The State Education Department
State Review Officer
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 Rush-Henrietta Central School District
WNY Advocacy for the Developmentally Disabled, Inc., attorneys for petitioner, Roger G. Nellist, Esq., of counsel
DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer upholding the recommendation of respondent's Committee on Special Education (CSE) that his son, who is diagnosed with autism, be placed for the 2002-03 school year at the Mary Cariola Children's Center (Mary Cariola), a private school for children with disabilities. The appeal must be dismissed.
Petitioner's son has a nonverbal IQ score of 41, and scores on the Vineland Adaptive Behavior Scale (Vineland) that fall between a one and three year chronological level (District Exhibit 20). He was 13 years old and had just completed the sixth grade in a self-contained special education class at respondent's middle school when the hearing began on June 19, 2003. His class had a total of four students, but petitioner's son spent most of the school day in a separate room constructed within the classroom, with a minimum of 1:1 staffing at all times, to manage his aggressive and compulsive behaviors. When he left the classroom to have lunch in the cafeteria or participate in art or physical education, he was accompanied by at least one adult and usually three (Transcript pp. 98, 101-03). His classification as a student with autism is not in dispute.
The student first received a diagnosis of autism in August 1995, when he was five years old (Parent Exhibit 10, District Exhibit 24). During the 1997-98 school year, when the student was in first grade, he was instructed for most of the school day in a self-contained classroom of five students and seven adults (Parent Exhibit 1). He reportedly struck out aggressively at other children in the self-contained class (District Exhibit 21). In a classroom observation conducted that school year, the school psychologist noted that his only interaction with his peers was to hit another boy in the back. Indeed, the student often worked "in a partitioned, protected work area that was insulated from most of the extraneous stimulation" within the classroom (Parent Exhibit 1).
At the beginning of the student's second grade year, a physician from the Genesee Hospital Developmental Unit conducted a classroom observation of the student in a mainstreamed art class. He observed that the student "showed no awareness of any other children within the room" (District Exhibit 21). The physician noted that the student spent the time engaged in self-stimulatory behavior and perseverating on an object in front of him. The physician expressed his concern that the student was not making "any significant progress in functional communication or social interactions." He concluded that the student "cannot benefit from an inclusion program, and "will gain little from mainstream involvement." He recommended an intensive behavioral modification approach such as applied behavioral analysis (ABA) (District Exhibit 21). In the middle of the student's second grade year, his parents requested that the CSE place him in a regular education classroom with a 1:1 aide, and ABA therapy in a small classroom (Parent Exhibit 5). In the spring of 1999, the district agreed to hire and train a consultant teacher, an ABA consultant and an ABA aide (Parent Exhibits 8, 9).
In July 1999 a multidisciplinary evaluation conducted by Strong Memorial Children's Hospital Center for Developmental Disabilities indicated that the student functioned at the level of a two or three year old in all domains (District Exhibit 20). He had a nonverbal IQ score on the Leiter International Performance Scale- Revised of 41, which was the 1st percentile. The report noted that he had been given four different medications for attention deficit hyperactivity disorder (ADHD), but none had improved his attention. An antidepressant had increased his motor activity, however. The occupational therapist noted that the student wandered around the room, opened cupboards, flapped his fingers, bit his hand, licked and smelled his hand and smelled other test items. When the child began turning the pages of a magazine, his father suggested that the child be allowed to finish turning all the pages, or else the child would have a temper tantrum (District Exhibit 20). The speech/language evaluator noted that the student's speech was 70 percent intelligible. The evaluator noted that it was difficult for the boy's father to simply watch, and that he often gave instructions in his native language or English. The student did not appear to the evaluator to have friends or play with anyone other than his sister (District Exhibit 20). In the educational evaluation, his scores on the Woodcock-Johnson- Revised (WJ-R) were below the borderline range in broad knowledge and applied problems. The evaluator concluded that the student fell within the moderate range of mental retardation, and continued to meet the criteria for autism. The team recommended an individualized program, with elements of a behavioral modification approach called TEACCH that would compliment ABA, a behavior management team, and instructors trained and experience in working with children who have autism.
