The State Education Department
State Review Officer

No. 01-084

 

 

 

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

Appearances:
Pamela Phillips Tucker, Esq., attorney for petitioners

Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel

 

DECISION

        Petitioners appeal from an impartial hearing officer’s decision which denied their request for reimbursement for the cost of their daughter’s tuition at the New England Center for Children (NECC) in Southborough, Massachusetts for a portion of the 1999-2000 school year and the entire 2000-01 school year. Respondent cross-appeals from that part of the hearing officer’s decision which awarded tuition reimbursement for a ten day period during the spring of the 1999-2000 school year. The appeal must be dismissed. The cross-appeal must be sustained.

        Petitioners’ daughter, the younger of twin girls, was born in March 1995. She was initially evaluated through the early intervention program in January 1997 because her parents perceived delays in the development of her communication skills and were concerned about her temper tantrums (Exhibits A, 10). Subsequently, the child began receiving early intervention services at home for speech and special education. In September 1997, the child was transitioned to a center based program at St. Charles Educational and Therapeutic Center (St. Charles) three days per week for three hours per day (Exhibit E).

        The child reportedly experienced extreme difficulty transitioning at St. Charles (Exhibit 9). She spent the majority of her day in a small corner surrounded by preferred items, and when approached she would retreat, moan or cry. While her abilities were difficult to assess due to excessive crying and a resistance to any activity she did not initiate, she was able to stack blocks and make eye contact for short periods of time. In October 1997, the child’s treatment team at St. Charles met at the parents’ request to discuss strategies to ease the transition difficulties. It was suggested that the child be considered for a five day per week program to insure a more consistent routine and to provide the security and familiarity necessary to begin to meet her educational and therapeutic needs.

        St. Charles conducted evaluations of the child in late fall 1997 when she was two years seven months old. On the Bayley Scales of Infant Development: Mental Scale, the child achieved a mental development index of less than 50 for a corresponding age equivalent of 16 months, indicative of significantly delayed performance (Exhibits B, 10) On the Vineland Adaptive Behavior Scales with the child’s mother serving as the informant, the child obtained an overall adaptive behavior composite of 63 which corresponds to an approximate age equivalent of 16 months, placing her in the low range of adaptive functioning. On the Preschool Language Scale-3 (PLS-3), the child achieved an age equivalent score of six months for receptive language and nine months for expressive language. On the Receptive Expressive Emergent Language Scale–2, the child achieved similar results, demonstrating receptive language skills at the five to six month level and expressive language skills scattered up to the eight month level.

        Respondent’s Committee on Preschool Special Education (CPSE) held a transition meeting in December 1997 to develop an individualized education program (IEP) for the child, as she would be turning three the following year and transitioning from the early intervention program to the jurisdiction of the CPSE effective January 1998 (Transcript pp. 33, 117). The CPSE classified the child as a preschool child with a disability (Exhibit 11). Consistent with the parents’ wishes, the CPSE adopted the recommendations made by the staff at St. Charles and the child began attending the St. Charles program five days per week, four hours per day through the end of the 1997-98 school year. In July 1998, the CPSE met to review the child’s IEP for the fall (Exhibit Y). It continued to recommend that the child attend the program at St. Charles. An IEP with a program initiation date of September 1999 provided for the related service of a social worker once per month for 60 minutes, reportedly for the purpose of parent training (Exhibits G, Z).

        In August, at the mother’s request, the CPSE chairperson observed the child in her home environment (Transcript pp. 39-40). The child’s mother inquired about the possibility of a diagnosis of pervasive developmental disorder (PDD) for her daughter. The CPSE chairperson suggested that the child be evaluated by a psychiatrist and indicated that if the child was diagnosed as having a PDD, she would benefit from a more intensive applied behavior analysis (ABA) program.

        By letter dated September 23, 1998, the child’s mother requested that parent training be discontinued, because she believed that her work with a private therapist of her choice was sufficient. However, she asked that a social worker check on her daughter at school. The CPSE met in October to remove parent training from the child’s IEP (Exhibit Z).

