The State Education Department
State Review Officer

No. 97-67


Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Advocates for Children of New York, attorneys for petitioner, Sonia Mendez-Castro, Esq., of counsel

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, K. Lesli Ligorner, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioner's son be enrolled in a specialized instructional environment-III (SIE-III) class in respondent's P.S. 329 for the 1997-98 school year. The hearing officer denied petitioner's request that the board of education be required to pay for her son's placement in the Brooklyn Blue Feather Early Learning Center, which is a private facility operated under the auspices of the Association to Help Retarded Children. The appeal must be sustained in part.

        Petitioner's son, who is five years old, has been classified by the CSE as autistic. In a 1995 psychological evaluation, he was reported to have exhibited autistic-like features. The boy was re-evaluated in January, 1997 by a school psychologist, who reported that the child was untestable because of his limited attention span and difficulty orienting himself to the evaluator. Using information provided by the child's teacher, the school psychologist reported that the child had achieved scores of 56 for communications, 58 for socialization, 64 for daily living skills, and 61 for motor skills on the Vineland Social Maturity Scale. He also reported that the boy's verbal skills were limited to undifferentiated vocalizations. The child was reportedly oblivious to his classmates, but he responded to intensive interaction by familiar adults. Another school psychologist who evaluated the child in May, 1997, reported that the child fit within the definition of a child with a pervasive developmental disorder. The child's classification as autistic is not disputed in this proceeding.

        At the hearing in this proceeding, the child's mother testified that her son stopped talking around the age of two, and he would not socialize with others. The child received private speech/language therapy from October, 1994 until July, 1994. In September, 1995, the child was placed pursuant to Section 4410 of the Education Law as a preschool child with a disability in the William O'Connor School, a private preschool operated by the New York League for Early Learning in Brooklyn. The record does not reveal the extent of his progress in that preschool during the 1995-96 school year.

        In July, 1996, the boy began a program of part-time home instruction which used the applied behavioral analysis (ABA) methodology. An instructor employed by the boy's parents provided two hours of ABA instruction three times per week. The ABA methodology generally involves breaking down a skill or task into many small steps, which the child is then taught to do in a series of discrete trials. The child's performance is carefully monitored and recorded. After the child has mastered a skill or task in the carefully controlled environment, i.e., a discrete trial, the child's teacher then attempts to have the child "generalize" his newly acquired ability, i.e., apply that ability in other settings, or contexts.

        The child returned to the William O'Connor School for the 1996-97 school year. He was enrolled in a prekindergarten class with a child to adult ratio of 8:1+3. At the hearing in this proceeding, Ms. Dawn Cardieri, the child's teacher for the 1996-97 school year, testified that she had employed the ABA methodology in her classroom. She further testified that the boy had made progress during the 1996-97 school year in learning how to sit still, and maintain eye contact, but that he was still nonverbal. In an educational progress report which she prepared in November, 1996, Ms. Cardieri indicated that petitioner's son could match letters and colors, nest objects, sort shapes, and point to pictures with minimal prompting. The boy was unable to string beads, cut with scissors, or screw/unscrew container tops. She reported that the child made his needs known by pointing, physical direction, or tantrumming. The boy was able to use sign language for "more" and "give me". Ms. Cardieri also reported that the child's imitation and play skills were significantly delayed, and that he required much redirection and prompting to remain focused.

        Petitioner's son also received speech/language therapy, occupational therapy, and physical therapy at the William O'Connor School during the 1996-97 school year. His speech/language therapist reported in November, 1996 that the boy inconsistently responded to his name and the names of common objects. She also reported that the child had a significant language impairment which was atypical of any developmental sequence. The boy's occupational therapist, in her November, 1996 report about the child, indicated that his fine motor skills were at the 18-23 month level, representing a two and one-half year delay. She noted that he would continue doing tasks which he enjoyed for as long as ten to fifteen minutes, with prompting, and that he appeared to be calm when wearing a weighted vest. The child's physical therapist reported that the child frequently walked on his toes. He also had a stiff legged gait because of decreased eccentric control at his knees. The physical therapist reported that the child's gross motor skills were at the twenty-four month old level.

