The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Westhill Central School District
Legal Services of Central New York, Inc., attorneys for petitioners, Susan M. Young, Esq., of counsel
Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision finding that they had not met their burden to show that they had provided their son with appropriate educational services and consequently denying their request for tuition reimbursement for their son's attendance at St. Joseph's Preschool (St. Joseph's), for the costs of a 1:1 aide to accompany their son while he attended that program, and for consultant teacher services related to the child's applied behavioral analysis (ABA) program. Petitioners also appeal from the hearing officer's conclusion that their son could benefit from a regular education kindergarten program. The appeal must be sustained in part.
At the outset, I will address a procedural issue. Respondent objects to petitioner's affidavit annexed to the petition on the basis that the State Review Officer (SRO) should not consider matters outside of the record before the impartial hearing officer. The affidavit provides additional information about the qualifications and background of the 1:1 aide assisting petitioners' son at the preschool, as well as the frequency and extent of that petitioner's communication with the 1:1 aide and the preschool, information regarding the child's goals and objectives at the preschool, and her communication with the 1:1 aide and the preschool relative to her son's program at the preschool. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). The information in the affidavit is necessary to complete the record as it is relevant to the extent to which petitioners have selected appropriate educational services for their child. Some of the information in the affidavit was also unavailable at the time of the hearing. I will therefore exercise my discretion and accept the affidavit (Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 03-053).
Petitioners’ son was four years old at the time of the commencement of the hearing in September 2003. At that time, petitioners had enrolled him in a regular preschool program at St. Joseph’s and were paying for a 1:1 aide at the preschool to facilitate his attendance in that program as well as for consultative teacher services to oversee and coordinate his ABA program. As part of an agreed upon pendency program, respondent was providing petitioners' son with educational services, including special education instruction, speech-language therapy, occupational therapy, physical therapy, and ABA instruction at its Walberta Park School (Walberta).
Petitioners’ son was referred to respondent's committee on preschool special education (CPSE) in November 2001 (Exhibit 3). As part of respondent's CPSE evaluation, a private agency evaluated the child in January 2002, when he was three years old (Exhibit 1). The child's standard score of 89 on the cognitive development subtest of the Developmental Assessment of Young Children (DAYC), representing an age-equivalent of 89 months, indicated a five-month delay. A family interview using the DAYC checklist resulted in a standard score of 83, indicating cognitive ability in the below average to low average range. Given the child's observed level of distraction and difficulty in focusing, the private agency evaluators concluded that the psychological test results might underestimate his cognitive ability. On the Preschool Language Scale-Third Edition (PLS-3), petitioners’ son achieved a standard score of 53 in total language (1st percentile), 66 in auditory comprehension (1st percentile), and 50 in expressive communication (1st percentile), indicating moderate delay in receptive language skills and severe delay in expressive and overall language skills On the physical subtest of the DAYC, petitioners' son received a standard score of 82, which represented a 12 month delay, most of which appeared to be within the fine motor domain. The evaluators reported that during parts of the evaluation, petitioners' son required frequent prompts and cues to stay on task, that eye contact was limited, close proximity was necessary for redirection, that he did not engage in testing activities and became upset when redirected to do so, and that he strayed from the room or was unable to remain seated for testing. The evaluation team recommended that petitioners' son receive speech-language therapy, occupational therapy, special education teacher services in an integrated classroom setting, and an evaluation to determine if the child had a pervasive developmental disorder (PDD).
On February 6, 2002, respondent’s CPSE determined that petitioners’ son met the qualifications for a preschool student with a disability and recommended that he receive at home speech-language therapy and occupational therapy (Exhibits 3, 4 p.1, 46). Thereafter, respondent's CPSE approved the child's attendance at the Bellevue Heights Nursery School (Bellevue Heights) effective September 2002 (Exhibit 45).
In July 2002, petitioners brought their son to the State University of New York Upstate Medical Hospital (Upstate Medical) for a pediatric developmental evaluation. As part of this evaluation, a speech-language pathologist prepared a functional communication analysis. She noted that the child's reluctance to interact precluded cognitive testing1 but believed that his expressive and receptive language skills were above his previously tested level as he lacked the focus to apply his skills. Among other things, she recommended a teaching assistant or 1:1 aide to keep the child directed to instructional or learning activities, to teach socialization skills by role playing as part of the child's speech therapy, and to develop a consistent approach to redirection in order to improve the child's attending skills (Exhibit 46).
The chief of developmental pediatrics at Upstate Medical evaluated petitioners' son in July 2002 (Exhibits 8, 9). She diagnosed the child with autism and also made recommendations which included occupational therapy for motor skills and sensory deficits and an intensive program of speech therapy to address social interactions and speech development.