        St. Charles conducted an annual re-evaluation of the child in late 1998 and early 1999. The record shows that the child was able to follow a daily routine and anticipate regular classroom events, such as circle time and outdoor play time (Exhibit 15). As a result, she was able to transition to regularly occurring activities. Cognitively, the child was beginning to sort according to color. Her play reflected an understanding of the use of objects and she played appropriately with objects. While the child demonstrated severe delays in all areas of speech/language development, she was able to perform routine requests when presented with prompting or some hand over hand assistance. She could also identify pictures. A communication book consisting of pictures and symbols facilitated her overall language use. The child was continuing to work on drinking from a cup with assistance and showed improved ability using a fork and spoon appropriately. She was able to remove simple clothing and put on shoes and socks upon command. While the child was not yet indicating the need to toilet, efforts had begun to familiarize her with the bathroom to begin the toilet teaching process. With respect to sensory motor skills, the child enjoyed sensory activities with finger paint, rice and shaving cream, and would initiate continuation of vestibular and proprioceptive interactive games, such as the swing and therapy ball. Socially, her ability to make and maintain eye contact had increased. She played reciprocal games and played alongside other children with limited interaction.

        In a private evaluation conducted by the Department of Psychiatry and Behavioral Science’s Division of Developmental Disabilities at Stony Brook, State University of New York (Stony Brook) in March 1999, the child achieved an overall score of 12 on the Pre-Lingual Autism Diagnostic Observation Scale (PL-ADOS), meeting the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV) criteria for autistic disorder (Exhibit 8). The evaluator cautioned that the child’s significant cognitive, motor and overall general delays should be taken into account when interpreting the diagnosis. With respect to language and communication skills, the child was noted to have several words in her vocabulary, including "OK" and "more", although they were not always used in an appropriate fashion. The child’s reciprocal social interaction was characterized as limited but developing. She made sporadic eye contact, and her social overtures primarily revolved around her own interests. The child’s play behaviors were developing, but significantly delayed. She was able to play appropriately with cause and effect toys, she enjoyed tactile stimulation and displayed some beginning creative play. The child did display some stereotyped behaviors such as rocking back and forth, but no self-injurious behaviors were noted.

        In March 1999, the CPSE met to develop the child’s IEP for the 1999-2000 school year (Exhibit DD). At the meeting the Young Autism Program was discussed as a placement option, but the child’s mother did not wish to change her daughter’s placement (Transcript p. 41). Therefore, the CPSE recommended that the student continue to attend St. Charles. St. Charles reportedly had developed a modified ABA program in response to the parents’ wishes to have their daughter remain in her current placement (Transcript p. 41). The modified ABA program was described as a program that conducted discrete trial training, without recording exact data from all of the trials (Transcript p. 145). The program was four hours per day in a in a self-contained classroom with a student:staff ratio of 6:1+1. The CPSE also recommended a full time aide, to be shared with the child’s twin sister, who reportedly was less interested in her environment and the people in it than was this child (Exhibit 8). Related services of speech/language, occupational and music therapy were also recommended. Additionally, the CPSE recommended parent training for two hours each month. The child’s mother consented to the CPSE’s recommendation (Exhibit DD). The child continued at St. Charles, and began attending its modified ABA program in the fall of 1999.

        The child’s mother attended parent training once per month at St. Charles in the fall of 1999 (Exhibit 20). During the same time period, the parents arranged for services from a private psychologist to develop an ABA program that could be implemented in the home (Exhibit VV). However, the private psychologist indicated that it was impossible for the family to follow through with an ABA program at home because of the time required, given the level of involvement of the child and her sister. Thereafter, the CPSE chairperson arranged for the district’s autism consultant to help try to set up a home program (Transcript pp. 438-441). However, the home program was never established because the child’s mother indicated that she was not comfortable having people come to her home.

        In late 1999, fearing that his daughter would never be toilet trained at home, the father began searching for a residential placement (Transcript pp. 1000-01). He identified NECC as one of only two residential schools that accepted children as young as five years old (Transcript p. 1002). In January 2000, the child’s mother advised the CPSE chairperson that she was interested in securing a residential placement for her daughter. She indicated that the situation at home was extremely difficult, that episodes of aggression had increased and that she could no longer cope with it (Transcript p. 46).

        Additional evaluations were conducted by St. Charles in January and February 2000 (Exhibits R, 7). The child’s behavior in the classroom was observed by a special education teacher who noted that the child greeted her aide by saying "hi", and put away her jacket after a verbal prompt. She independently completed "bin" work, such as puzzles and stringing beads, and independently cleaned up and returned her bin to its proper location. The special education teacher noted that the child responded nicely to an established routine when she knew what was expected of her and what came next. The child was able to match objects and shapes with confidence, sort by color and shape, and identify objects by color and shape, both expressively and receptively. Her understanding of the concept of prepositions was improving. The special education teacher noted that during discrete trial training, the child exhibited a high level of frustration.