        On April 16, 1997, respondent's CSE met with the child's parents and his teacher to recommend a classification and placement for the child during the 1997-98 school year, which was his first year as a school aged child. The CSE recommended that he be classified as autistic, and that he be placed on a twelve-month basis in a SIE-III class with a 6:1+1 child to adult ratio. It also recommended that the child receive individual speech/language therapy three times per week, individual occupational therapy three times per week, and individual physical therapy three times per week. By notice which was dated June 16, 1997, and which was received on June 19, 1997, respondent informed petitioner that a placement would be available for her son in P. 811, which is a special education "school" within respondent's P. 329 in Brooklyn.

        In a report dated May 22, 1997, the child's speech/language therapist indicated that the child had made some progress, especially with regard to his ability to pay attention and remain focused. The boy's teacher in the William O'Connor School prepared a written report dated May 21, 1997, in which she indicated that the child was still nonverbal, and that he displayed poor eye contact, and was easily distracted. She described him as having a low tolerance for frustration. The teacher reported that the boy was unable to function appropriately within a small group, and she indicated that he worked best in a 1:1 environment. She recommended that he continue to be instructed with the ABA methodology.

        The record reveals that the CSE reconvened on July 2, 1997. Although the boy's individualized education program (IEP) was revised to reflect the May, 1997 reports of his teacher and related service providers, the CSE adhered to its previous recommendation that the child be placed on a SIE-III class for the 1997-98 school year. The impartial hearing in this proceeding was conducted on July 23, 1997.

        In his decision, which was rendered on August 7, 1997, the impartial hearing officer noted that one of the parents' objections to the recommended SIE-III placement was that respondent's educational program did not make sufficient use of the ABA teaching methodology. He further noted that respondent's site supervisor had testified that the ABA would be used, albeit not exclusively, in the SIE-III placement. The hearing officer also noted that the parents had been unable to obtain a class profile of the children in the recommended placement. However, he found that the lack of a profile was not fatal because the child's proposed class was still being created at the time of the hearing. The hearing officer held that the board of education had met its burden of proving that it had offered an appropriate educational placement to petitioner's son.

        In this appeal, petitioner does not challenge her son's classification as autistic, or the CSE's recommendation that the child should receive the related services of speech/language therapy, occupational therapy, and physical therapy. She contends that the hearing officer wrongly characterized her dispute with the CSE's recommendation as merely a disagreement about teaching methodologies. Petitioner further contends that the record does not support the hearing officer's determination that the recommended SIE-III placement would have provided an appropriate educational program to her son. Specifically, she asserts that respondent's failure to provide her with a class profile deprived her of an opportunity to make an informed judgment about the proposed SIE-III placement, and it precluded respondent from demonstrating that her son would have been suitably grouped for instructional purposes with children who have similar needs and abilities.

        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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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 has not challenged her son's IEP, in terms of its description of the child's needs. I have nevertheless reviewed the IEP, and I find that it does accurately reflect the results of his evaluations. Petitioner has also not challenged her son's IEP annual goals and short-term instructional objectives. I have reviewed them because it is important to establish that the goals and objectives are appropriate, before determining what special educational services are required in order to afford the boy a reasonable chance of achieving his goals and objectives. Having reviewed the child's IEP annual goals and objectives, I find that they appear to be based upon the child's present levels of performance, and that his IEP annual goals describe what the child could reasonably be expected to achieve in a twelve-month period (see 34 CFR 300, Appendix C, Question 38).