In third grade, during the 1999-2000 school year, the student's individualized education program (IEP) provided a consultant teacher and an ABA consultant, speech language therapy (SLT) and occupational therapy (OT), as well as mainstreaming in science, social studies, music and art. Apparently, he continued to receive some of his instruction in a partitioned area of a special education classroom, with his 1:1 aide. After his parents filed a complaint against the district for its failure to fully implement the IEP (District Exhibit 15), the IEP was implemented in January 2000 (District Exhibit 18). There were still some disagreements between the parties throughout the year; however, the district did provide training for the parents in the use of ABA at home (Transcript p. 385; District Exhibits 17, 19).
Minutes of a CSE meeting held on May 24, 2000, at the end of the student's third grade year, indicate that the student had participated in general education classes that year by engaging in "parallel" activities (Parent Exhibit 20). His general education teacher commented that the third grade curriculum was "far beyond his ability, even when adapted," that he was echolalic, non-communicative, and unable to engage appropriately in peer interactions. He was functioning academically at a pre-kindergarten level. Although his behavior was reported to have improved somewhat due to the ABA program's discrete trials, he continued to require "intense adult management" and restraint techniques were sometimes necessary (Parent Exhibit 20). His special education teacher commented that he was "very sensorally involved and defensive and does not cope with the environment" (Parent Exhibit 20). His physical education teacher commented that he did not play with his peers, but she modified games and equipment so that he could engage in parallel play. She added that there were safety concerns, because he was highly unpredictable. Two other CSE members opined that the student had been more aggressive since the ABA trials were instituted, and that staff was in a crisis situation where they had to react immediately to ensure everyone's safety. The CSE recommended that he be placed at BOCES or Mary Cariola for fourth grade during the 2000-01 school year, but the student's father objected again and indicated that he would request a hearing.
The parent's request for an impartial hearing was settled in October 2000 when the parties agreed that the student would continue to be instructed, in the enclosed area constructed for him within the self-contained classroom, with the services of a full-time consultant teacher, a 1:1 aide, a backup aide, SLT, OT and an ABA consultant. In addition, it was agreed that staff would attempt to introduce him into some mainstream settings, when possible, accompanied by his consultant teacher or aide (Parent Exhibit 29). His fourth grade teacher reported at the end of the school year that the student's behavior problems had continued. When his demands were not immediately met, he responded by hitting or kicking, and his aggression prevented him from having access to other students (District Exhibits 12, 12A). Students who were in the classroom with him the year before were reportedly hesitant to be near him (District Exhibit 12). His teacher commented that his OT skills, while somewhat improved, were still at a kindergarten level and he was "not at a level to interact or complete activities asked of a typical fourth grade student." His play skills were at a one-year to three-year old level. By the end of fourth grade, he was able to differentiate between boys and girls if the gender difference was obvious. He could not respond to "where" questions. He was taken into a group setting 10 minutes per day to work on greeting skills, but when placed in a group activity, he had to be distanced (District Exhibit 12). A classroom observation, when he was in speech class, indicated that instructing him was a two-person process due to his distractibility and obsessive-compulsive behaviors (Parent Exhibit 33). His teacher commented that his behaviors and skills were not at or even near an age appropriate level, and recommended that he be placed in a smaller classroom with similar peers.
A May 2001 behavior support plan revealed that his target behaviors included pacing, rubbing his head, checking trash, smelling, visually checking objects, spinning, hand flapping, squeezing his head, rocking, hitting, kicking, head butting, biting and throwing objects at people (Parent Exhibit 35). The plan advocated the use of a token economy, using a timer for completion of tasks and pennies as a reward. Even using discrete behavioral trials, the student became aggressive when staff intervened, and his progress was inconsistent. The behavior plan noted that use of a timeout room had not been successful, because the student seemed to prefer to spend time there and even fell asleep in the room on occasion. A behavior log contained in the plan indicated that on four days in March, the student had engaged in an average of 66 self-stimulatory behaviors per day, 57 instances of compulsive behaviors per day, and approximately 4 incidents of aggression per day (Parent Exhibit 35).
