technique, in petitioners' home, in addition to the instruction provided by respondent. During the 1995-96 school year, respondent paid for the child's full-day program of instruction in the Developmental Disabilities Institute (DDI). The appeal must be dismissed.

        Petitioners' son was born in June, 1992. In April, 1994, he was evaluated by a neurologist, because his parents were concerned that the boy's language skills had ceased to develop after the age of 18 months. The neurologist reported that the child's fine and gross motor skills, and reflexes were normal, and that the results of the child's sensory examination were normal. She further reported that there were no signs of dysmorphic features in her physical examination of the child. The neurologist noted that the child evidenced delays in his expressive and receptive language skills, as well as delays in his social interaction, communicative skills, and play skills, although she did not reveal the basis for her conclusions. She opined that the boy evidenced signs of a communication disorder, which was autistic in type. She recommended to petitioners that the child be placed in a neuro-developmental program, with individual speech/language therapy four times per week, and occupational therapy twice per week.

        In May, 1994, petitioners enrolled the child in the Starting Early program of the Developmental Disabilities Institute (DDI), in Huntington, New York. The Starting Early program provided him with four hours of instruction, five days per week. The DDI program uses the ABA instructional technique. ABA, or operant learning, is an application of the psychological behavioral modification technique of operant conditioning to the instruction of developmentally disabled persons. (Exhibit 6) In addition, the child received speech/language therapy three times per week, and twice weekly psychological services. The child attended DDI under the auspices of the State's Early Intervention program, which is administered by the State Health Department (See Title II-A of the Public Health Law). In addition to the program at DDI, the child was instructed at home for approximately 20 hours per week, by private teachers.

        In October, 1994, the Nassau County Department of Health Early Intervention program notified respondent's committee on preschool special education (CPSE) that the child would soon become eligible, because of his age, to be considered by the CPSE for services as a preschool child with a disability (See Section 4410 [1] [i] of the Education Law). The child continued to attend DDI under the Early Intervention program. In November, 1994, the child was evaluated by a psychologist at the George A. Jervis Clinic of the Institute for Basic Research (IBR). The IBR psychologist reported that the child could identify certain colors, numbers, and body parts, on command, by pointing to the appropriate object or part. She also reported that petitioners had indicated that the child had begun to answer questions with "yes" and "no". On the Vineland Adaptive Behavior Scales, with information provided by petitioners, the child, who was 2-1/2 years old, achieved age equivalent scores of 1.7 in communication, 1.9 in daily living skills, 1.6 in socialization and 2.10 in motor skills. The psychologist opined that the child was benefitting from his current instructional program, and that an intensive, structured, Lovaas-type behavior modification program should be used with the child. For the purposes of this decision, a Lovaas-type behavior program is synonymous with the ABA technique used at the DDI. The IBR psychologist also recommended that the child receive daily speech/language therapy in a small group.

        The child's neurologist re-evaluated the child on January 19, 1995. She reported that the child exhibited marked improvement in his communicative and interactive skills, but nevertheless continued to manifest significant difficulty with both of those skills. She reported that the child was unable to follow complex commands, and at times, engaged in a significant amount of self-stimulatory behavior. The neurologist opined that the child was at risk of regressing, unless he remained in a full-day program with as much 1:1 participation as possible. She urged that the child's then current program not be discontinued.

        On April 10, 1995, the child was referred by his mother to respondent's CPSE. In accordance with the provisions of Education Law Section 4410 (4) (b), the child was evaluated for the CPSE by the DDI. A DDI school psychologist who evaluated the child noted that the child had started in May, 1994 in an enhanced group program with a 1:1 aide, but had been placed in a basic group program with a 1:1 aide in May, 1995, because of the progress which he had made. She noted that the child continued to receive 60-90 minutes of home instruction each day from a teacher employed by a private agency. The psychologist reported that the child was responsive to her directions, when the concepts were familiar to him, but lost his concentration when test items became difficult for him. She further reported that the boy's speech was echolalic and perseverative, and that he used minimal amounts of spontaneous language.