        The pivotal issue in this appeal is whether the special education services recommended by the CSE, i.e., instruction in a SIE-III classroom, would have afforded petitioner's son a reasonable chance of achieving his IEP annual goals and objectives. The CSE representative at the hearing testified that the recommended class was for autistic children, and would have met the boy's linguistic needs because the SIE-III program was linguistically based. Respondent's school psychologist opined that the SIE-III program seemed to be appropriate for the child (Transcript, page 20). Respondent's site supervisor testified that respondent's SIE-III program would be appropriate for the child because it would concentrate upon four areas in which petitioner's son required assistance: social skills, communication skills, personal self-help skills, and functional academic skills. He further testified that the ABA methodology would be used by staff who had been trained in that technique to address the child's behavioral issues, but that other methodologies of behavioral modification would also be used in the SIE-III class.

        Ms. Cardieri, the child's teacher during the 1996-97 school year, testified that the boy had achieved mild success in her class, but she could not quantify his success. She asserted that the boy did not model the behavior of other children, and that he had to be taught to model the behavior of adults first. Ms. Cardieri testified that the child had participated in group activities, but that he required immediate supervision by an adult. She opined that he would only make progress in a program which provided him with intensive 1:1 ABA instruction. Ms. Helene Fineman, the child's private ABA instructor testified that she had succeeded in having the boy remain seated in a chair, and making eye contact with her when she spoke to him. She also testified that he could verbally imitate certain sounds, point to certain objects, and follow simple commands. Ms. Fineman opined that the SIE-III program would not be appropriate for the child because he engaged in self-stimulatory behavior and lacked certain "pre-requisite" skills. She opined that the program of the Blue Feather Early Learning Center would be appropriate for the child.

        Upon the record which is before me, I find that respondent presented some evidence of the appropriateness of its SIE-III program for children with autism. However, it did not, in my opinion, present sufficient evidence to show that the recommended program would have met this child's specific needs. I note that when respondent's site supervisor was asked at the hearing to describe the SIE-III program components and its purpose in dealing with autistic children, he testified that:

"It's going to be very hard to describe. I don't want to create something that hasn't begun but it would offer your child an opportunity to grow and learn in an environment where he would be given an opportunity to explore his community, his school" (Transcript, page 25).

        I recognize that the SIE-III class which had been recommended for this child was a new program for this site supervisor's school building. Nevertheless, respondent had the responsibility to demonstrate that the proposed placement would have afforded the child a reasonable chance of meeting his IEP goals and objectives. I am constrained to find that upon this record respondent failed to do so.

        Respondent was also required to demonstrate that it had complied with the regulatory requirement that petitioner's son would have been suitably grouped for instructional purposes with children having similar needs and abilities (8 NYCRR 200.6 [a][3]; 8 NYCRR 200.13 [a]). Typically a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile, i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having an employee testify about the needs of those children. At the hearing in this proceeding, the CSE representative was unable to provide information about the needs of the other children because the class was still being formed. Although I recognize that the hearing was held early in the summer, I am not persuaded that respondent was relieved of its obligation to show that the boy would have been similarly grouped (Application of a Child with a Handicapping Condition, Appeal No. 91-25). At the very least, respondent should have provided information about the selection criteria which were to be used for placing students in the recommended classroom.

        Although I have found that respondent did not meet its burden of proving that it had offered an appropriate educational program to the child, I must deny petitioner's request that I order respondent to place the child in the Brooklyn Blue Feather Early Learning Center because the record before me is equally scanty about the details of that facility's educational program. The principal of Blue Feather testified that there would be a new program for school-aged children in the fall of 1997, consisting of two classes for children with autism. Eight children would be in each classroom. The teacher in each class would be assisted by four assistant teachers. Three interns would also work in the classroom or most of the day. The principal further testified that the children would, for the most part, " … be engaged in private teaching sessions, addressing pre-academic and academic skills" (Transcript, page 39). She also testified that related services would be provided by the board of education after school hours. This child has a variety of needs, in addition to his pre-academic or academic needs. The record does not disclose how those needs would have been addressed at the Brooklyn Blue Feather Early Learning Center.




        IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that he found that the board of education had met its burden of proving that it had offered petitioner's child an appropriate educational placement for the 1997-98 school year.





Dated: Albany, New York __________________________
January 23, 1998 ROBERT G. BENTLEY