The State Education Department
State Review Officer

No. 96-58



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 Lawrence Union Free School District

Lauretta E. Murdock, Esq., attorney for petitioners

Jaspan, Schlesinger, Silverman and Hoffman, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel


        Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for an order requiring respondent to reimburse them for the cost of a home-based program of instruction using the Applied Behavioral Analysis (ABA) technique which they provided to supplement the instructional program which respondent provided to their son during the 1995-96 school year. The hearing officer denied their request on the ground that the 30 hours of instruction with the ABA technique which respondent had provided to petitioners' preschool aged son in the Rosemary Kennedy Center of the Board of Cooperative Services of the Sole Supervisory District of Nassau County (BOCES) was appropriate for the child. The appeal must be dismissed.

        Petitioners' son is five years old. In January, 1995, the boy was determined to have a pervasive developmental disorder not otherwise specified (PDD), by a psychologist employed by the New York State Institute for Basic Research and Developmental Disabilities in Staten Island, New York. Dr. Vicki Sudhalter, the psychologist who made that determination, testified at the hearing in this proceeding that petitioners' son met the criteria for PDD because he did not have language skills, was not able to be focused, and had no social relationship with people. During the 1995-96 school year, which is the school year at issue in this proceeding, the child was classified as a preschool child with a disability (See 8 NYCRR 200.1 [ee]). The child's classification is not disputed in this proceeding.

        In March, 1994, petitioners had the child evaluated by a psychologist at the Hebrew Academy for Special Education (HASC), in Woodmere, New York. The boy was 29 months old at the time of the evaluation. Based upon his performance on the Bayley Scales of Infant Development, the child was reported to have a mental age of approximately 17 months, which indicated that the boy had a significant developmental delay. Although the boy's parents told the psychologist that the boy used simple phrases, the psychologist noted that the child did not speak during the evaluation, and that he used gestures to make his wants known. The psychologist reported that the child could not follow simple directions, and exhibited some weakness in performing fine motor tasks. Using information provided by petitioners to assess the child's adaptive behavior on the Vineland Adaptive Behavior Scale, the HASC psychologist reported that the child achieved standard scores of 68 in communication, 94 in daily living skills, 71 in socialization, and 120 in motor skills. The psychologist recommended that the child participate in a structured program providing language enrichment, an opportunity for social interaction, and an opportunity to learn coping skills to improve his ability to tolerate frustration.

        Petitioners enrolled the child in the State's Early Intervention Program (See Title II-A of the Public Health Law). The child reportedly received the services of a psychologist, a special education teacher, an occupational therapist, and a speech/language therapist, in his home. As the child was aging out of the Early Intervention Program in July, 1994, he was referred by his parents to respondent's CPSE, which is responsible for recommending appropriate educational programs for children between the ages of three and five (See Section 4410 [5] of the Education Law). In the manner prescribed by Section 4410 (4) of the Education Law, the CPSE obtained evaluative information about the child. A social worker from HASC, who obtained the child's social history, reported that petitioners were seeking a center-based instructional program with speech/language therapy and occupational therapy, for their son.

        The HASC special education teacher who had been instructing the child at home since April, 1994, reported that the child exhibited cognitive delays in establishing eye contact, performing imitative skills, and playing. She indicated that the child tended to avoid interactions, and could be difficult to engage. The boy's teacher reported that the child had improved his ability to follow directions, but had deficits in his receptive language vocabulary, and required hand-over-hand assistance to point to objects. The child's expressive language vocabulary had increased to approximately 20 words. In the social/emotional domain, the child was described as engaging in mirror play, and attempting to vocalize. However, his interactive skills were delayed. The teacher described the child as functioning within normal limits in activities of daily living. He required assistance with grooming, dressing and toileting. Although the child could complete puzzles of up to 15 pieces on a form board, his teacher reported that the child was uncomfortable with sensorial activities. She further reported that the child was functioning within normal limits, in the area of gross motor skills. The teacher recommended that the child receive a center-based program, with classroom goals of developing his play skills, interactive skills, and receptive and expressive language skills.