During the 2001-02 school year, when petitioner's son was in fifth grade, he was placed in a life skills focused classroom with one other student. When a second additional pupil was introduced into the classroom in January, the student's tolerance began to decline, and he engaged in increased aggression against staff, including hitting, kicking and biting. With the addition of a third student, he became aggressive toward the students. His teacher reported that a corner of the room was blocked off in order to separate him from the other students and provide instruction to him within the partitioned area (District Exhibit 11). The student's consultant teacher for fifth grade testified that the student's primary form of communication was aggression (Transcript p. 162). An annual report written by his teacher in May 2002 at the end of the student's fifth grade year indicates that the student had access to the general education setting for physical education, music, art and computer lab, accompanied by his 1:1 aide and another staff member, but that he was "physically positioned a short distance from his peers for most activities due to the unpredictable outbursts of aggression" (District Exhibit 11). The fifth grade teacher reported that the student could express very few needs verbally, and his speech was still quite unintelligible. Even his "yes/no" responses were unreliable, as he tended to answer "yes" to all such questions. He was not able to achieve adequate lip closure during speech activities or when chewing and, due to pooling of saliva, he would often spit. However, his eye contact with staff had improved, and he responded to the command "look at me" 20 – 30 percent of the time. In addition, he was now able to state "I want." His toileting and hand washing was still monitored by an adult to prevent him from developing compulsive and ritualistic behaviors, and he was still working on the basics of shoe tying (District Exhibit 11). The student was unable to engage in social interaction with his peers. His play skills were well below what would be expected for his age, and had only minimally improved in the last two years. Significantly, his teacher explained that "[a]ge mates have been encouraged and taught to interact with [him, but] due to [his] communication delays, level of aggression and the social level and interests of his peers, there are limited opportunities for meaningful interactions. Most of [his] peers are past the nurturing level and are now reaching the socially competitive level of pre-puberty. In this educational setting, access to peers at [his] social level is not available" (District Exhibit 11). Finally, she reported that he had "no independent skills" and he could not be "left alone to work," because he would engage in self-stimulatory and compulsive behaviors. His teacher recommended that he be placed in a smaller classroom with similar peers.
A psychological evaluation on June 18, 2002 indicated that the student's work performance was variable, and that he engaged in high rates of ritualistic and self-stimulation behaviors, which impeded his ability to progress academically and socially. He was still functioning between a one and three year chronological level in communication, socialization, and daily living, as measured by the Vineland, which was completed by both his teacher and his parent (Parent 44). Acknowledging that there were only three other children in the classroom, the psychologist recommended a smaller class size for the student.
The student started sixth grade in respondent's middle school during the 2002-03 school year. He was placed in a life skills program in a self-contained class with four other students, taught by a special education teacher and an aide, but was also served by a full-time consultant teacher, a 1:1 aide, a newly assigned male aide, and another part-time aide for additional support. The student reportedly had great difficulty adjusting, and during the first week of school was engaged in many incidents of aggression against staff. He poked his aide in the eye twice, pulled her hair and spit on her; slapped, punched and hit the teacher, and jumped on the table; hit the principal in the knee; and kicked, hit and spit on the bus driver. In the next few weeks of school, he hit a substitute teacher, threw things at the teacher and kicked her, and spit on the bus driver several different times (District Exhibit 34; Transcript pp. 253-54).
At least four staffing meetings were held in September, largely to address concerns regarding the student's aggressive behaviors and to train additional aides in restraint techniques (Parent Exhibits 47, 48, 50-51, 54). The record indicates that the student's aggressive behaviors decreased to some degree in October with the hiring of the additional staff (Transcript p. 124; Parent Exhibit 54). Yet in November, he kicked a bus monitor in the stomach and spit on the monitor, attempted to bite his aide, and spit on and hit his teacher (District Exhibit 34). On December 5, 2002, the CSE developed a 90-day behavior support plan to address the student's target behaviors of aggression and running out of the classroom ("bolting"). The CSE also updated his functional behavioral assessment (FBA), and developed a behavior log to document incidents of aggression and bolting (Parent Exhibit 60). As a short-term objective, he was to decrease instances of aggression to no more than 9 incidents per day. (Parent Exhibit 60).
A speech-language evaluation on December 9, 2002 indicated that the student demonstrated limited functional gains in communication since 1999. He still had limited intelligibility, and used only two or three-word responses (District Exhibit 25). A teacher report dated December 10, 2002 indicates that he received most of his services one-on- one in a separate room constructed for him within the special education classroom, surrounded by the three adults assigned to him, and apart from the other students (Transcript pp. 102-03; District Exhibit 10). He occasionally asked to have the door to the rest of the room left open, and he would watch the other students in class. However, he would not communicate with them even when prompted, and was not able to say "hi" independently (District Exhibit 10). He was always escorted throughout the school building, and was still being escorted to the restroom by a male aide. The teacher noted that the student did not attend any classes in the general education setting, and that all of his tasks were individualized to accommodate his delays and "unpredictable outbursts of aggression that seem to be brought on by changes in the environment, overstimulation, avoidance behaviors or other factors of which we are unaware because of [his] inability to communicate" (District Exhibit 10).
