The State Education Department
State Review Officer

No. 02-105






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 City School District of the City of New York


Mayerson & Associates, attorneys for petitioners, Gary S. Mayerson, Esq., of counsel




        Petitioners appeal from an impartial hearing officer's decision denying their request for reimbursement for the supervisory services of a private applied behavioral analysis (ABA) behavioral consultant. The appeal must be dismissed.

        At the time of the hearing, petitioners' daughter was five years old, diagnosed and classified as autistic (Exhibits 2, 7, B), and receiving ABA services and supervisory/consultant services at petitioners' home. There is no dispute about the child's classification. Petitioners' daughter was first diagnosed with autism in October 1998 by a developmental pediatrician at Schneider Children's Hospital (see Exhibit A). She received supervisory services from the Alpine Learning Group outreach program (Alpine) from January 1999 through August 2001 (Exhibit K). The child transitioned out of Alpine because she turned five (5) years old (Transcript p. 884). Petitioners' daughter was referred to respondent's Committee on Preschool Special Education (CPSE) in March 1999 (Transcript p. 61). In June 1999, the CPSE recommended 31 hours of special education itinerant teacher (SEIT) services, 60 minutes of speech therapy twice a week, 60 minutes of occupational therapy twice a week, and 60 minutes of counseling five times a week (Transcript p. 62). In September 2000, the CPSE increased the speech services to be provided individually five times a week (Transcript p. 67).

        A March 2001 psychological/developmental evaluation reported that petitioners' daughter was initially presented with tasks from the Wechsler Primary and Preschool Intelligence Scale (WPPSI-R), she was unable to complete most of the tasks on this measure, she was then presented with the Stanford-Binet Intelligence Scale: Fourth Edition, and she obtained a highly estimated test composite in the deficient range (Exhibits 7, B). However, she was able to complete puzzles at her own age level (Exhibits 7, B). Petitioners' daughter has an estimated IQ in the 50's range, with her greatest weakness in language areas and relative strength in abstract visual reasoning areas (Transcript p. 76).

        The Young Adult Institute (YAI) provided the ABA services to the child at home. Petitioners also utilized Alpine for supervision and consultation of the ABA services (Exhibit 11). YAI's supervisor testified that petitioners' daughter had been receiving ABA services from the YAI school program since she had been there in January 2001 (Transcript p. 916). Alpine delivered ABA consultant services to petitioners' daughter until the end of August 2001 (Transcript p. 884; Exhibit 11). Although, I note that it appears from the record that there was basically a transition period from July 2001 to November 2001 when petitioners' daughter was not receiving adequate ABA services and/or supervisory services (see Transcript pp. 771-772). Petitioners' daughter did not receive any therapy in September 2001 and October 2001 because petitioners rejected respondent's recommended program (Transcript pp. 867-68). By November 2001, petitioners hired a private ABA behavioral consultant from the Lovaas Institute for Early Intervention (Lovaas) (Transcript p. 868).

        For the 2001-02 school year, the Committee on Special Education (CSE) recommended that petitioners' daughter be enrolled in special class, with a student to staff ratio of 6:1+1, in a specialized school for a twelve-month program (Exhibit 2). The CSE also recommended that she receive two 30-minute sessions of group speech-language therapy per week with a student to staff ratio of 2:1, three 30-minute sessions of individual speech-language therapy per week, two 30-minute sessions of individual occupational therapy per week, and have a 1:1 behavior management paraprofessional (Exhibit 2). The CSE chairperson acknowledged that no specific program with a specific methodology was offered to petitioners, and that the specific placement for the child was P.S. 177 which utilized several methods to teach autistic children, such as ABA, TEACCH (Treatment and Education of Autistic and related Communication handicapped CHildren), and the Miller program (Transcript pp. 71-72, 87, 174). The assistant principal at P.S. 177 testified that each child would have different methodologies employed, such as the use of ABA and TEACCH, but these methodologies would be delivered to the child at different times (Transcript pp. 183-184).