        The child's speech/language therapist reported that she was providing the child with 1:1 speech/language services, twice per week. She further reported that the child had made progress in maintaining eye contact, and that he inconsistently responded to his name and followed one-step directions involving the concepts of "in" and "on". The boy appeared to be recognizing some new words each week. He inconsistently imitated single words, and was beginning to spontaneously speak words. On the Bzoch-League Receptive-Expressive Emergent Language Scale, the child achieved age equivalent scores of 12-14 months for both his receptive and expressive language skills, or approximately 20 months below his actual age. The therapist recommended that the child receive individual speech/language therapy three times per week.

        The child's occupational therapist reported that the child engaged in self-directed play with a variety of toys. She noted that the child appeared to have normal visual skills, but had poor eye contact. The therapist indicated that the child's fine motor skills remained at the 15-24 month old level. She recommended that the boy receive occupational therapy twice per week to help him develop appropriate motor planning, imitative play, fine motor and interactional skills. On August 30, 1994, the CPSE recommended that the child be classified as a preschool child with a disability. It further recommended that the child be educated on a 12-month basis in a HASC special education class, with a child to adult ratio of 10:1+2. The CPSE also recommended that the child receive individual speech/language therapy three times per week, and individual occupational therapy twice per week. The individualized education program (IEP) which the CPSE prepared for the child included annual goals which involved improving his play skills, matching skills, and increasing his ability to pay attention and to remain on task. The child's mother consented to the implementation of the child's IEP for the 1994-95 school year. The child reportedly attended school in the HASC from September, 1994 until August, 1995.

        The child's mother was reportedly concerned about the child's progress in the HASC program, early in 1995. At her request, the CPSE chairperson began to explore the possibility of enrolling the child in the BOCES program, in place of the HASC program. On March 3, 1995, the CPSE met to review the child's program. The child's mother reportedly asked the CPSE to support her request for funding of a home-based program of instruction using the ABA technique, which petitioners had begun, at their expense, in February, 1995. However, the CPSE did not recommend any change in the child's educational program or placement.

        The CPSE met again on April 27, 1995, to conduct its annual review of the child. In preparation for that meeting, the child's teacher, speech/language therapist, and occupational therapist in the HASC provided the CPSE with written reports about the child's progress. The child's teacher reported that the child demonstrated an ability to match and sort familiar objects by color, shape, and size with minimal adult assistance. She further reported that the boy could respond to verbal commands, and followed all classroom routines. She noted that the child's ability to initiate and maintain eye contact had improved. He reportedly had difficulty in group activities, and required adult assistance to remain on task. His teacher indicated that the child imitated movements and words during finger plays and song. She further reported that the child's fine motor skills had improved, and that his gross motor skills were age appropriate. The boy reportedly continued to need adult assistance in performing many of his activities of daily living skills. The teacher indicated that the boy's expressive language vocabulary had increased to well over 100 words, and that he could spontaneously request food and label familiar objects. She noted that the child was beginning to use two words together, in order to communicate. The child's speech/language therapist reported that the child had made gains in pragmatic speech, receptive and expressive language. She recommended that he continue to receive individual speech/language therapy, three times per week. The child's occupational therapist reported that the child had made progress during the 1994-95 school year. She noted that he could build an eight-block tower, and complete a six-piece puzzle, provided that he was constantly redirected to remain on task. The occupational therapist recommended that the child continue to receive individual occupational therapy, twice per week.

        On April 27, 1995, the CPSE recommended that the child remain classified as a preschool child with a disability during the 1995-96 school year. It also recommended that the child be enrolled in a 6:1+2 special education class in the private Little Village School, on a twelve-month basis, beginning in September, 1995. The CPSE further recommended that the child receive individual speech/language therapy five times per week, and individual occupational therapy twice per week. Petitioners reportedly asked the CPSE to recommend that their son receive a home-based instructional program, in addition to the center-based program of the Little Village School. The CPSE declined to recommend that the child receive the additional program. The boy's IEP for the 1995-96 school year included annual goals for improving his matching and sorting skills, as well as his attending and play skills. Other IEP goals related to improving the child's interactive skills with peers, and improving his self-help skills in the area of activities of daily living. The boy's speech/language IEP goals related to improving his pragmatic speech, e.g., maintaining eye contact during verbal interactions, and improving his expressive and receptive language skills.