On December 11, 2002, the CSE convened and recommended that the student be placed at Mary Cariola for a 12 month program in a 12:1:4 special classroom for the rest of the 2002-03 school year (District Exhibit 3). Mary Cariola is approved by the State Education Department as a private school site for over 30 public schools. On December 12, 2002, the student was suspended for two days for an incident in which he injured the principal and others (Parent Exhibits 62, 68). The CSE scheduled a manifestation hearing, but the parent was unable to attend on that date and suggested alternate dates (Parent Exhibits 63, 65). On December 17, 2002, the student allegedly endangered the health and safety of students and staff, by attempting to bite someone (District Exhibit 34). On December 18, 2002, the district requested an expedited hearing seeking an interim alternative educational setting (IAES) at Mary Cariola, claiming that the student's increasing size and strength were presenting a danger to himself and to staff (Parent Exhibits 68, 66, 67).
On December 23, 2002 a neurodevelopmental examination was conducted by a physician at Strong Memorial Hospital. The doctor noted that during the examination, the student threw toys he did not want, but picked them up when his father told him to. The doctor recommended a medication trial to reduce the student's tic behaviors, sniffing and hand licking and a potential trial of an antipsychotic drug to reduce self-injury and aggression (District Exhibit 17). Further, he recommended a structured behavioral program that would require "intense adult support." On December 27, 2002, the CSE sent a letter to the parents indicating that it had sent the December 11, 2002 CSE recommendation to the board of education for approval (Parent Exhibit 73).
On January 13, 2003, the hearing officer who presided over the expedited hearing found that the district had met its burden of proving that maintaining the student in his current placement represented a substantial risk to the health and safety of himself and others (District Exhibit 32). However, she denied the district's request to place the student at Mary Cariola, finding that the district had not shown that it could not adapt the middle school classroom to meet his needs. The hearing officer also found that the district failed to prove the program at Mary Cariola would be appropriate, because it was not clear the school provided ABA, and it was not clear the class profile was suitable. She ordered the CSE to convene and develop modifications to the student's program, and supplementary aids and services to prevent harm, including training staff in restraint and crisis prevention, and suggested that they consider short-term home instruction (District Exhibit 32).
In a letter dated January 24, 2003, the parents disagreed in writing with the December 11, 2002 CSE recommendation to place their son at Mary Cariola, and requested a due process hearing (Parent Exhibit 74). In February 2003, the district paid for an independent evaluation requested by the parent (Parent Exhibits 77-82, 89). The evaluator observed the student for three hours with particular attention to his disruptive classroom behaviors. Her report addressed three problem behaviors, which were sniffing, hitting and bolting, and provided suggestions for addressing each behavior (Parent Exhibit 92). The parent withdrew his hearing request so that the CSE could convene to review the independent evaluation (Parent Exhibit 85). When the CSE met on March 19, 2003 (Parent Exhibit 99), it developed an IEP that once again recommended that the student be instructed at Mary Cariola (Parent Exhibit 76). The parent disagreed with the recommendation and reinstated his request for a due process hearing on April 22, 2003 (Parent Exhibit 101).
In a decision dated September 8, 2003, the hearing officer found that an essential educational need for petitioner's son is to learn to generalize and adapt his learning into employable life skills. Based on the testimony of several different witnesses, the hearing officer found that the student was not attaining his IEP goals related to generalization of life skills at respondent's middle school program, and that the trained staff with specialized experience at Mary Cariola would help overcome the student's isolation and foster his ability to learn and apply life skills necessary for future employment. The hearing officer concluded that ABA and other methods of instructing students with autism were interchangeable and equally valid, and that the array of methods used at Mary Cariola would be as effective in teaching the student. He rejected the argument that placement at Mary Cariola was not the least restrictive environment (LRE) for the student, and found that the student's disability is so severe that the student could not receive an appropriate education in the current setting in the public school, even with supplemental aids and services. He stated that, although children with disabilities are to be educated with nondisabled children to the maximum extent possible, a child's individual needs must determine whether his placement is the LRE. He noted that petitioner's son was unable to model the behavior of children in the public school setting, because he sat alone in isolation for most of the day. He found that the student would have more opportunity to socialize with other children throughout the school day at Mary Cariola. I agree.
