The State Education Department
State Review Officer
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 East Ramapo Central School District
Davis and Davis, Esqs., attorneys for petitioners, Jordan S. Davis, Esq., of counsel
Greenberg, Wanderman and Fromson, Esqs., attorneys for respondent, Carl L. Wanderman, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision denying their request for reimbursement for the cost of their daughter's home school program for the 2002-03 school year. The appeal must be dismissed.
At the time of the hearing, petitioners' daughter was six years old, classified by respondent's Committee on Special Education (CSE) as autistic, and through her parents' efforts was being schooled at home. Petitioners do not challenge the CSE's classification of their child as learning disabled.
Early in the student's pre-school education, her parents consulted with experts who recommended that the Princeton method of applied behavioral analysis (ABA) be used. With respondent's agreement, she attended the Gen Ezra pre-school operated by the Hebrew Association for Special Children (HASC) and received additional after-school instruction using the Princeton method through her parents' efforts. When the student left pre-school, respondent and petitioners agreed to an individualized education program (IEP) under which she attended the Devereaux-Millwood School (Devereaux) for the 2001-02 school year. The program used an ABA approach but not the Princeton method of ABA that the parents preferred. The CSE met on March 5, 2002 and adopted an IEP for the 2002-03 school year under which the student was to continue at Devereaux. The student's mother testified that she had been dissatisfied with the way her daughter's IEP was implemented, but respondent points out she had never notified the school district or the Devereaux staff. The IEP also called for the student to attend Devereaux during the summer of 2002. According to respondent, petitioners did not voice objections about the program to respondent. At the subsequent hearing the child's mother testified that during all the time in question her daughter made minimal progress and in some ways regressed at Devereaux. After meeting in March, the CSE determined that the student had been making progress and should continue at Devereaux. Respondent indicates it understood that petitioners were satisfied with that placement.
In May, petitioners and other parents wrote to respondent about establishing a new program for their children. Respondent indicates it construed the request as relating to a school district-operated program rather than a private school or home schooling program to be operated by the parents. Shortly thereafter, petitioners notified respondent that they would not continue their daughter at Devereaux.
Respondent promptly convened a meeting of the CSE on July 10, 2002. In an attempt to satisfy petitioners, the CSE discussed with and ultimately proposed to petitioners that the student attend a Board of Cooperative Educational Services (BOCES) program at the Link Elementary School. Petitioners requested a hearing to challenge the July 10, 2002 IEP. The hearing was conducted in six sessions from October to December 2002. Petitioners contended that the July 10, 2002 CSE meeting was conducted improperly: the CSE gathered insufficient information and proposed an IEP which did not fully set out the students needs, her short or long-term goals; nor did it state how or whether the suggested program would benefit her.
In a decision dated January 27, 2003, the hearing officer found that the district's CSE recommendations of March 5, 2002 and July 10, 2002 were adequate to provide the student with a free and appropriate education; that the parents had not cooperated with the CSE in seeking placement for their daughter; that there was no support in the record for the parents' unilateral decision to school their daughter at home; and, that the request for tuition reimbursement was without cause. Accordingly, he denied petitioners' request for reimbursement for the costs of educating their daughter at home. The hearing officer found that both the district's July 10, 2002 and its earlier March 5, 2002 IEP offered an appropriate program reasonably calculated to meet the student's needs in a least restrictive environment.
The hearing officer further found that the student does not need an ABA program using the Princeton method as opposed to the Comprehensive Application of Behavioral Analysis to Schooling (CABAS) method. He found that this student did not require so restrictive a placement as home instruction. The hearing officer determined that each of the student's IEPs appropriately identified the student's needs and that the program recommended by the CSE would meet the student's individual educational needs. He also determined that the student had made progress in the Devereaux class the CSE proposed to continue, and that the staff to student ratio would meet the student's needs.
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 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.55[b]; 8 NYCRR 200.6[a]).
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).
I have reviewed the IEPs developed for this student (Exhibits 22 and 24), and I find, as did the hearing officer, that they accurately reflect the needs of the student as shown in her evaluations, provide for the use of appropriate special education services, and establish appropriate goals. The March IEP identified the student's present level of performance, set goals for the student to achieve and set out the interim steps for determining whether the student is progressing towards those goals. In preparing the portion of the IEP describing the student's present levels of performance, the CSE relied upon the results of updated or timely information, including an assistive technology evaluation completed just days before the March CSE meeting, which was quite extensive and included observation of the student. Devereaux sent reports both during the year and after school closed, which reported on the student's progress. Having reviewed these reports as well as the IEP, I find that the latter accurately reflected the student's needs and current levels of performance, and that she was making steady, upward movement.
The BOCES program recommended by the CSE in Link Elementary School would provide a small structured environment. It has an 8:2:1 child to adult ratio but, as the BOCES administrator testified, there were also other adults in the classroom. It also had parent counseling as an integral part of the program. Petitioners' witnesses indicated that the student could learn in the program like the BOCES program at Link Elementary School (Transcript p. 975). I agree with the hearing officer's conclusion that home school instruction is an overly restrictive program for this student. Not only is petitioners' home instruction program very restrictive, but also it leaves their daughter's socialization needs unmet. Petitioners' intent to use a restrictive pre-school program part of the day to meet this need never was realized.
Petitioners also complain about the way the hearing officer conducted the hearing. They contend the hearing officer was "sometimes openly hostile, other times briefly unconscious" and "appeared to nod off," "interposed his bias" and acted in a "biased and unprofessional manner." Petitioners cite no part of the transcript to support their charge that the hearing officer was inattentive. I have carefully reviewed the record and find no indication that petitioners' counsel ever voiced this observation, and I note respondent's answer denies it. On the contrary, the record reveals that the hearing officer played an attentive and active role throughout the conduct of the hearing. Although he made a number of rulings against petitioners and posed questions to witnesses, it is not apparent from the record that any of his actions were incorrect or an abuse of discretion. They seem, instead, to have been meant to expedite the conduct of the hearing. Certainly, petitioners were not prevented from submitting testimony or other evidence; their lawyer was allowed to fully develop their case and the hearing officer several times indicated he wanted to give their attorney wide latitude in doing so.
I find that respondent has met its burden of demonstrating the appropriateness of the educational program that its CSE recommended.
THE APPEAL IS DISMISSED.
Albany, New York
December 4, 2003
ROBERT G. BENTLEY