        In September, 1995, the child entered the Little Village School. Although he reportedly received the services which were mandated by his IEP, his mother was dissatisfied with his placement because his class allegedly did not have any socially appropriate role models. The CPSE chairperson testified at the hearing that petitioners sought to have the child placed in the BOCES program. On September 28, 1995, the CPSE recommended that the child be enrolled in a 6:1+2 BOCES special education class. However, it made no other changes in the child's IEP. The child reportedly entered the BOCES program, on or about October 11, 1995.

        At the hearing in this proceeding, the CPSE chairperson testified that the child's home-based program was not discussed at the CPSE meeting on September 28, 1995. However, the chairperson discussed this matter separately with the child's mother, who asked that the CPSE consider her request that the child's IEP be amended to provide that he should receive a home-based instructional program, as well as the BOCES center-based program. A CPSE meeting was scheduled to take place on November 6, 1995. The notice of the intended meeting indicated, in part, that:

"You may be accompanied by anyone you wish when you attend the meeting. However, you must notify me [the CPSE chairperson] at 295-6407 if you intend to bring an attorney. District regulations mandate that our school attorney be present at such meetings. Meeting will be canceled and rescheduled if you have not pre-advised us of your attorney's presence." (Exhibit 29)

        At the CPSE meeting on November 6, 1995, Ms. Murdock, the attorney representing petitioners in this appeal, appeared with the child's mother. Although Ms. Murdock reportedly indicated to the CPSE that she was attending the meeting as a friend of the parents, rather than as their attorney, the CPSE nevertheless adjourned its meeting until November 21, 1995. By letter dated November 8, 1995, the child's mother challenged the CPSE's refusal to meet with her on November 6, and asked the CPSE chairperson for an impartial hearing.

        On November 21, 1995, the CPSE convened, with each of its required members being present. In addition, a representative of Nassau County attended the meeting (See Section 4410 [3][a] of the Education Law), as did two of respondent's attorneys. The child's mother was accompanied to the meeting by Ms. Murdock and a Mr. DiPrisco, both of whom described themselves as friends of the parent. I note that both are attorneys. The CPSE meeting was tape recorded. The tape recording and a written transcript of the CPSE meeting are part of the record which is before me. The child's mother indicated that she was "very happy" with the BOCES program, but she asked that respondent pay for 24 hours of home-based instruction per week, in addition to the 30-hour instructional program of the BOCES. Ms. Murdock stated that petitioners sought funding for 25 hours of home-based instruction per week. The child's mother asserted that the child required such additional instruction so that he would not "shut down", and engage in self stimulatory behavior, on weekends. Ms. Randi Horowitz, the child's teacher in the BOCES program, answered several questions about the child's program. She reported that the child had adjusted well to the routine of her class, and that he was working on 15 to 20 "programs" within the ABA model. Ms. Horowitz indicated that petitioners' son was making progress in all of those programs. The CPSE did not recommend that the child's IEP be changed to include the home-based program sought by petitioners.

        On November 28, 1995, the child's mother requested that an impartial hearing be held because she was disappointed with the CPSE's recommendation. The hearing began on February 6, 1996. On May 16, 1996, which was the fifth day of the hearing, petitioners asked the hearing officer to recuse himself, for various reasons. Petitioners' attorney asserted that the hearing officer should recuse himself because be had recently rendered a decision denying a request by the parents of a child in the Syosset school district for public funding of a home-based ABA program. She further asserted that the hearing officer had manifested his personal dislike of her, had rendered evidentiary rulings in an unfair manner, and had engaged in ex parte communications with respondent's attorney. The hearing officer denied petitioners' request that he recuse himself, on the grounds that petitioner should have made their request earlier, and that his decision in the Syosset case did not predispose him to rule for respondent in this proceeding. He also denied any animosity towards petitioners' attorney. The hearing concluded on June 24, 1996.