The parent asserts that his son made progress at the middle school, citing his use of a calculator, his ability to count, to say "no", to recognize sight words, and improvement in letter formation, typing, writing, digit problems, sound symbols, and money. He strongly disagrees with the assertion that his son has difficulty relating to his peers or has low tolerance for frustration, and points out that he plays on a trampoline with the neighborhood children, and that he had the patience to wait in line for rides at Disney World. He wants his son to participate in mainstream classes. He objects to placement at Mary Cariola because he wants his son to be in the same school as his sister and his neighborhood friends. Moreover, he does not agree with Mary Cariola's use of timeout rooms, because these rooms would reinforce his son's desire to be alone (Parent Exhibit 71[b]; Transcript pp. 314-15). He also wants his son to be able to model the behavior of nondisabled children (Transcript p. 374).
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Florida U.F.S.D., 142 F.3d 119, 122 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 03-053; Application of a Child with a Disability, Appeal No. 02-092). 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 LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
The initial inquiry is whether the CSE's recommended program, at Mary Cariola, is appropriate for this student, and whether the program is reasonably calculated to enable the student to receive meaningful educational benefits and meet the goals of his IEP (Bd. of Educ. v. Rowley, 458 U.S. 176, 192 ; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998]). The student's IEP established his primary educational goals as the following: improving basic concepts and cognitive prerequisite skills, improving language skills necessary for social interaction, improving socially acceptable behaviors, attending and transition skills, sensory processing, social skills, self-awareness and self-concept, and the critical activities required for daily living (Parent Exhibit 76). His teachers testified that he requires instruction in adaptive daily living skills, vocational resources and life skills in order to become more independent "in the school setting, at home and in society" (Transcript pp. 110, 117, 184). Even the parent's expert stated in her report that "[the student] should be working on vocational skills, not readiness skills that will have little value to his future" (Parent Exhibit 92).
There was persuasive evidence, both documentary and testimonial, that the program at Mary Cariola would be appropriate to meet the student's educational needs. Mary Cariola is a school of about 250 students, with approximately 55 to 60 students in the middle school, all of whom have special needs. The education supervisor at Mary Cariola testified that the classes consist of approximately five to eight students, taught by a special education teacher and four aides, with speech and occupational therapies integrated into the program (Transcript pp. 137-38). The school uses an eclectic behavior modification approach, including the TEACHH program, which the education supervisor described as less restrictive than ABA (Transcript pp. 132-35). Mary Cariola has a special program for autistic middle school children, called SHAPE. The school promotes generalization of skills, with rooms set up like a kitchen so that the students can learn to cook and wash dishes, and a bedroom where students can learn to change a bed and engage in other activities of daily living (Transcript pp. 152-53). The school also takes students out in the community to generalize skills (Transcript pp. 150-54). The evidence indicates that Mary Cariola would focus on, and provide opportunities for development of, vocational and socialization skills more appropriately than his current program and placement.
Respondent's school psychologist was familiar with the program at Mary Cariola and had visited the school in conjunction with the CSE's recommendation to place petitioner's son there. Both he and the assistant director of special education, who had worked with staff from Mary Cariola for 24 years, provided detailed, credible and convincing testimony that the student would derive educational benefit from the program at Mary Cariola. They stressed that Mary Cariola could address his unique needs, because it would teach him necessary skills of daily living (Transcript pp. 265-67, 283-84, 307-09). The assistant director explained that Mary Cariola staff employ behavioral principles similar to ABA (Transcript p. 309). The student's speech therapist, who was also familiar with Mary Cariola, opined that its program would appropriately address the student's communication needs (Transcript pp. 238, 242-43). His behavioral needs would be addressed by a behavioral specialist who is on staff at Mary Cariola at all times (Transcript p. 116). As for use of the timeout room, to which petitioner objects, the education supervisor testified that timeout is only one method in an extensive array of behavior management strategies available at Mary Cariola, and the behavior management strategies for each student are selected and implemented in accordance with each student's unique needs (Transcript pp. 147-49). His special education teacher at the middle school, who is familiar with the program at Mary Cariola, opined that Mary Cariola would offer greater opportunity for socialization with other students (Transcript pp. 117, 205). I find, as did the hearing officer, that the program at Mary Cariola would provide the student with educational benefit and that the other methods of behavior modification employed at Mary Cariola are as valid and effective as ABA (Transcript p. 134).