        The speech/language evaluator reported that the child achieved an age equivalent score of 1-11 on the auditory comprehension portion of the PLS-3 and 1-10 for expressive communication. The child used single words, gestures and some picture exchange communication system (PECS) symbols to communicate her wants and needs in the classroom. The speech/language evaluator noted an increase in the child’s use of single words as a mode for communication. Her expressive vocabulary was expanding, with emerging skills in the areas of labeling body parts and familiar people and vocalizing animal sounds. The child drank from an open cup at school, but her use of utensils was inconsistent. She was able remove clothing without fasteners and required minimal assistance to put on clothing. She also was able to zip, unzip and complete snaps. Having been introduced to toilet training during the year, the child transitioned to the bathroom where she followed a picture schedule to complete the steps for toileting with minimal gestural prompting. She undressed and dressed independently for toileting, and followed a task analysis protocol for hand washing. With respect to sensory-motor skills, the child continued to enjoy vestibular and proprioceptive input and readily participated in tactile based activities. Socially, the child demonstrated increased eye contact. She participated in directed parallel play with adult assistance, began initiating familiar play themes and tolerated turn taking.

        At a CPSE meeting on April 7, 2000, the parents advised the CPSE of their intention to place their daughter at NECC (Exhibit KK). They indicated that their daughter was no longer able to make progress at St. Charles, noting that her learning and activities of daily living skills had leveled off over the past several months. The CPSE determined that it required additional information before it could make a placement recommendation (Transcript p. 65). It recommended that updated psychological and psychiatric evaluations be conducted and agreed to reconvene upon completion of the evaluations (Exhibit FF).

        The psychological evaluation was conducted on April 14, 2000 by a school psychologist at St. Charles (Exhibit 3). Clinical observations revealed that the child was able to focus on a task for several minutes at a time, and that she used strategies while working on a multiple piece puzzle and was able to complete a 25 piece puzzle with minimal assistance. The child was able to spontaneously request an item using a complete sentence. She also used the word "please". The child was able to drink from an open cup with ease. Socially, she made appropriate eye contact and requested assistance appropriately.

        The child was re-evaluated by Stony Brook in April and May 2000 (Exhibit 6). With respect to the child’s functioning at home, the child’s mother advised the evaluators that her daughter had learned a number of signs and had made progress toileting. Her self-care skills had improved and she had learned to use a fork by herself. The tantruming and inflexibility described at the first assessment were no longer identified as problems. The evaluators reported that the child’s performance on the PL-ADOS showed increased evidence of autistic pathology since her last assessment. She demonstrated profoundly delayed and deviant language development. While the child had learned some basic commands and requests, she had a limited repertoire of single words and a few phrases. Her social reciprocity and play behaviors also were limited. During the evaluation, the child sustained the most attention for a small alphabet book, naming all the letters and many objects. Imaginative play was present, but limited. As part of the evaluation, the child was observed at St. Charles where she demonstrated a good understanding of the classroom routine and exhibited no difficulties with transitions. The evaluators reported that she easily and independently took materials for different activities and used them appropriately. She also was able to work on a 25 piece puzzle without assistance. The child initiated requests, but often needed help with specific wording. She appeared to be attending to what was being said, then tried to communicate her needs and wants. The evaluators recommended that the child required full day structured programming. They indicated that she would benefit from a well designed ABA curriculum, with additional support for social skill development, language and social communication, and further development of functional play skills. They also recommended consistent programming to reinforce what was learned at school in the home setting.

        Petitioners placed their child at NECC on May 9, 2000. On May 19, 2000, the CPSE reconvened to develop the child’s IEP for the remainder of the 1999-2000 school year and summer 2000 (Exhibit GG). Based upon the information in the updated psychological and psychiatric evaluations, it recommended continuation of the program at St. Charles, including the shared teacher aide and parent training, with the addition of special education itinerant teacher (SEIT) services four hours per day five days per week. The SEIT services were scheduled to be provided at St. Charles because the child’s mother did not want services delivered in the home. The child’s mother also rejected the use of the PECS system at home, as she believed it could not be used for toileting requests. The parent rejected the IEP, and left the meeting before its conclusion.