        The hearing officer rendered his decision on June 30, 1996. He noted that there was no dispute about the child's classification, and that petitioners did not want to replace the BOCES program with another program. The hearing officer further noted that one of petitioners' expert witnesses, Dr. Sudhalter, had testified that the BOCES program had been a good program for the child, and that their second expert witness, Ms. Joanne Gerenser, had acknowledged that the child was making progress in the BOCES program. He found that respondent had met its burden of proving that it had offered the child an appropriate program in the BOCES. Having determined that respondent had met its legal obligation to provide an appropriate educational program, the hearing officer denied petitioners' request that they be reimbursed for their expenditures to date in providing a home-based instructional program to their son.

        Petitioners contend that the hearing officer should have recused himself because he had previously conducted a hearing for the Syosset Central School District, in which he denied the request by the parents of a preschool child with a disability for public funding of a home-based ABA program in addition to the child's center-based program. I must note that I sustained the hearing officer's decision, when it was appealed (Application of a Child with a Disability, Appeal No. 96-29). Each hearing officer's decision must be based solely upon the record which is before him or her, as must the SRO's decision (8 NYCRR 200.5 [c] [1]; 8 NYCRR 279.10; Application of a Child with a Disability, Appeal No. 96-19). The Regulations of the Commissioner of Education provide that an impartial hearing officer "...shall not have personal or professional interest which would conflict with his or her objectivity in the hearing..." (8 NYCRR 200.1 [s][1]). Petitioners offer no authority for the proposition that the hearing officer was biased against them, or should have recused himself at their request, merely because he had rendered a decision in the Syosset case. I find that their contention is without merit.

        Petitioners assert that they were deprived of a full and fair opportunity to present their case at the hearing in this proceeding. They contend that the hearing officer issued inconsistent rulings, improperly limiting their cross-examination of witnesses, and made intemperate remarks at the hearing. A hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record (Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for concluding that a hearing officer was biased. I have carefully considered the entire transcript of the hearing, which exceeds 1200 pages, and have given special attention to the transcript pages cited by petitioners in their brief (pp. 158, 172, 184, 359, 362, 373, 382, 403-404, 495-496, 511-512, 687, 708 and 782). The transcript reveals that the attorneys for both parties vigorously contested the matter. On more than one occasion, the hearing officer, who is not an attorney, urged both counsel to keep the focus of the hearing on the child. I note that in the first instance cited by petitioners (p. 158), the hearing officer attempted to ask petitioners' attorney a question. Petitioners' attorney told the hearing officer: "I'm not finished yet, Mr. Davis". At that point, Mr. C. Leonard Davis, who conducted the hearing, responded by stating:

" Just a minute, I resent the way you're talking to me now and both of you, calm down and let's have a hearing and act civil to each other, we won't get anywhere bantering back and forth, our main concern is [the child] and if we don't get off the personality conflicts, we're not going to get anywhere."

        Shortly thereafter, both counsel were once again engaged in a colloquy about the examination of a witness. The hearing officer interrupted the discussion with:

" Would you be quiet, let's stop it now, please, we're acting like children here" (page 172).

        During the extensive cross-examination by petitioners' attorney of a BOCES assistant principal, whose direct testimony had been quite brief, the hearing officer stated that:

" I want to move it along and you are going around and around. I don't mean to critique what you are doing, but you are taking valuable time and part of my responsibility is to move it along and if you are not going to act properly I will ask you to remove yourself" (page 995).

        On another occasion, petitioners' attorney objected when respondent's attorney asked the child's BOCES teacher whether she knew if the child was taking medication. The hearing officer responded by stating:

" I think that's a silly objection, it's a straight forward question and I'm going to allow it and I'd rather not have objections made frivolously" (page 708).

        Although the hearing officer's remarks could have been expressed in a more judicious manner, I am not persuaded that they evidence bias on his part against petitioners. I note that the hearing officer also spoke sharply to respondent's attorney:

"Be quiet, I'll ask you to leave the room, stop talking right now because somebody else has the floor ... You say one more word and you're out of here, be quiet, I'm telling you Mrs. Murdock has the floor" (pages 1140-1141).