        On the Bayley Mental Scale, the child obtained a mental age equivalent score of 32 months, at a time when he was approximately 36 months old. The psychologist indicated that the child's score on that test was within normal limits, and that he had exhibited relative weakness in expressive language, and relative strength in his non-verbal skills. The child demonstrated an inability to complete some abstract tasks, as well as tasks requiring the use of visual discrimination skills. On the Vineland Adaptive Behavior Scales, the child achieved standard scores of 92 in communication, 73 in daily living skills, 76 in socialization, and 111 in motor skills. His composite score of 84 was reported to be in the moderately low range. On the Achenbach Child Behavior Checklist completed by the child's teacher, there was no area of clinical significance, according to the psychologist. The members of the DDI Interdisciplinary team reported information for the Childhood Autism Rating Scale (CARS). The psychologist reported that the child's total scale of 29 on the CARS fell within the non-autistic range. She recommended that the child continue to receive special education services in a small, structured classroom setting, in order to allow the child to generalize his cognitive gains, and to improve his socialization skills.

        In an educational evaluation which was performed by a DDI teacher on May 22, 1995, the child was reported to have solid cognitive skills at the 30-month level with some scattered cognitive skills up to the 54-month level. The evaluator reported that the child could point to big and little objects, and could count to ten with 1:1 correspondence. He could also point to, and label, most colors, shapes, numerals and letters. She also reported that the boy used two- three word sentences to express his wants and needs. The evaluator reported that the child could sit and attend to a table-top task for as much as ten minutes, and could follow one-step directions and transitions with one verbal prompt. He could also sit during a small group activity without prompts for as long as fifteen minutes, but required prompting in order to actively participate in group activities. She further reported that the child would ignore staff attempts to engage him in other things, when he became involved in a particular activity. The evaluator also reported that the child exhibited solid self-help skills up to the 22-month level, with scattered skills up to the 36-month level. His social/emotional skills were reported to be at the 18-month level, with scattered skills up to the 48-month level. The evaluator noted that the child's parallel play skills were emerging, but associative play skills had not been exhibited. She indicated that the child needed to use more spontaneous speech to comment during less structured playtimes, so that he could communicate with his peers during playtime. The child's fine motor skills were reported to range up to the 42-month level, and he was described as exhibiting scattered pre-writing skills up to the 60-month level. The evaluator recommended that the child continue to receive special education services.

        When tested by a DDI speech/language pathologist in May, 1995, the child was 34 months, i.e., 2.10 years, old. He achieved age equivalent scores of 2.4 in auditory comprehension, 2.5 in expressive communication, and 2.5 in total language. The evaluator reported that the child exhibited a 6-month, or 18%, delay in receptive language skills, and a five-month, or 15%, delay in expressive language skills. However, she cautioned that the boy's expressive language score did not accurately reflect his level of functioning. The evaluator indicated that the child's mean length of utterance was approximately 2.5 to 3.0 morphemes, but that his utterances were very rote in nature. Although the child's score on a test of his speech intelligibility was in the low average range, the evaluator nevertheless reported that the child's intelligibility was severely affected by various articulation errors. She also indicated that the child did not use or comprehend pronouns, or ask questions of a complexity appropriate for three-year old children. The evaluator also reported that the child exhibited severe delays in pragmatic and play skills, and that his spontaneous eye contact remained very poor. She reported that the child exhibited a seventeen-month, or 50%, delay in his play/pragmatic skills. The speech/language pathologist recommended that the child receive individual speech/language therapy once per week, and small group speech/language therapy twice per week, during the 1995-96 school year.

        The child was also evaluated by a DDI occupational therapist, who reported that the child had been receiving thirty minutes of occupational therapy each day. The therapist indicated that the goals of the child's occupational therapy group had been to increase the children's tolerance of sensory input, reduce their hypersensitivity to stimuli, and decrease their self-stimulatory behavior. She reported that the child had mastered all of the group's sensory processing/integration skill goals. However, she recommended that the child receive individual occupational therapy for two hours per week during the 1995-96 school year, to improve his visual/perceptual, self-dressing, and self-feeding skills.

        In a summary of the various evaluations, a DDI team leader reported that the child had made excellent progress with the ABA approach to learning new skills, but that he continued to demonstrate difficulties in the areas of socialization, generalization of cognitive skills, pragmatic communication and articulation, play and self-help skills. The team leader recommended that the child continue to receive special education services in a small, structured class for four to six hours per day with children who are more social and verbal. She also recommended that the child continue to receive speech/language therapy, and occupational therapy. Finally, the team leader indicated that parent training, psychological consultation, and social work support services should be made available on an "as needed" basis, for the 1995-96 school year.

