The State Education Department
State Review Officer

No. 00-029




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 Monroe-Woodbury Central School District

Westchester/Putnam Legal Services, attorney for petitioners, Eileen Campbell O'Brien, Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondent, Edward Sarzynski, Esq., of counsel



        Petitioners appeal from an impartial hearing officer’s decision upholding the recommendation by respondent’s Committee on Special Education (CSE) that their son attend a full-time kindergarten with related services during the 1999-2000 school year. Petitioners objected to the proposed program on the ground that it did not provide enough hours of Applied Behavioral Analysis (ABA) for their son, and sought a half-day kindergarten program and 25 hours of ABA per week to be provided at their home. Petitioners further appeal from the hearing officer’s decision not to order a twelve-month program for their child. The appeal must be dismissed.

        Petitioners’ son became six-years old during the course of the hearing. There is no dispute about his classification as autistic. The child received services from the Early Intervention Program until he was old enough to receive services through the Committee on Preschool Special Education (CPSE) (Exhibit L). For the 1998-99 school year, the CPSE recommended that the child be classified a preschool child with a disability, and placed in a 12-month, half-day preschool class with a staff: student ratio of 12:1+2. The child was placed at the Warwick School (Warwick). His related services included occupational therapy, physical therapy and speech/language therapy. In addition, the CPSE recommended consultation training services, parent education and special education itinerant services. The special education itinerant services consisted of 12.5 hours of ABA services per week administered at home. The CPSE indicated that 12 hours of such services each month would be used to allow all assigned staff to review and adjust the student's program (Exhibit J-4). In December 1998, the CPSE recommended that five additional hours of ABA services per week be provided to the child to address concerns about his language skills (Exhibits SD-3, J-3).

        In a behavioral evaluation conducted in March 1999, the child was found to be moderately autistic, based upon an observation. His adaptive behavior was assessed through an interview with the parents. He achieved a standard score of 65 and age equivalent of 2-8 in communication skills. In daily living skills, the child achieved a standard score of 58 and an age equivalent of 2-7. The child achieved a standard score of 59 and an age equivalent of 1-9 in socialization. He earned a standard score of 68 and an age equivalent of 3-7 for motor skills. The evaluator recommended a full-day ABA program with minimal auditory and visual distractions for the boy (Exhibits D, 8).

        The child's teacher from Warwick provided a progress report in April 1999. She indicated that the child had begun to use more expressive language, and had demonstrated gains in understanding vocabulary as well. She also reported, however, that the child continued to display inconsistent responses to questions that he did not learn in a discrete trial format. She recommended that behavioral methodologies be incorporated in an intensive, highly structured educational setting to provide continuity to his learning style (Exhibit SD-4).

        The child's year-end speech/language evaluation was conducted on April 16, 1999. On the Preschool Language Scale - 3 (PLS-3), the child achieved a standard score of 50 and percentile of 0 in both auditory comprehension and expressive communication. On the Peabody Picture Vocabulary Test III (PPVT), the child achieved a standard score equivalent of 48 and a percentile of <1. On the Expressive One Word Picture Vocabulary Test - Revised (EOWPVT-R), the child achieved a language standard score of 62 and percentile of 2. The evaluator recommended that the child receive speech therapy in two individual and two small group sessions per week. She also recommended daily enrollment in a special education program with a concentrated speech/language curriculum (Exhibit SD-4).

        The child's physical therapist completed a year-end report in March 1999. On the Peabody Gross Motor Scale, the child displayed a delay of thirteen months. The therapist noted that the child required many verbal cues and demonstrations and cautioned that the child's score might be inflated. She recommended continuation of physical therapy through the summer. For kindergarten, the teacher recommended the child receive adaptive physical education in addition to regular physical education, and a physical therapy consultation to determine the adequacy of that level of service in the school environment (Exhibit SD-4).

        In her year-end educational report, the child’s teacher recommended a highly structured preschool special education setting for the child with related services for the summer in order to avoid regression. For kindergarten, she recommended a highly structured class with ABA incorporated into a portion of the day (Exhibit SD-4). The child's occupational therapist reported that the child had displayed progress in his visual motor skills during the 1998-99 school year. On the Beery Developmental Test of Visual Motor Integration, the child exhibited a 15-month delay in February 1998. His score fell into the 8th percentile. In January 1999, the child did not display any delay, and his score fell into the 55th percentile. The child did not show progress in developing fine motor skills. On the Peabody Developmental Fine Motor Scale (PDFMS), the child had exhibited a 22-month delay in February 1998. In February 1999, the child displayed a thirteen-month delay. His therapist recommended that occupational therapy be continued twice per week, once in a group and once individually (Exhibit SD-4).

        In May 1999, the evaluator who performed the behavioral assessment wrote a letter reiterating his opinion that the child needed a full-day ABA program. He further opined that a kindergarten program with pullout ABA services would be inappropriate. However, he also recommended that the child interact with mainstream children for social skills training (Exhibits SD-9, E).