        Petitioners contend that the hearing officer repeatedly prevented their attorney from cross-examining respondent's witnesses on the most fundamental issues. One of the examples they offer is the hearing officer's refusal to allow their attorney to ask the parent member of the CPSE whether any of her children received special education services from respondent. I find that the hearing officer properly barred the question. By definition, a parent member of the CPSE must be the " ... parent of a child with a handicapping condition who resides in the school district and whose child is enrolled in a preschool or elementary level program ... " (Section 4410 [3][a] of the Education Law. A child with a handicapping condition is defined as one who " ... can only receive appropriate educational opportunities from a program of special education" (Section 4401 [1] of the Education Law). However, information about the parent member's child is confidential (34 CFR 300.571 [a]).

        Petitioners also challenge the hearing officer's refusal to allow their attorney to ask the child's teacher about the services which she allegedly provided in home-based programs to other children. The hearing officer ruled that the question was irrelevant. Although respondent arguably opened the door for the question when its attorney asked the teacher whether any of this child's classmates had home-based programs, I agree with the hearing officer that the question was irrelevant for the purpose of establishing the needs of this child. I have considered petitioners' contentions with regard to the scope of cross-examination allowed by the hearing officer. I find that the extensive record demonstrates that petitioners were afforded an adequate opportunity to cross-examine witnesses with regard to the issues which were germane to this proceeding.

        Petitioners argue that the hearing officer's evidentiary rulings were inconsistent. They assert that the hearing officer gave respondent's attorney free reign in questioning witnesses, while precluding petitioners' attorney from asking similar questions. As noted above, respondent's attorney asked the child's teacher for certain information about the other children in the boy's class. Petitioners' attorney was precluded from asking respondent's Supervisor of Pupil Personnel Services about the services which respondent provided to other children with disabilities, in an effort to demonstrate that respondent had a policy with regard to certain types of special education services. However, that issue could have been approached far more directly, without burdening the record with a description of the services respondent provided to other children.

        Two other evidentiary rulings by the hearing officer must be addressed. Over petitioners' objection, the hearing officer allowed respondent to introduce evidence about the child's performance and progress after November 21, 1995, the date when the CPSE decided not to recommend that the child receive a home-based instructional program in addition to the center-based BOCES program. The hearing officer noted that the child had entered the BOCES program only a short time before the CPSE considered petitioners' request for a home-based program, and found that it would be prudent to consider evidence of the child's performance in the BOCES program after November 21, 1995. I find that the hearing officer correctly received evidence of the child's performance in the BOCES program after November 21, 1995. The twin criteria for admission of evidence into the record are relevance and reliability (Application of a Child with a Disability, Appeal No. 95-20). The issue to be determined by the hearing officer was whether the educational program, recommended by the CPSE was appropriate to address the child's special education needs. Evidence of the child's progress in that program was clearly relevant to the issue of the appropriateness of his program. Petitioners have not challenged the reliability of that evidence.

        On the final day of the hearing, respondent called Dr. Nancy Shamow to testify as an expert witness. Dr. Shamow, who is the principal of the Martin C. Barell school, was presented as an expert witness with regard to the education of children with PDD, and the use of the ABA methodology to teach those children. Respondent's attorney provided copies of the child's pertinent records to Dr. Shamow. Dr. Shamow also observed the boy in his BOCES classroom, and discussed the boy's program with Ms. Horowitz, the child's teacher. Petitioners asked the hearing officer to bar Dr. Shamow from testifying because Dr. Shamow had evaluated their son without their consent. The hearing officer denied petitioners' request. He noted that parental consent to an evaluation is required only for the initial evaluation of child (See 34 CFR 300.504 [b][1]; 8 NYCRR 200.5 [b][1]).