        Petitioners also had the child re-evaluated by the IBR psychologist, in May, 1995. The IBR psychologist noted that the child's adaptive behavior skills had improved between November, 1994 and May, 1995, but she asserted that he continued to display many autistic-like behaviors, because he had not acquired the ability to process language on line, and his eye-contact needed much work. She repeated her prior recommendation that the child's "regimen of therapy" not be modified, until all of his behaviors were age appropriate. Referring once again to the Lovaas-type behavior modification program, the psychologist asserted that the technique needed to be carried out for a minimum of 40 hours per week with a 1:1 ratio of staff to student. She also recommended that the child be exposed to children who do not display autistic-like behavior.

        At the hearing in this proceeding, the CPSE chairperson testified that she noticed a discrepancy between the neurologist's finding in 1994 that the child evidenced an autistic-like communication disorder, and the child's performance on the 1995 Vineland Adaptive Behavior Scales, on which his general adaptive functioning was reported to be in the moderately low level. She also noted that although some of the child's speech-language delays were in the mild range, he evidenced significant delays in spontaneous speech and pragmatic speech. She discussed the matter with the DDI team leader, after which the child underwent an additional speech/language evaluation by the supervisor of DDI's communication disorder department. The supervisor reported that the child evidenced severe delays in the development of pragmatic speech, with only splintered skills at the one-to-two-year old level. He also evidenced a severe delay in verbal expression. She reported that the child's expressive verbalizations were one-to-two word, inconsistently related, utterances. She also reported that the intelligibility of the child's speech was severely affected by his misarticulations. The supervisor reported that the child evidenced moderate delays in auditory comprehension. She recommended that the child receive speech/language therapy three times per week to improve his pragmatic skills, his auditory processing skills, his auditory comprehension skills, and the length and intelligibility of his expressive speech.

        Petitioners met with the CPSE, on June 12, 1995. The CPSE recommended that the child be classified as a preschool child with a disability. It determined that the child required a special education program to address serious delays in his socialization, generalization of cognitive skills, pragmatic communication and articulation, play and self-help skills. The CPSE recommended that he receive six hours of instruction per day, (30 hours per week), on a twelve month basis in the DDI. The recommended class in DDI consisted of six children, a teacher, and two aides. The CPSE further recommended that the child receive 30 minutes of speech/language therapy three times per week, and 30 minutes of occupational therapy twice per week. The individualized education program (IEP) which the CPSE prepared for the child included annual instructional goals related to improving his ability to retain and interpret language, use language to express his wants and needs and to convey information, and a goal to improve his ability to interpret environment events and solve problems through cognitive processes. Additional IEP goals involved improving the child's toiletting and dressing skills. In addition to language goals for the child to achieve in his classroom, the IEP also had separate goals for the child's speech/language therapy. Similarly, it included small-motor and visual-motor goals for the classroom, as well as goals for his occupational therapy.

        Petitioners did not object to the child's proposed classification, or the recommendation that he remain in the DDI instructional program. However, they asked the CPSE to recommend that the child receive more than the 30 hours of instruction per week which DDI provided. The minutes of the CPSE meeting indicated that petitioners asked that the CPSE "...assume fiscal responsibility for 40 hour ABA program." Although various numbers of hours are mentioned throughout the transcript of the hearing, I note that the child's father testified that petitioners sought 25 hours of instruction with the ABA technique per week in a home-based program, in addition to the DDI program, at respondent's expense. The CPSE chairperson testified that she was not prepared to respond to petitioners' request, and sought additional time to consider their request. The CPSE's report to respondent indicated that it would reconvene in the summer to address petitioners' request. On June 12, 1995, the child's father gave his consent to the implementation of the CPSE's recommendation, with the understanding that petitioners still wanted the CPSE to address their request for additional instructional services.