        On June 23, 2000, the parents requested an impartial hearing, claiming that the school district failed to provide and recommend a free appropriate public education (FAPE) to their daughter. They requested reimbursement for the costs incurred in the placement of their daughter at NECC (IHO Exhibit 1).

        Respondent’s Committee on Special Education (CSE) met on June 27, 2000 to recommend a program for the child for the 2000-01 school year commencing September 2000, as she had turned five years old and was transitioning to its jurisdiction (Exhibit HH). The CSE recommended that the child be classified as autistic and that she be placed in a 6:1+4 12-month self-contained ABA program at respondent’s Arrowhead School, with the related services of speech/language and occupational therapy, and parent training. The CSE also recommended that the child attend a school age child care program (SACC) after school at Arrowhead with an assistant trained in ABA "and/or appropriate home based program" to be reviewed as necessary. The IEP included annual goals addressing the child’s behavioral, cognitive, speech/language, self-help, motor and social deficits. The parent did not agree with the CSE’s recommendation, and the child remained at NECC.

        The hearing began on July 17, 2000 and was held on various dates, ultimately concluding on May 22, 2001. The hearing officer rendered his decision on August 9, 2001. In making his decision, the hearing officer divided the case into four separate time periods. The first time period he considered was from May 9, 2000, the date the child was placed at NECC, to May 19, 2000, the date a new IEP was developed. The hearing officer found that the March 1999 IEP providing the four-hour preschool program at St. Charles, which was in effect during that time period was not intensive enough to provide an educational benefit to the child. He awarded tuition reimbursement for that ten-day period. He then examined the program developed at the May 19, 2000 CPSE meeting for the remainder of the 1999-2000 school year, recommending St. Charles with the addition of four hours of SEIT services, and found that the additional hours and services that were recommended would enable the child to obtain an educational benefit. He made the same finding with respect to the summer 2000 program and the IEP developed for the child by the CSE for the 2000-01 school year. Having found those programs appropriate, he denied the parents’ request for reimbursement for the remainder of the 1999-2000 school year, summer 2000, and the 2000-01 school year.

        Petitioners appeal from the hearing officer’s decision denying their request for tuition reimbursement from May 20, 2000 through the remainder of the 1999-2000 school year and the 2000-01 school year. Respondent Board of Education cross-appeals from the hearing officer’s award of tuition reimbursement for the ten-day period in May 2000.

        I will address the cross-appeal first. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        Although respondent asserts that it has at all times provided an appropriate educational program for the child, its cross-appeal focuses upon an alleged inconsistency between the hearing officer’s finding that NECC was inappropriate for the child and his decision awarding tuition reimbursement for the ten-day period in May 1999. I therefore do not review his determination that respondent’s program during that period was appropriate. As a result, petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement for the period from May 9 to May 19, 2000.

        Upon finding that the Board of Education failed to meet its burden of demonstrating the appropriateness of the program recommended by its CPSE, the hearing officer must find that the parents demonstrated that NECC offered a program which met their daughter’s special education needs and that the equities favored their claim before awarding tuition reimbursement. It is unclear from the hearing officer’s decision whether he made such findings for the ten-day time period in May 2000 for which he awarded tuition reimbursement. However, upon my review of the record, I am unable to find that the parents have prevailed on the second criterion for an award of tuition reimbursement.

        A student’s parent bears the burden of proof with regard to the appropriateness of the services selected (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show that the private school offered an educational program which met the student’s special education needs (Burlington,471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20). Additionally, students with disabilities must be educated in the least restrictive environment (Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. § 1412[a][5]). While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]). However, petitioners must show that their daughter required a residential placement in order to receive an educational benefit from her educational program (Abramson v. Hershman, 701 F2d 223 [1st Cir. 1983]; Application of the Bd. of Educ., Appeal No. 98-19).

        I am not convinced that the child required a residential placement in order to receive an educational benefit from her educational program. The record shows that in late 1999, the child’s father began to explore the option of a residential program because he was concerned about his daughter’s progress, particularly with respect to toilet training at home. I note that at that time, none of the professionals who were working with the child recommended a residential placement for her. In fact, the record shows that the professionals who worked most closely with the child reported that she was not a behavior problem, and could be reasonably well managed in the classroom setting (Transcript p. 523). They also documented the progress that she had made at St. Charles, even with her toileting skills.