        In this appeal, petitioners argue that the hearing officer should not have admitted Dr. Shamow's testimony into the record because her observation of the child was "unlawful". I find that the hearing officer correctly found that petitioners' consent was not required before their son could be "evaluated", because neither Federal nor State regulation required that they consent to the evaluation. However, Federal regulation requires that a school district give written notice to a child's parents, when the district proposes to initiate or change the child's evaluation (34 CFR 300.504 [a] [1]). State regulation requires that a school district give written notice to parents, when the district initiates a reevaluation (8 NYCRR 200.5 [a] [1]). The term "reevaluation" is not limited to the triennial evaluation which must be obtained for each child (Application of a Child with a Disability, Appeal No. 93-47). Respondent contends that it was not required to give notice of its intent to have Dr. Shamow conduct an "observational assessment" of the boy. Federal regulation defines the term "evaluation" to mean:

"...procedures used in accordance with 300.530-300.534 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs..." (34 CFR 300.500 [b])

        In this instance, Dr. Shamow was asked by respondent's attorneys to observe the child, in preparation for her testimony at the hearing. Dr. Shamow testified that she had discussed the results of her observation with the attorneys, but had not discussed them with the CPSE, and had not prepared a written report for respondent. An observation is a required component of an initial evaluation (8 NYCRR 200.4 [b] [4] [viii]). Although the CPSE had already made its recommendation for the child's educational program, I find that Dr. Shamow's observation was intended to provide respondent with information about the child's special education needs. I further find that the notice of evaluation provisions of Federal and State regulations were applicable to Dr. Shamow's observation, and that respondent failed to comply with those regulatory requirements. For the purposes of this decision, I will not consider Dr. Shamow's testimony with regard to what she observed about the child in the BOCES classroom. However, there is no legal reason to disregard her testimony about PDD and ABA.

        Petitioners contend that the CPSE failed to consider the individual needs of the child, and that its recommendation was premised upon extraneous considerations, such as the cost of the home-based program and the fact that the individual service providers were not approved by Nassau County. They rely upon the statements made at the November 21, 1995 CPSE meeting by the CPSE chairperson, the Nassau County representative, and the CPSE parent member. The chairperson stated, in part, that:

" It is not a bottomless pit, and its not funding that goes on forever. There has to be a line drawn in order to insure that other children down the road will be able to receive their services and attend center base programs. If we are going to extend the home bound services on weekends, we are clearly going to the sky. The sky is the limit. Yes, that sounds wonderful to meet your child's needs, but there are other children to consider" (Exhibit 46, page 47).

        At the hearing, the CPSE chairperson testified that she did not raise the issue of funding at the CPSE, and that petitioners' attorney raised the issue. She further testified that she had already expressed the opinion that the BOCES was providing an appropriate educational program for the boy. The transcript of the CPSE meeting reveals that the chairperson had previously opined that the boy was receiving an appropriate program (Exhibit, page 31). It also reveals that her "bottomless pit" remark was in response to Ms. Murdock's question: "You are telling us that there is no more?" (Exhibit 46, page 47). Ms. Murdock's question was in response to a statement by the parent member about her own attempts to provide her disabled child with more services than the school district or her insurance company would provide. The parent member indicated that she sympathized with the petitioners but that " ... I don't think it is the School District's financial or the County's financial disability [responsibility]" (Exhibit 46, page 47). It should be noted that at the time in question, Nassau County, not respondent, was financially responsible for the cost of preschool special education services (Section 4410 [11] of the Education Law), and would be partially reimbursed by the State. The Nassau County representative, Ms. Antonia Monson, was asked the procedure for becoming an approved service provider. However, the CPSE meeting transcript reveals that she concluded that the child was receiving an appropriate education at the BOCES (Exhibit 46, page 56). At the hearing, Ms. Monson testified that she based her decision at the CPSE meeting on the fact that the child's BOCES teacher had reported that the child was making progress in her class, and that the funding of the services requested by petitioner was not an issue. I find that petitioners' contention about the basis for the CPSE's recommendation is not supported by the record.

        Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation (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 CSE 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 the child's needs, or the appropriateness of his IEP goals. The sole issue is the amount of special education services which the CPSE recommended.