        After the June 12, 1995 CPSE meeting, the CPSE chairperson sent a copy of the child's IEP to the DDI. She requested that DDI indicate whether the child's IEP annual goals and short-term objectives could be met by DDI's program. In a letter dated June 27, 1995, the Director of DDI advised the CSE chairperson that:

"We have reviewed [the child's] IEP and feel that the goals contained therein can be fairly and appropriately addressed in a six hour 6:1:2 placement that includes speech therapy (3 x week), occupational therapy (2 x week) and a parent training program." (Exhibit L)

        In a letter which the CPSE reportedly received in mid-July, 1995 petitioners asked that the frequency of the child's speech/language therapy be increased to five times per week. They also asked that some of the child's IEP goals be modified. Petitioners also asked the CPSE chairperson to indicate a specific date by which the chairperson's investigation of their request for an additional twenty hours per week of home-based ABA instruction would be completed. They indicated that they would seek an impartial hearing, if they did not receive a response by August 1, 1995.

        The CPSE met again with petitioners, on September 18, 1995. It agreed to petitioners' request to increase the child's speech/language therapy in DDI to a total of five times per week. The record reveals that during the 1995-96 school year, the child received individual speech/language therapy twice per week, and speech/language therapy in a group three times per week. The CPSE discussed petitioners' request that their child receive twenty hours per week of instruction using ABA methodology in their home, which was to be an addition to the child's program in the DDI. The CPSE denied petitioners' request on the ground that it could not legally recommend a supplemental instructional program for a child who was enrolled in a full-time instructional program. At the hearing, the CPSE chairperson testified that after the meeting, she discussed the matter with a representative of the State Education Department. She learned from the representative that the CPSE was not legally precluded from recommending an additional instructional program.

        On October 12, 1995, the CPSE reconvened, with a new parent member. The parent member of the CPSE who had attended the two previous meetings had reportedly expressed doubts about his ability to reach a conclusion regarding petitioners' request for additional services. Petitioners' request was discussed, as were certain alternatives, such as providing the child with an individual aide in the DDI, and extending the length of his daily program in that facility. The new parent member of the CPSE asked for additional time to consider the matter. It was agreed that the CPSE would meet again the following week.

        The CPSE met again for the fourth and last time on October 18, 1995. In the interim, since the previous meeting, the CPSE chairperson, the parent member of the CPSE, and respondent's Director of Pupil Personnel Services visited the Rosemary Kennedy Program for Autistic Children of the Board of Cooperative Educational Services for Nassau County. An administrator of the Kennedy program, in which the ABA methodology is also used, reportedly advised the CPSE chairperson and parent member that the educational needs of autistic children could be met in center-based programs, without supplemental home instruction.

        The CPSE received letters from the IBR psychologist who had previously evaluated the child, one of the child's teachers in the home instruction program, and an administrator of the DDI. The IBR psychologist noted that the child's skills had improved, while he received a combination of center-based and home instruction, and asserted that it was possible that the child would not continue to gain skill competency, or begin to lose skills, if his home instructional program did not continue. The child's teacher in the home reported that the child had changed from a non-verbal to a verbal child within the preceding 18 months, and opined that the child's progress was due to the instruction which he received at home. She urged that he be provided with a program of 1:1 ABA instruction at home for at least 25 hours per week. DDI's Associate Director of Children's Day Services asserted that petitioners' request was "...based on research demonstrating that the optimal learning environment for many young children with Autism incorporates structure, intensity of program and continuity of services across settings." (Exhibit Q) He reported that the child was making steady progress academically, and in overall skill development. He indicated that DDI recommended that the child continue in the full-day preschool program of DDI and his home instructional program. He indicated that DDI would coordinate its program goals with the work of the home instructional staff. It should be noted that at the hearing in this proceeding respondent's Director of Pupil Personnel Services testified that the Director of DDI had advised him that DDI would not administer the home instructional program, even if the CPSE recommended that the program be provided.

        On October 18, 1995, the CPSE denied petitioners' request for a supplemental program of home instruction. The written minutes of the meeting indicated that the CPSE determined that the child's educational program at DDI was appropriate, and that it had not been shown that the child needed additional hours of instruction in order to make progress in his DDI placement. The CPSE chairperson testified at the hearing in this proceeding that the CPSE denied petitioners' request for additional services because the CPSE believed that the child's IEP goals were being met in the DDI program.