The crux of this dispute, however, is whether Mary Cariola is the LRE for the student. The burden is on the school district to show that the proposed placement is the LRE for the student (Mavis v. Sobol, 839 F. Supp. 968, 985 [N.D.N.Y. 1994], citing Oberti by Oberti v. Bd. of Educ., 995 F. 2d 1204, 1215 [3d Cir. 1993]; Application of a Child with a Disability, Appeal No. 00-093). Federal regulation provides that students with disabilities may be removed from the regular educational environment and placed in special classes or separate schooling only when the nature of severity of the disability is such that the child cannot achieve the goals of his IEP within a regular education program, even with the assistance of supplementary aids and services (8 NYCRR 200.6[a]; 34 C.F. R. § 300.550[b]; Mavis v. Sobol, 839 F. Supp. 968 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 02-081). The Individuals with Disabilities Education Act (IDEA) and its legislative history supports a strong preference for educating disabled students with their nondisabled peers "to the maximum extent appropriate" (20 U.S.C.§1412[a]; OSEP Policy Letter, 30 IDELR 141). In addition, the Regulations of the Commissioner of Education provide that to the maximum extent appropriate, provision shall be made for the eventual inclusion of students with autism into resource room programs or regular education classes (8 NYCRR 200.13[a]). Each child's unique needs must be considered in order to ensure provision of a free appropriate public education (FAPE) in the LRE (OSEP Memorandum 94-15; see also 34 C.F.R. Part 300 Appendix A, Question 1[the educational placement must reasonably promote the child's educational success ]). However, the Supreme Court has recognized that Congress' use of the phrase "appropriate" in connection with educating students with disabilities with their nondisabled peers "to the greatest extent appropriate" was meant to reflect its recognition that "some settings simply are not suitable environments for the participation of some handicapped children" (Rowley, 458 U.S. at 197 n. 21).
In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036 [5th Cir. 1989]). The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204 [3d Cir. 1993]). Courts have held that the CSE must consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. language and role modeling with nondisabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]. However, in addition, the CSE must consider what effect a disabled student's presence in a regular education class would have on other children in that class (Daniel R. v. El Paso Indep. Sch. Dist., 874 F. 2d 1036 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 94-23).
The State Review Officer has applied a two-part test for determining whether the proposed placement is the LRE for the student: (a) whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the student; and (b) if it cannot and the school intends to provide special education, whether the school has mainstreamed the child to the maximum extent appropriate (Mavis v. Sobol, 839 F. Supp. 968, 987 [N.D.N.Y. 1994] citing Daniel R.R v. State Bd. of Educ., 874 F.2d 1036 [5th Cir. 1989]; Application of the Bd. of Educ. of the Springville-Griffith Institute Cent. Sch. Dist., Appeal No. 02-081). A more "restrictive" setting may be more appropriate educationally than placing the child in a mainstream environment, if there is only minimal educational gain in the mainstream (See e.g Mrs. B. v. Milford Bd. of Educ., 103 F. 3d 1114 [2d Cir. 1997] [school district must fund residential placement for child whose failure to advance academically was due to emotional needs that could only be addressed effectively in a residential setting]).
Bearing in mind all of these considerations, and after having reviewed the record in its entirety, I find that the hearing officer's decision was well reasoned, and I agree with his conclusion that the student's placement at Mary Cariola would be an appropriate program in the LRE for the student. This case does not present the more typical dispute between regular and special education placement. Here, the conflict is between two different special education placements on the LRE continuum. Petitioner's son had already been placed, by agreement of the district and his parents, in a self-contained classroom for most of his instruction since first grade. He is currently instructed through the use of very intensive, restrictive structured methods of ABA for approximately two hours per day (Transcript p. 189), and spends most of the school day with a 1:1 teacher and aide, in a partitioned area of the classroom with very little, if any, interaction with other students. Thus, the first part of the two-part test, whether the student can be educated satisfactorily in a regular education setting, is not applicable. In any event, respondent would be not be required to educate petitioner's son in the regular education environment unless it were appropriate (Beth B. v. Van Clay, 282 F.3d 493 [7th Cir. 2002] cert. denied sub nom Beth B. v. Clay, 537 U.S. 948, 123 S. Ct. 412 ).