        Petitioners did not accept the CSE's recommended educational program. By letter dated August 31, 2001, but later stipulated to as of September 4, 2001 (Transcript pp. 27-31), petitioners requested an impartial hearing for the purposes of obtaining an award of reimbursement for the ABA services provided by the parents, including ABA consultant services. The hearing commenced on November 28, 2001, and concluded on May 7, 2002. As of the first day of the hearing, respondent stipulated to pay for YAI services as of September 4, 2001, for the pendency of the hearing, but did not stipulate to pay for the private ABA behavioral consultant services (see Transcript pp. 41-42). Petitioners also sought compensatory services to the extent that respondent failed to provide special education itinerant teacher (SEIT) services, counseling, occupational therapy, and speech-language therapy as required by the order of pendency.1   In a decision dated September 30, 2002, the hearing officer found that respondent failed to offer petitioners' daughter a free appropriate public education (FAPE), that the ABA services selected by the parent and provided by YAI were appropriate, and that equitable considerations favored reimbursement of the parents to the extent that they had expenditures for the ABA services that were provided to their child by YAI. The hearing officer ordered respondent to provide the additional services that were not yet provided under the order of pendency, and reimbursement for the ABA services provided for the 2001-02 school year, but denied that amount expended by the parents for the private supervision of the ABA services by a private behavioral consultant from Lovaas. The hearing officer found that the YAI supervisor was qualified to supervise the ABA services and did in fact provide supervision to the ABA services being provided to petitioners' daughter, and therefore denied reimbursement to the parents for their expenditure of the private behavioral consultant from Lovaas. Petitioners appeal the hearing officer's decision only to the extent that they were denied reimbursement for the private behavioral consultant from Lovaas. Petitioners contend on appeal that they should be reimbursed if the services they selected, which included the private behavioral consultant from Lovaas, were appropriate.

        A board of education may be required to pay for educational services obtained for a child by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). The parents' failure to select services 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]). The board of education bears the burden of demonstrating the appropriateness of the services recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2nd Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-018).

        To meet its burden of showing that it has offered to a provide a FAPE to a child, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the individualized education program (IEP) that its CSE developed for the child through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206-07 [1982]).

        Since the hearing officer's finding that respondent's recommended services were not appropriate is not appealed, I shall begin my analysis with whether the services selected by the parents were appropriate. There is nothing in the record that suggests that the YAI supervisor is not qualified to deliver supervisory services. On the contrary, the YAI supervisor is certified in school administration supervision (Transcript p. 916), and the private behavioral consultant acknowledges the YAI supervisor's credentials and qualifications as an ABA supervisor (Transcript pp. 736-37).

        The private behavioral consultant testified that there are two roles for the supervisor to the ABA services, train the ABA instructors that are directly responsible for the delivery of the ABA services to the child and provide the educational curriculum for the child (Transcript pp. 675-76). The YAI supervisor testified that she is responsible for training the staff hired through YAI to deliver the ABA services to petitioners' daughter (Transcript p. 917). All of the child's staff members are required to attend staff orientations and in-service trainings offered through YAI (Transcript p. 917). Also, upon finding that there was a private behavioral consultant involved with petitioners' daughter, the YAI supervisor contacted the consultant by telephone and met with her at petitioners' home to ensure the entire program was in alignment with the child's IEP goals (Transcript pp. 918, 928). The YAI supervisor testified that she respected the boundaries of a private consultant and would work collaboratively with that person because the parents invited them into their home (Transcript pp. 930-31). As a normal part of ABA services, the YAI supervisor made suggestions and recommendations to the private consultant as to the graphing of data through graphing procedures (Transcript p. 918). I find that the YAI supervisor was providing appropriate supervisory services.

        Having concluded that the YAI supervisor provided appropriate supervisory services to the YAI staff instructors delivering the ABA methodology to petitioners' daughter, I will now consider whether equitable considerations support petitioners' reimbursement claim for the private ABA consultant services from Lovaas. I find that equitable considerations do not favor petitioners' claim for reimbursement for the private ABA consultant services from Lovaas because YAI was already providing appropriate ABA supervisory services that were reasonably calculated to enable petitioners' daughter to receive educational benefit.





Albany, New York




October 23, 2003



1 The parties stipulated on November 28, 2001 to an order on pendency where respondent was required to provide and/or fund 31 hours of [SEIT] services, provided by Young Adult Institute or other SEIT provider, counseling five sixty-minute sessions individually, occupational therapy two sixty-minute sessions individually and speech and language therapy five sixty-minute sessions individually during the pendency of this proceeding as of September 4, 2001 (Dec. p. 4, see Transcript pp. 41-42).