        The hearing in this proceeding began on November 22, 1995, and ended on February 14, 1996. On March 23, 1996, the hearing officer rendered his decision. He noted that there was no dispute with regard to the child's classification, or the appropriateness of the educational and related services provided by DDI. He found that there was no "official recommendation" by DDI for the addition of a supplemental home instruction program to the child's IEP, and noted that the child's teacher in DDI had urged that the child receive supplemental instruction at home in order to maximize his potential. The hearing officer found that respondent had demonstrated that it was providing the child with sufficient services to enable him to attain appropriate success within his educational program at DDI. In addition, the hearing officer indicated that the testimony of respondent's expert witness had cast substantial doubt upon the validity of the results of the research conducted by Dr. Ivar Lovaas, which petitioners had relied upon in urging that the child receive the supplemental program. The hearing officer referred to a report of research which had been reportedly conducted at the University of North Carolina, and to various publications regarding the education of children with autism, none of which had been introduced into evidence in this proceeding.

        Petitioners contend that the hearing officer's decision should be annulled because he failed to address procedural irregularities within the CPSE process, and relied upon evidence which was not part of the record in this proceeding. They also contend that the hearing officer erred in addressing the issue of the efficacy of ABA because that issue was not in dispute in this proceeding. Petitioners argue that the hearing officer failed to make adequate factual findings to support his determination that the child did not require supplemental instructional services at home. Finally, they assert that the record demonstrates that their child requires a home-based supplemental instruction program, in order to benefit from his instruction, and to avoid regression. They ask that respondent be ordered to reimburse them for the expenses which they have incurred to provide the child with instruction at home using the ABA methodology, during the 1995-96 school year. Respondent argues that the child's IEP was reasonably calculated to confer an educational benefit upon the child, and that he did derive a meaningful benefit from the educational program which the CPSE recommended. It asserts that petitioners sought an optimal level of special education services, which respondent was not legally obligated to provide, and that the record supports the hearing officer's determination.

        Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation for the child's program (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child With a Disability, Appeal No. 96-33). Respondent must show that the recommended program or service is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the program or service is provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h] [1]; 8 NYCRR 200.6 [a] [1]). A school district which fails to provide all of the services which a preschool child with a disability needs to have an appropriate educational program may be required to reimburse the child's parents for the cost of the educational services which they have obtained for the child (Application of the Bd. of Ed. of the Eastchester UFSD, Appeal No. 95-58).

        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). Petitioners do not challenge the IEP's description of their son's needs, or the appropriateness of his IEP goals. The sole issue is the amount of special education services which the CPSE recommended.

        I will first address petitioners' claim that the CPSE process was procedurally flawed. The only matter to which they explicitly refer in their petition is the visit by two CPSE members to the Rosemary Kennedy Autistic Children Program, prior to the October 18, 1995 meeting of the CPSE. Petitioners were not invited to join the CPSE chairperson and the parent member in their visit to the Kennedy program, which I must note was not being considered by the CPSE as a possible placement for the child. The chairperson and parent member each testified that they simply wanted to learn more about educational programming for autistic children. I find that there is no basis in law for concluding that the CPSE's recommendation should be set aside because of the visit by two of its members to the Kennedy program.

        At the hearing, petitioners' attorney closely questioned the parent member of the CPSE about her personal feelings regarding the amount of educational services to be provided to children with disabilities. The parent member testified that she had concluded that petitioners' child did not require more than the 30 hours of instructional services provided by DDI because the child appeared to be doing well in the DDI program, and that the autistic children in the Kennedy program reportedly did well without having supplementary home instructional programs. In response to a series of leading questions by petitioners' attorney, the parent member appeared to say that she would not recommend that any child receive more than 30 hours of instruction per week. However, I find after a review of all of the parent member's testimony that she did consider the needs of the child, and did not deny petitioners' request for more services because of an alleged belief that no child should receive more than 30 hours per week.