As for the second part of the test, it is clear that respondent's staff have consistently attempted to mainstream petitioner's son to the maximum extent appropriate and provide him with opportunities to interact with both disabled and nondisabled peers. The record is replete with instances of school staff taking the student into the lunchroom, accompanying him to a mainstreamed art class, and, whenever possible, opening the door to his part of the classroom so that he can watch other students walk by. As his aggressive behaviors were more under control, his teachers increased his opportunities to interact with nondisabled peers in the mainstream. Unfortunately, it has been well documented that petitioner's son was essentially unable to engage in meaningful interaction with either disabled or nondisabled peers. As his special education teacher explained, "Primarily he didn't have a peer group. He had age mates but there was no one in the building that was functioning at a level where true socialization goals and scripted responses could be implemented benefiting both students' programs" (Transcript p. 180).
Petitioner asserts, however, that Mary Cariola is too restrictive an environment for his son, and that his son had been improving in the self-contained classroom in the middle school with the supplementary aids and services he received. He maintains that his son's behavior had improved during the second part of the school year. I note that in viewing the placement options discussed, it would initially appear that on the LRE continuum (8 NYCRR 200.6), Mary Cariola would be considered the more restrictive setting. However, given the facts of this case, the program design in the current setting promotes isolation and is more restrictive in its implementation. Keeping the student in an isolated classroom within the self-contained classroom separated from the rest of the students, both disabled and nondisabled, would continue to increase the student's isolation and would not foster interactions with his peers. On the other hand, enrolling him in Mary Cariola, as proposed, with students of similar needs and abilities would afford him the opportunity to develop socially. I recognize that Mary Cariola serves only disabled students, but that fact does not outweigh the benefits which the student would derive from placement in the proposed class.
Whatever progress was achieved in reducing the student's aggressive behaviors was attributable to the assistance of more adults and their training in behavioral techniques. The student's ABA data sheets show that his behavior still had a tendency toward volatility (Parent Exhibit 106). It was well documented by his teachers that this student did not model the behavior of nondisabled students in his public school setting. He sometimes watched other students walk by, but did not interact with them. Although his teachers were instructing him in greeting others and say "hi," he would not do so without being prompted (District Exhibit 11). According to his IEP, he needed to be monitored "at all times to ensure safety of self, peers and adults." He could participate in extracurricular activities only "with continuous, intensive modifications and support from at least one adult" (Parent Exhibit 76).
The student has not made appropriate progress in communication, socialization or adaptive skills (Transcript p. 333), and in his present setting can only demonstrate skills in a one-on-one environment with a teacher using ABA trials (Transcript p. 327). His teachers testified that he was making no progress at generalization, and was not applying knowledge learned in one context to another context beyond the restrictive setting of his isolated classroom, despite the intensive supports provided by the district (Transcript pp. 79-80, 280, 332). Respondent's school psychologist testified that the student's communication score on the Vineland declined from a 47 to a 28 in three years, a significant decrease, indicating that his socialization had not developed and he had not made the progress he should have made (Transcript pp. 263-64). His scores in communication, daily living, and socialization were still in the two-year old to three-year old range, as they had been in July 1999 (Parent Exhibit 44; District Exhibit 20). Further, lesson plans and progress charts show that the student's progress in the most basic skills was still inconsistent (Parent Exhibit 106). Despite behavioral intervention plans in 1999-2000, 2000-01 and 2001-02, his aggressive behaviors were still interfering with his ability to learn when he entered the middle school in 2002-03 (District Exhibits 13-16).
Thus, petitioner's son receives little educational benefit, academic or otherwise, despite being provided with aides and an individualized curriculum. He was functioning at a pre-kindergarten level, far below the academic level of the other students in his class in which he receives parallel instruction. He has gained very little non-academic benefit in his classroom setting, and has to be physically separated from his classmates. In the instant case, there was little evidence that petitioner's son gained meaningful educational or social benefit from his public school placement in the physically isolated room within the self-contained classroom, even with supplemental aids and services. That the student has made minimal progress such as improved eye contact, or progress in responding to a request to "look" is insufficient to find the program appropriate, because "a modicum of developmental achievement does not constitute a satisfactory education" (Beth B., supra, 282 F. 3d at 499).