        In obtaining a residential placement for their daughter, petitioners have selected one of the most restrictive special education services that can be provided without having considered other placement options. The record shows that the parents steadfastly refused to consider other day programs designed specifically for autistic children, indicating a preference for St. Charles. Further, a home program was never established during the fall of 1999 because of the mother’s continued reluctance to have services provided in the home. I note that notwithstanding its success at school, the child’s mother rejected the use of the PECS symbols at home because she believed it could not be used for toileting requests. Other than the four hour per day special education preschool program at St. Charles, the parents have not accepted any additional special education services offered by the district, nor have they considered any other special education programs suggested by the district which would be less restrictive than the residential placement they favored. The record shows that the child made progress while attending the St. Charles program. There is nothing in the record to support petitioners’ contention that their daughter’s needs could not be met in a full day special education program without the restrictiveness of residential care.

        I have also considered the father’s testimony about the difficulties he has encountered with his daughter at home. However, a child’s behavior at home does not, per se, afford a basis for finding that a day program is inappropriate, absent evidence that the child requires a residential placement to benefit from instruction (Application of a Child with a Handicapping Condition, Appeal No. 91-28). I note that there is disagreement among the professionals who evaluated the child as to whether she required a residential placement. The staff at NECC and petitioners’ expert testified that the child required a residential program, while respondent’s staff and the independent evaluator from Stony Brook testified at the hearing that the child’s needs could be met in a day program. Based upon the information before me, I am unable to conclude that the child could not succeed in a setting less restrictive than a 365 day per year residential program in another state. Consequently, I find that the parents have not prevailed with respect to the second criterion for an award of tuition reimbursement. Having so decided, it is not necessary that I consider whether equitable considerations support the parents’ claim. I find that the parents are not entitled to tuition reimbursement for the period from May 9 through May 19, 2000, and accordingly, respondent’s cross-appeal must be sustained.

        I now turn to petitioners’ appeal from the hearing officer’s denial of their request for tuition reimbursement for the time period from May 20, 2000 through the remainder of the 1999-2000 school year, and the entire 2000-01 school year, including summer 2000. They contend that the programs developed by respondent’s CPSE and CSE for those time periods were inappropriate and would not provide an educational benefit. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 (Rowley, 458 U.S. at 178). 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]). A school district program need not match or surpass that of a private school preferred by a child’s parents (Application of a Child with a Handicapping Condition, Appeal No. 91-36). 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 Suspected of Having a Disability, Appeal No. 93-9).

        Initially, petitioners claim that the goals and objectives listed on the May 2000 IEP were not discussed at the CPSE meeting, and consequently the IEP should be found to be inappropriate. However, the record shows that the child’s mother actively participated in the May 2000 CPSE meeting. She acknowledged that she did not want the home component of the recommended program, she rejected the use of the PECS system at home, and she rejected the CPSE’s recommendation and the entire IEP. The record shows that she left the CPSE meeting because she did not agree with the process and gave permission for the meeting to continue in her absence for the purpose of completing the IEP (Exhibit GG). Petitioners also claim that despite the addition of SEIT services, no new goals were added to the May 2000 IEP. However, the record shows that IEP goals were reviewed, modified, and added at the meeting.

        Petitioners also raise several substantive challenges to the May and June 2000 IEPs’ goals and objectives. First, petitioners argue that the goals are vague and not based upon the needs of the child. I have reviewed the goals and objectives listed in the May and June 2000 IEPs and find that they address the child’s needs that were identified in the evaluations. The record shows that the child had deficits in self-help skills and the IEPs include goals for dressing, feeding and toileting goals. The child also had speech/language deficits and the IEPs include goals to address pre-speech skills and expressive and receptive language. Additionally, the IEPs include goals to address the child’s behavior, social and cognitive deficits. I note that NECC’s initial evaluation of the child’s functioning level is consistent with the most current evaluations which were relied upon by respondent’s CPSE and CSE to develop the May and June 2000 IEPs (Exhibit 29). A comparison of the IEP prepared by NECC in June 2000 and the IEPs developed by respondent’s CPSE and CSE shows that the goals and objectives target similar skill areas at the same functioning level. For example, both NECC’s IEP and respondent’s IEPs include goals for improving communication, socialization, motor, and activities of daily living skills. Pointing to objects and verbally requesting items are included among the objectives supporting the communication goals on the IEPs for each program. Increasing self-initiation in toileting also is an objective included on each IEP. While the language describing the goals and objectives may be different, the skill areas and functioning levels to be addressed are comparable.