        Petitioners also sought to demonstrate at the hearing that the vote by the CPSE member who was Nassau County's representative at the October 18, 1995 CPSE meeting (see Section 4410 [3] [a] of the Education Law) was tainted because of a letter, dated October 10, 1995, which the Nassau County Commissioner of Mental Health had sent to local school superintendents. The County Commissioner enclosed a copy of a State Education Department memorandum, dated August, 1995, setting forth guidelines for the provision of a free appropriate public education to children with disabilities. The State Education Department memorandum indicated that the "typical" school day for a preschool child with a disability would be commensurate with the levels of service which are provided to elementary school children, i.e., five hours of instruction per day. The County Commissioner indicated that the County would "...not support the trend to approve optimal services which are far beyond the guidelines for an appropriate instructional day." (Exhibit R) The Nassau County representative, who is an independent contractor, testified that she had never been instructed by the County how to vote at CPSE meetings, and that Exhibit R had no effect upon her decision in this matter. The County Commissioner also testified that she had never instructed the County representative how to vote at CPSE meetings. Respondent's Director of Pupil Personnel Services testified that he had not seen Exhibit R until the day after the last CPSE meeting, and that he doubted that the CPSE chairperson had seen it before then. Although I believe that the County Commissioner was ill advised to send Exhibit R to local school districts, I am not persuaded that the fact that Exhibit R was sent affords the basis for concluding that the CPSE's recommendation should be annulled.

        I agree with petitioners that the hearing officer erred by relying upon the magazine articles and book excerpts to which he referred in his decision, because that factual evidence was not part of the record upon which he was required to base his decision (8 NYCRR 200.5 [c] [11]; Application of a Child With a Handicapping Condition, Appeal No. 92-31). I also agree with petitioners that the validity of the ABA methodology was not an issue to be determined by the hearing officer. In her opening statement, respondent's attorney indicated that there was no dispute regarding the efficacy of the ABA technique, and that the issue to be determined was the amount of instruction with the ABA method which the child was to receive. Notwithstanding the hearing officer's error, the question to be answered is whether respondent has demonstrated that its CPSE recommended an appropriate program for the child.

        Petitioners' son has at least autistic-like behaviors, but is functioning at a relatively high level. His DDI teacher testified at the hearing that the child had many of the skills needed to "make it," i.e., eventually be mainstreamed for education with his chronological peers. She testified that the child could speak in phrases and answer simple questions, but continued to have difficulty carrying on a conversation with appropriate voice inflection and steady eye contact. Nevertheless, she indicated that the child's median length of utterance, and the amount of his eye contact, had both increased, since September, 1995. She further testified that the child had age appropriate gross motor skills, while his fine motor skills were slightly below average. The teacher testified that the child was making progress in learning activities for daily living skills. She also testified that there had been a significant improvement in the child's ability to transition from one activity to another activity, since September, 1995. Although the child had some good language skills, his teacher opined that the child needed to use those skills in socially appropriate contexts.

        At DDI, the child received approximately two and one-half to three hours per day of discrete trial instruction, either on an individual basis, or with another child. Discrete trial instruction, which the DDI teacher testified was part of the ABA methodology, involves an analysis of each task which a child must perform to acquire a skill. The child is instructed in each task, with the use of specific stimulus materials and specific commands. The child receives reinforcement and prompts, and is required to perform each task 10 to 20 times, until he has mastered it. The DDI teacher testified that this child had benefitted from discrete trial instruction, but that he needed to generalize the skills which he had learned.

        The child's teacher opined that the program of home instruction which petitioners were providing for their son was an integral part of his education. She testified that she did not know what would happen, if the program of home instruction was discontinued, but suggested that the child's ability to generalize might suffer. The teacher also testified that the child required instruction on the weekend in order to avoid "regression," which she described as a loss of skills over the weekend. On cross-examination, the DDI teacher testified that the program of home instruction was necessary to maximize the child's potential. She further testified that a child's parents should be encouraged to learn how to assist their children in learning to generalize the skills which they learn in school, but opined that parents don't have the time to provide discrete trial instruction. I note that the record reveals that petitioners participated in a two-year parent training provided by DDI. The DDI parent training program is intended " teach families the skills they need to encourage generalization and maintenance outside the classroom environment into their child's real home and community settings." (Exhibit 5)