        The school psychologist conducted a psychological evaluation in May 1999. Testing yielded limited results due to the child's language deficits. The testing that was performed indicated that the child was performing significantly below average. The psychologist recommended a highly structured, language-enriched special education classroom for kindergarten, with a low student: teacher ratio to allow for individualized and small group instruction (Exhibit L).

        The CPSE met in June 1999 to prepare the child's summer program. It recommended that the child be classified a preschool child with a disability and placed in a half-day preschool program with a student: staff ratio of 12:1+2. In addition, special education itinerant services were recommended for 17.5 hours per week. The CPSE also recommended the related services of occupational therapy, physical therapy and speech/language therapy (Exhibit J-1).

        Beginning with the 1999-2000 school year, petitioners’ son came under the jurisdiction of respondent’s Committee on Special Education. On July 6, 1999, the CSE recommended that the child be classified autistic and placed in a full-time special class with a student: staff ratio of 12:1+1. The related services recommended by the CSE included occupational therapy, parent education, physical therapy consult and speech/language therapy. The CSE also recommended ten hours of individual resource room services per week, and adaptive physical education for the child. The resource room services were to be provided for two hours per day with an emphasis on behavioral analysis and behavioral instruction (Exhibit J-2). Petitioners, who had requested a half-day kindergarten class with 20 hours of home based instruction, disagreed with the CSE recommendations. However, the CSE concluded that the child's educational needs could be met within the school based program it had recommended.

        The parents requested an impartial hearing subsequent to the July CSE meeting (Exhibit H). The hearing was commenced on September 7, and continued on September 8. During the initial two days of hearing, evidence was presented concerning the question of the child’s pendency placement. On September 12, the hearing officer ordered the school district to provide 17.5 hours of ABA services to the child at home in the same manner and time frames as provided by Warwick throughout the pendency of the matter. In addition, the hearing officer ordered that the child attend kindergarten for at least half a day and receive all recommended related services included on the July 6, 1999 IEP. Resource room services, academic readiness and language development were to be provided at the Sapphire Elementary School. On September 28, 1999, the hearing officer issued another decision ordering that at least 80% of the ABA services be provided in time blocks of 2.5 hours or less. Forty percent of those services could be increased by half an hour. Twenty percent of the child’s ABA services could be provided in time blocks of 3 hours or fewer and 20% of those services could be increased by half an hour. With parental approval, the block time could be increased (Decision of Hearing Officer, dated 03-22-00). On October 7, 1999, the hearing officer issued a verbal order pertaining to scheduling (Transcript, vol. 4, pp. 552-554). The Board of Education appealed from all three of the hearing officer decisions. Its appeal was sustained with respect to the scheduling of services. However, the appeal was not sustained with respect to changing the location of the child’s ABA services from home to the Sapphire Elementary School during the pendency of this proceeding (Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 99-90).

        In a November 5, 1999 progress report, the child’s kindergarten teacher reported that the child required structure and needed constant redirection. When prompting and redirection were not provided, the child would wander and sing to himself (Exhibit J). On November 8, 1999, the CSE convened to review the child’s progress in his program. I note that in a description of that meeting on the child’s IEP, the CSE indicated that the teacher had reported that the student was making good progress. She also had reported that the child was following routines, connecting with classmates in small and large group settings and progressing in academic skill development. The occupational therapist reported that the student was responding well to sensory activities. The resource room teacher reported that the child was progressing in recognition of letters, numbers and sight words. She noted that the child’s chief weakness was in spontaneous verbalizations. The speech/language therapist reported that the student had learned routines and transitions and had made progress in social communication skills. She noted that speech/language therapy, resource room services and classroom services were coordinated in an effort to increase the child’s generalization of skills. The resource room teacher opined that the school was a less distracting location than the home to provide ABA services. The CSE determined to continue the child’s school based program (Exhibit F).

        On January 14, 2000, petitioners requested an impartial hearing to challenge the CSE’s recommendation. They asked that their new hearing request be consolidated with their prior request (Exhibit H). The hearing officer granted the request and four additional days of hearing were conducted between September 27, 1999 and February 23, 2000.

        In his decision dated March 22, 2000, the hearing officer determined that the IEPs developed by the CSE at its meetings on July 6 and November 8, 1999 would have provided the child with a free appropriate public education in the least restrictive environment during the 1999-2000 school year. In doing so, he found that there was no basis in the record for continuing the child’s instruction at home, as petitioners had requested. He further found that the program offering 10 hours of individual ABA services per week with 20 hours of generalization per week was appropriate for the child. With respect to the fact that both IEPs were for a program to be provided on a ten-month basis, the hearing officer agreed with the Board of Education’s contention that the issue of an extended school year (ESY) was premature and should be considered first by the CSE at its annual review of the child. He noted that the Board of Education was not opposed to providing an ESY to the child.