        Petitioners assert that the two IEPs failed to address the child’s aggressive and self-injurious behavior that was identified when she entered NECC in May 2000. However, there is no evidence in the record to show that the child exhibited self-injurious behavior at St. Charles, and strategies were in place at St. Charles to address her frustration, which typically was exhibited during discrete trial training when greater demands were placed on her. I note that this child has a history of having difficulty with transitions and that the program specialist at NECC testified that when students first enter the school their behaviors are "relatively low" until they adjust to the environment (Transcript p. 1314). Petitioners also challenge the goals established on the June 2000 IEP for toileting, claiming that the child was fully trained at NECC within a matter of weeks. The record shows that at St. Charles the child was successfully using a picture schedule to complete the process with minimal gestural prompting.

        Based upon the information before me, I find that the goals and objectives developed by respondent’s CPSE and CSE are related to the child’s needs. Additionally, I find that the annual goals and objectives are sufficiently specific to provide direction to the child’s teachers concerning the CPSE’s and CSE’s expectations (Application of a Child with a Disability, Appeal No. 93-24). Given the nature and extent of the child’s disability, I also find that teacher observation is an appropriate method of evaluating whether the child has met her goals and objectives. I note that the child was unable to perform many of the tests when she was formally evaluated, and the evaluators relied primarily on observations in their assessments of her.

        To meet the established goals and objectives, the CPSE and the CSE followed the recommendations of the private evaluators from Stony Brook made in May 2000 which at the time were unrefuted. The CPSE recommended that the child be placed in a modified ABA preschool program with a shared aide for fours hours per day, with four hours of SEIT services for a total of eight hours of services per day. It also recommended related services of speech/language, music and occupational therapy. For kindergarten, in addition to the full day ABA program at Arrowhead and related services, the CSE recommended that the child attend the SACC program at Arrowhead from 2:15 PM to 6:00 PM with a teacher aide trained in ABA, for a total of approximately ten hours per day, nearly 50 hours per week of ABA programming. I am not persuaded by petitioners’ argument that it is inappropriate to rely upon a high school graduate to provide ABA instruction. The June 2000 IEP specifically provides that the assistant assigned to the child during the SACC program will be trained in ABA.

        Petitioners contend that their daughter failed to make progress at St. Charles during the 1999-2000 school year. I disagree. The record shows that when the child first began attending St. Charles in the fall of 1997, she spent the day in a corner surrounded by preferred objects from the classroom, was resistant to any activity she did not initiate herself and cried excessively. During the following school year, she was able to follow a daily routine and transition to regularly occurring activities. She performed routine requests with prompting and used a communication book which facilitated her overall language use. The staff at St. Charles started to familiarize the child with the bathroom to begin the toilet teaching process. By the middle of the 1999-2000 school year, the child was able to complete activities independently. She used PECS symbols to communicate her wants and needs in the classroom. She had been introduced to toilet training that year and was able to follow a picture schedule to complete the process with minimal gestural prompting. She undressed and dressed independently for toileting and followed a task analysis protocol for hand washing. I note that the 2000 Stony Brook evaluation reports that the mother indicated that her daughter had made progress in toileting that year.

        I agree with the hearing officer that the recommendation of the CPSE at the May 2000 meeting, the four hour preschool program at St. Charles with four hours per day of SEIT services, and the recommendation of the CSE at the June 2000 meeting, the full day kindergarten program at Arrowhead as well as an ABA trained assistant at the SACC after school program, would enable the child to receive an educational benefit. Accordingly, I find that respondent has demonstrated the appropriateness of the programs recommended by its CPSE and CSE. Having so found, it is not necessary that I address the second and third criteria for an award of tuition reimbursement.

        I have considered petitioners’ argument that the hearing officer erred in not considering the fact that the child had a twin sister who also has a diagnosis of autism. I am not persuaded by petitioners’ argument. While I am sympathetic to the difficulty presented in raising two children with autism, I cannot conclude on this record that the presence of an autistic sibling in the home supports placement in a residential program. There is no indication that this child was exhibiting the same difficulties at school as she was at home. The staff at St. Charles did not regard her as a behavior problem. At school, she was on a toileting schedule.

        I also have considered petitioners’ remaining claims which I find to be without merit.

 

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERD that the hearing officer’s decision awarding tuition reimbursement to the parents for the time period from May 9 to May 19, 2000 is hereby annulled.

 

 

 

Dated:

Albany, New York

__________________________

September 23, 2002

FRANK MUÑOZ