Where a student's educational progress is "virtually nonexistent" and the student's developmental progress is limited in the regular education setting, a school district may properly recommend a more restrictive setting (Beth B. v. Van Clay, 211 F. Supp.2d 1020 [N.D.Ill. 2001], aff'd 282 F.3d 493 [7th Cir. 2002] cert. denied sub nom Beth B. v. Clay, 537 U.S. 948, 123 S. Ct. 412 [upholding the determination of a hearing officer that a school district properly recommended a self-contained life skills program at a neighboring school district for a 13 year-old girl with Rett Syndrome, who was non-mobile and non-verbal and functioned at a six-year-old level].; M.L. v. Federal Way School Dist., 341 F.3d 1052 [9th Cir. 2003][student who had virtually no communication or independent skills and could not play properly was correctly placed in a self-contained classroom, because testimony suggested it would foster generalization and communication skills he would not learn if mainstreamed]);(see also. DeVries v. Fairfax County School Bd., 882 F.2d 876 [4th Cir. 1989][child was properly placed in vocational program since placement in neighborhood high school would involve the child's monitoring classes rather than participating in such classes]; M.A. v. Voorhees Tp. Bd. of Educ., 202 F. Supp.2d 345 [D.N.J. 2002], summarily aff'd, 65 Fed. Appx. 404, 177 Ed. Law Rep. 936 [3d Cir. 2003] [upholding the district's proposal to place a 10-year old child in an out-of-district educational program, because the child could not receive academic or social benefit from regular classroom placement, even with supplemental aids and services, had only minimal interaction with nondisabled peers, and created apprehension among other students and teachers because he assaulted teachers and students]; M.C. v. Central Regional Sch. Dist., 81 F. 3d 389 [3d Cir. 1996] [placement of 16 year-old in residential school was necessary to reduce self-stimulatory behavior and to improve his toileting, eating and communication skills; compare Application of the Bd. of Educ. of the Springville-Griffith Institute Central School District, Appeal No. 02-081 [district must place student in regular education inclusion program because respondent's autistic son was social, had made progress in social groups, had improved academically, was reading at a second grade level, using a third grade science and social studies text, and was able to model the behavior of nondisabled students in physical education class].
I credit the testimony of respondent's witnesses that the Mary Cariola environment is designed to meet this student's unique needs (Transcript p. 335, 337), and I find that the school district has met its burden of proving that Mary Cariola is an appropriate program in the LRE for this student. In many respects, the program at Mary Cariola, while lacking mainstream classes, would be a less restrictive setting for this student. Although he will not have the opportunity to participate in mainstream classes, the program at Mary Cariola envisions that he will be integrated into the community and will have opportunities to socialize with other students. In his current placement at respondent's middle school, the student does not have meaningful contact with other students or with the outside community. To maintain this student in the isolated room within the self-contained classroom at the public school "would result in a failure to meet the majority of his unique needs" (M.L. v. Federal Way School Dist., 341 F.3d 1069 [9th Cir. 2003]). I agree with the hearing officer that the program offered by Mary Cariola, with its emphasis on vocational and life skills is an appropriate program in the LRE for this student.
I must also note that State regulation requires that when a child is to be placed in a special education class, the CSE must assure that such child is grouped with other children who have similar individual needs (8 NYCRR 200.6[a]). Although respondent did not produce evidence about the specific individual children who would be placed in this student's proposed special class, it was clear that Mary Cariola's SHAPE program specializes in children who are autistic and have significant behavior management needs, similar to petitioner's son (District Exhibit 35). Mary Cariola's education supervisor testified that she could not produce a projected class profile because she had not yet processed an intake referral on petitioner's son, and because at Mary Cariola the newer students are placed into a small classroom setting so that staff can become familiar with their particular needs, and later be transferred into classrooms with a suitable group (Transcript pp. 138-40). I find no reason to doubt the testimony of the education supervisor that the student would be suitably grouped at Mary Cariola, based on her knowledge that he was a middle school student with autism and behavior management needs and that Mary Cariola's mission is to provide educational services to this student population. I also note that he is not currently placed with children of similar needs.
I have considered petitioner's other allegations and find them to be without merit.
THE APPEAL MUST BE DISMISSED.
Albany, New York
November 26, 2003
PAUL F. KELLY