        The BOCES program in which petitioners' child was enrolled for the 1995-96 school year provided approximately six hours per day of structured activities. There were six children in the boy's class. Ms. Horowitz, the child's teacher, is certified by the State Education Department to teach both elementary and special education. She was assisted in the classroom by two aides. Ms. Horowitz testified that she, a school psychologist, an occupational therapist, a speech/language therapist and a building administrator held team meetings, on an as needed basis. She described the BOCES curriculum as involving a variety of attending prerequisite learning skills, academic skills, fine motor activities, and "independent tasks," e.g., sorting, completing puzzles and play programs. Ms. Horowitz testified that the ABA methodology involved breaking down tasks into their smallest components, using reinforcers to encourage correct responses by the child, using behavioral management plans to promote positive behavior and discourage negative behavior, and carefully recording the child's responses. Data about the child's responses was recorded during each of the five "task sessions" which occurred during the school day. Ms. Horowitz maintained a "book" about the child, in which she recorded his performance on various tasks. In determining whether a child had mastered a particular task, Ms. Horowitz required the child to perform the task in different contexts, e.g., with different adults, in various locations, and with different materials. She testified that mastery of a task required an 80-90 percent success rate, when randomly presented to the child, in different contexts. When mastery of a task had been achieved, the child was given a new "program", or task, by Ms. Horowitz, who decided what programs to use, and when they would be introduced.

        Ms. Horowitz testified that the task sessions, during which data about the child's performance was recorded, involved about 15 hours per week. One of the five daily task sessions was used to allow the child to make up work missed when he was removed from class for related services. Ms. Horowitz testified that the child generally worked with one other child, in an instructional group of two, which provided an opportunity for observational learning. She further testified that observational learning had helped the child to learn to pay attention, even when he was not engaged in a 1:1 learning situation with his instructor. Ms. Horowitz also testified that the child's behavior was carefully observed, and that he was not allowed to engage in manipulative or self-stimulatory behavior.

        The child's teacher was asked at the hearing about the skills which the child had when he entered her class in October, 1995. She testified that he could initiate motor movements demonstrated by an instructor, follow one-step commands, e.g., stand up, sit down, imitate certain word and phrases, identify colors, manipulate objects in simple puzzles, and identify certain objects and actions in pictures. It should be noted that her description of the child's skills as of October, 1995, is similar to the description of his skills provided by HASC in March, 1995 (Exhibit 18). Ms. Horowitz testified that she had to reteach certain skills to the child because he performed them with inappropriate attending behavior. She further testified that the child had initially focused upon one instructor, and that she had modified his behavior, so that he could generalize his behavior, i.e., perform tasks for other instructors.

        In a progress report which she prepared in January, 1996 (Exhibit 49), Ms. Horowitz indicated that the child had entered her class with a high rate of maladaptive behavior, including self-stimulation (facial grimaces, body stiffening), and task avoidance (hitting, delayed echolalic speech). She immediately instituted a token economy (behavior management plan) to address the child's maladaptive behavior. The child's initial behavior management plan was discontinued, because his maladaptive behavior did not decrease. A revised behavior management plan which allowed the child to choose between two reinforcing activities before each work session was instituted in December, 1995. Ms. Horowitz indicated in the child's progress report that the child's task avoidance behavior had been considerably reduced as a result of the revised behavior management plan.

        In a separate progress report dated January 6, 1996 (Exhibit 53), Ms. Horowitz indicated that the child was making progress in all areas which related to his IEP. She reported that the child could consistently match pictures with identical or similar pictures, and could sort objects by shape, size, and color. She further reported that the child was working on generalizing pictures of food, animals, and clothing to pictures of other food, animals, and clothing. Ms. Horowitz indicated that the child could correctly answer "what's a ___?", by identifying an object, and placing it in the correct category, e.g., an apple is a food. She also indicated that the child was more consistently and accurately responding to questions in the observational learning setting. Ms. Horowitz reported that the child was learning to hold a pencil with an appropriate three-point grasp, and working on certain pre-writing activities. With regard to the child's speech/language skills, his teacher reported that the child could describe the activities of children in pictures, given the question "what's ___ doing?" She also reported that he had mastered the goal of responding with a complete sentence to the question "what color is ___ ?" Ms. Horowitz also testified that, since entering her class, the child had learned to read nine sight words, and could count with correspondence to 10.