        Respondent's expert witness, Dr. Nancy Shamow, is a psychologist with training in experimental analysis of behavior. She is a principal at the Martin Barell School, a private school which uses the ABA technique to teach autistic children. Dr. Shamow testified that parent training is an important component of ABA to facilitate the generalization of skills in the child's home. She further testified that ABA involves many different ways to teach a child, rather than just discrete trial instruction. Dr. Shamow also testified that there are many variables in determining the effectiveness of an ABA program of instruction, including the skill of the teacher, location, duration and frequency. Dr. Shamow testified that there were no studies to validate the relative effectiveness of instruction at home with the ABA methodology, and that the only data with regard to the regression of a child's skills had been derived from a study in which all instruction with the ABA methodology had been terminated. With regard to the DDI teacher's testimony about regression over the weekend, Dr. Shamow testified that data from the Barell School did not show evidence of a regression in children's skills over weekends. She explained that a child's behavior might initially interfere with his ability to demonstrate a skill, but the skill had not been lost. She also testified that all ABA instructional programs involve teaching to generalize the skills which they have learned, and that ABA programs at the Princeton Child Development Institute and a local BOCES have been successful for their students, without providing any home instruction. Dr. Shamow had reviewed this child's evaluations and other evidence submitted in this proceeding, as well as the transcripts of the first four days of the hearing, but had not evaluated or observed petitioners' son. She opined that the program of home instruction sought by petitioners was not essential to the child having a successful program. She further opined that the child required less discrete trial instruction, and more incidental learning. She concluded that the program recommended by the CPSE was appropriate for the child.

        The child had clearly made educational progress from September, 1995 through January, 1996, in a program which included both the center-based instruction provided by DDI and the home program provided by petitioners. As Dr. Shamow pointed out, there is no empirical method to establish the extent to which the child's program of home instruction has contributed to his progress. Although there appears to have been some contact between the child's DDI teacher and petitioners regarding the home program, I find that there is little evidence to show that it is closely coordinated with the DDI instructional program. The DDI teacher testified that she looked at the data compiled by the child's private teachers when she visited the child's home, approximately once per month. The child's father testified that the program of home instruction is supervised by an individual who is not affiliated with DDI. The DDI teacher testified that she was not part of the child's program of home instruction.

        With regard to the number of hours of ABA instruction needed for a successful outcome, I note that none of the DDI evaluators recommended that this child receive more instruction than that provided by the DDI program, i.e., six hours per day, five days per week. In addition, the Director of DDI, after reviewing the child's IEP, indicated to the CPSE chairperson that "...the goals contained therein can be fairly and appropriately addressed in a 6 hour, 6:1:2 placement..." (Exhibit L) Although the DDI Associate Director of Children's Day Services subsequently urged that petitioners' request for additional services be approved by the CPSE, he referred to research relating to "the optimal learning environment" (Exhibit Q). He did not indicate that the additional services were needed in order for the child to meet his IEP annual goals. The DDI teacher's testimony revealed her desire that the child maximize his potential, but it did not, in my opinion, establish that the child would be unable to obtain meaningful benefit from the education provided by DDI, without an additional program of home instruction. I note that in her testimony, the DDI teacher indicated that, in her opinion, the child had "...flown in the past few months because he is receiving more of the ABA model within the school environment." (Transcript page 572). Her testimony about a possible regression in the child's skills over the weekend was based upon her experience with other autistic children, a majority of whom had the kind of regression to which she referred. There is no evidence in the record that petitioners' child would in fact regress, if he did not receive instructional services on the weekends.

        Although she had not personally observed the child, it does not follow that Dr. Shamow's expert opinions should not be considered (Application of a Child with a Disability, Appeal No. 93-4). She offered a factual basis for the opinions which she expressed. With regard to the child's alleged need for additional 1:1 discrete trial instruction, Dr. Shamow indicated that the records which she had examined revealed that the child was capable of imitating, and that additional 1:1 discrete trial instruction would not be appropriate because the child could learn by other methods of learning (see also Exhibit 8 - Lovaas letter dated November 3, 1993). I also credit Dr. Shamow's testimony that there are other ways of teaching the generalization of skills than by providing 1:1 discrete trial training in a child's home.

        Upon the record before me, I find that respondent has demonstrated that its CPSE recommended an appropriate educational program for the child which would enable him to derive meaningful benefit from his education at DDI, and that it has therefore met its burden under Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra. In view of my finding, petitioners' request that respondent be required to reimburse them for their expenditures for the program of home instruction which they provided during the 1995-96 school year must be denied (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]).




Dated: Albany, New York __________________________
July 24, 1996 ANN R. ELDRIDGE