        Petitioners contend that the CSE did not develop an appropriate IEP for the child because the child’s annual goals and short-term objectives were not related to his present levels of performance and special education needs, and were too vague, and because the IEP did not provide for adequate special education services to address the child’s needs. They contend that the hearing officer ignored evidence showing that their child needed individual ABA instruction at home in order to learn, and would in fact regress with only ten hours of ABA services per week. Petitioners also challenge the hearing officer’s finding that the issue of ESY services did not need to be addressed until the CSE’s next annual review of the child.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        Petitioners do not object to the recommended kindergarten class as a part-time placement, and they do not object to the related services that the CSE recommended for their son. Their primary objection to the July 6 and November 8 IEPs is that they provide for only ten hours per week of individual ABA instruction. They assert that with only ten hours of individual ABA instruction per week, their son would not only fail to make academic progress, but he would regress. Petitioners also assert that in order for their son to make progress, he must receive ABA instruction at home. With respect to the amount of ABA instruction, petitioners contend that respondent failed to offer evidence to establish that the CSE's recommendation was based upon their child’s needs. They suggest that the recommendation was in fact premised upon the length of the school day.

        I find that the IEP did address the child's individual needs. The child's teacher from Warwick, who was most familiar with the student's academic needs, recommended a highly structured kindergarten class with ABA instruction during the day (Exhibit 4). The evidence shows that generalization of appropriate social behavior was one of the child's needs. In order to generalize appropriate social behavior, the child needed to interact with his peers. An expert on autism who testified on behalf of the school district opined that the educational program recommended by the CSE provided an excellent variety and good intensity of services. The expert acknowledged that the child required individual instruction, but opined that the child needed more involvement in group situations (Transcript, vol. 4, p. 429).

        There is no evidence in the record that the CSE's program will cause the child to regress. Petitioners submitted articles from various experts on autism. Although the articles discuss the amount of time spent working with autistic children, the articles also emphasize generalization of skills (Exhibits M-P). Under the program recommended by the CSE, the child would have the opportunity to generalize skills in the classroom. The parents presented the expert who had performed the behavioral assessment and who had recommended a full day program with ABA services (Exhibits SD-9, E). Although the expert continued to recommend a full day program, he acknowledged that experts have different opinions regarding the amount of ABA services an autistic child needs in order to progress (Transcript p. 633). The evaluator also recognized that the child might benefit from an in-school program because he would get used to leaving the house, he would have the opportunity to integrate with other children and a reliable staff would be working with the child (Transcript p. 663). I find that petitioners have not shown that their child will regress with the program recommended by the CSE. On the contrary, I find that the CSE recommended an appropriate program designed to confer educational benefit.

        Petitioners argue that the IEP goals and objectives were overly broad and unrealistic. However, I find that they were generally consistent with the child’s level of functioning. At the hearing, petitioners’ expert witness, Dr. Ira Cohen, testified that most of the child’s IEP goals and objectives were appropriate, but that certain goals and objectives were too broad or too sophisticated to be attainable by this child (Transcript 5, pp. 702-703). While I agree that the goal and objectives relating to the student developing an awareness of self appear to be overly ambitious and the math objectives should have been more specific, I do not find the entire IEP to be deficient. Indeed, the IEP contained goals and objectives that appropriately addressed his individual needs and afforded him the opportunity for generalization.

        I find that the child was appropriately grouped for instructional purposes (see 8 NYCRR 200.6[g][2]). He was functioning at the same level as some of his classmates and there were other classmates who could serve as peer models for the student (Exhibit SD-2). I find that the school setting was less restrictive than the home setting because the child would experience exposure to peers that he would not experience at home. I find that the IEP contained goals and objectives that appropriately addressed the child's individual needs and afforded the child the opportunity for generalization.

        The child’s resource room teacher had approximately four and a half years of experience in discrete trial training, which is a method of ABA (Transcript, vol. 1, p. 130). The resource room teacher, the kindergarten teacher and the speech/language therapist would meet once a week to discuss themes being emphasized. The kindergarten teacher would then attempt to generalize the themes in her classroom. She usually accomplished this in groups of two or three children (Transcript pp. 749-750, 763). The teacher reported that one of the child's greatest deficits was in socialization. She opined that a full-day program would allow the student greater opportunities for socialization (Transcript p. 762).

        The CSE did not recommend 12-month programming for the child. Twelve month programming is warranted when a CSE determines that a student needs a special service or structured learning environment in a 12-month program to prevent substantial regression (8 NYCRR 200.6[j]). Substantial regression is "…a student’s inability to maintain developmental levels due to a loss of skills or knowledge over the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR 200.1[nn]). Petitioners' expert witness testified that the child should be in a twelve-month program to avoid the likelihood of substantial regression (Transcript p. 655). The school district offered no evidence to dispute the expert's contention the child would regress without a 12-month program. Rather, the CSE indicated that it would consider a summer program at the annual review. I find that the CSE may properly consider the necessity for an extended school year at the annual review.






Dated: Albany, New York __________________________
July 5, 2001 JOSEPH P. FREY