        Petitioners do not dispute that the child made progress toward achieving his 1995-96 IEP goals. They also do not challenge the competency of Ms. Horowitz to provide an ABA instructional program to the child. However, they do not concede that Ms. Horowitz's classroom is the primary source of the child's educational progress. When asked whether the home-based program had anything to do with the child's progress in school, Ms. Horowitz testified that she had no way of measuring the effect of the home-based program upon the child's performance. However, she further testified that it has always been beneficial for a child to practice at home the skills which he or she had learned in school. She further testified that she could not predict what would happen if petitioners discontinued the child's home-based program. Ms. Horowitz testified that she communicated with the child's parents on a daily basis through a "communication book", in which she would occasionally ask them to review with the child a task or skill which he had learned in school. However, she testified that the requested review did not require the use of the discrete trial technique of the ABA methodology, but was simply an informal assessment of the child's ability to generalize skills in other settings.

        Dr. Vicki Sudhalter, the psychologist who had evaluated the child for petitioners in January and August, 1995, testified that the best way to provide an ABA program was a combination of center-based and home-based instruction with that methodology. She further testified that research indicated that 40 hours of instruction with the ABA technique per week was effective. She opined that the child should continue to receive a home-based program. Dr. Sudhalter acknowledged that she had only worked with the child for approximately 20 minutes when she evaluated him in January, 1995, and that she was unfamiliar with the BOCES program. Petitioners' second witness was Ms. Joanne Gerenser, who was the Executive Director of Eden Programs. She testified that Eden had a preschool program which provided an intensive ABA program. In January, 1995, petitioners asked Ms. Gerenser to establish a home-based instructional program for their son. She helped them set up the program, and trained the individuals who have worked with the child. Ms. Gerenser reported that the child had made substantial progress after the home-based program of instruction was implemented in February, 1995. She opined that the BOCES program alone was "probably not" capable of meeting the child's educational needs. She acknowledged that the child was making progress in his BOCES placement as of November, 1995, and indicated that she assumed that he had continued to make progress in that placement. On cross-examination, she acknowledged that it would be difficult to determine whether the child would receive any educational benefit in the BOCES program without his home program, because he had always had the benefit of the home-based program while in the BOCES. Ms. Gerenser also acknowledged that the child was making progress on tasks or skills which were being taught to him solely in the BOCES.

        Petitioners also rely, in part, upon the written opinions of Dr. Ivar Lovass, a recognized expert in the use of the ABA methodology. In research which he had conducted in 1987, Dr. Lovass reported that a group of autistic preschool children who had received an average of 40 hours of ABA per week over a two-year period achieved substantially more success in regular education first grade classes than did a control group of children who had received less than 10 hours per week of ABA instruction. However, Dr. Lovass cautioned that the results which he had obtained might not be replicated by another investigator (Exhibit A-1). In 1993, Dr. Lovass wrote that it had indeed been "unexpectedly difficult" to replicate the findings of his 1987 study (Exhibit A-5). Nevertheless he opined in November, 1993, that an appropriate therapeutic intervention for a child diagnosed as autistic would involve 1:1 instruction for the first six months, of about 40 hours per week (Exhibit A-7). In any event, I must note that I am required to make my decision on the basis of the facts in the record before me with regard to the individual needs of the child, rather than a general premise that all PDD children require at least 40 hours of ABA.

        I find that the educational program which the CPSE recommended for the child provided him with a highly structured and supervised setting to address his deficits in attending, academic, and interpersonal skills. The record shows that the child was making significant progress toward his IEP goals, while in the BOCES program. Parental participation in the education of a PDD child is undoubtedly necessary. The record reveals that the BOCES teacher had continuous contact with the boy's mother about his progress and activities, and that she had made visits to the child's home to discuss his instructional program with petitioners. A BOCES principal testified that the BOCES also provided for parental training, although the record is unclear about the extent to which petitioners have availed themselves of this service. I have carefully considered the documentary and testimonial evidence in the record. I find that it does not establish that this child requires the 25 additional hours of ABA instruction which petitioner sought in order to obtain a meaningful benefit from his education in the BOCES program. While I recognize that the child has received a home-based program during all of the time that he has been in the BOCES, it is nevertheless a matter of pure speculation to conclude that he must have that program in order to continue to make progress in his BOCES program. Accordingly, I find that the hearing officer correctly determined that respondent had met its burden of proof under Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra.





Dated: Albany, New York __________________________
October 4, 1996 ANN R. ELDRIDGE