In July 2002, the CPSE recommended hiring a special education itinerant teacher (SEIT) to provide petitioners' son with six hours a week of ABA instruction at home (Exhibits 4 p. 4, 47; Transcript p. 404). Subsequent to that recommendation, petitioners decided that they wished their son to continue with ABA during the 2002-03 school year rather than attend Bellevue Heights. Consistent with this, in September, the CPSE increased the child's at home ABA services to 28 hours a week by recommending an increase to 12 hours a week of services by the SEIT, the addition of a 1:1 (ABA) aide for 12 hours a week, and the provision of the child's speech-language therapy by a therapist experienced in using ABA techniques in speech-language therapy (Exhibits 4 p. 6, 49; Transcript pp. 411-12). In October, the CPSE increased the child's at home ABA services to a total of 37 hours a week when it recommended an additional nine hours of ABA services (Exhibits 51, 52; Transcript p. 412).
In November 2002, petitioners requested and the CPSE approved another developmental evaluation of the child (Exhibits 4 p. 7, 5; Transcript p. 415). This evaluation was conducted in February 2003 at the Children’s Unit for Treatment and Evaluation of the Institute for Child Development of the State University of New York at Binghamton (Exhibit 11). The evaluators administered the Slossen Intelligence Test–Primary (SIT-P), which yielded standard scores of 95 on the verbal scale (average range), 89 on the nonverbal scale (low average range), and 91 on the total scale (normal range). The Child Behavior Checklist (CBCL) identified problems relating to withdrawal and to depression, anxiety, and social withdrawal. The evaluating team concluded that a diagnosis of pervasive developmental disorder, not otherwise specified (PDD NOS), adequately characterized the child’s clinical presentation at that time. However, because the child had previously been diagnosed with an autistic disorder, a diagnosis of autistic disorder, in partial remission, was deemed more accurate. This reflected an improvement in the child's activities related to social interaction (Exhibit 11; see also Transcript p. 357).
Acknowledging that good progress was being made by the child in his ABA program, the evaluating team made a number of recommendations, including increasing the child’s auditory attention, his ability to follow verbal directions, his ability to participate in age-appropriate conversational exchanges and his ability to use preferred toys in a social manner, and providing opportunities for him to participate in structured play with same age peers (Exhibit 11).
The child’s educational service providers reviewed the child’s progress in the spring of 2003 for his transition to school age programming. In April 2003, the child's speech-language therapist evaluated the child. She reported that petitioners’ son had benefited from learning new skills using the ABA methodology, and generalizing these positive results to natural situations rather than in a 1:1 ABA setting. The therapist reported that petitioners' son had great difficulty with social and pragmatic language skills, especially with peers and that he needed cues and adult models to initiate, maintain, and terminate conversations. She also indicated that the child was just learning appropriate play skills and that he continued to need reminders and cues to engage in appropriate social interaction (Exhibit 13).
The child’s occupational therapist also evaluated the child in April 2003. He reported that the child's spontaneous play skills and social abilities remained quite stilted and limited to practiced scenarios. The therapist reported that the child's pragmatic language was difficult to follow (Exhibit 15).
The child’s physical therapist evaluated him in May 2003. She reported that the child had made significant progress in skill development, strength, and endurance, and recommended that he be provided opportunities to practice these skills and to begin to use them with his peers. The therapist also explained that some of these skills would be easier to learn and coordinate if the child had peers to model from and to engage (Exhibit 14).
The child's SEIT prepared a progress report in May 2003. She reported that petitioners’ son had mastered more than 70 skills relating to different aspects of eye contact, motor movements, directions, specific information, communication, language, and recognition of site words and that he had made substantial and greater than anticipated progress and measured growth. She also reported that he continued to need programming with typical peers and in various settings for learned skills relating to eye contact, verbal imitation, play skills, language development and social skills to generalize. The special education teacher indicated that petitioners' son met criteria to be educated with typical peers in a preschool setting and recommended that he begin a programming in a preschool (Exhibit 12). The evaluator indicated that these were also the recommendations of the child's current ABA therapists and his speech-language therapist.
Respondent's CPSE met on May 29, 2003 to develop the child's individualized education program (IEP) for summer 2003 (Exhibits 6, 7; Transcript p. 82). It recommended that the child’s summer program continue at its existing level of services except for a reduction in occupational therapy (Exhibits 6, 7; Transcript p. 107). As previously, all services would be provided in the home (see Transcript p. 107). Minutes of the CPSE meeting note that self-stimulating behavior continued and that ABA instruction was focusing on the generalization of skills to other environments (Exhibit 7).
As part of the child's transition from preschool services to school age services, respondent's committee on special education (CSE) met on June 16, 2003 to determine whether petitioners' son was a student with a disability and, if so, to develop an IEP for the 2003-04 school year when he would be eligible, because of his age, to enroll in kindergarten. Petitioners attended the June 16 meeting, as did the child's speech-language therapist, SEIT, one of his ABA therapists, and an ABA consultant and behavior analyst who was present at petitioners' request (Exhibit 24). The CSE recommended classification of the child as a student with autism (Exhibit 26; Transcript p. 87). It recommended speech-language therapy five times a week and occupational therapy and physical therapy twice a week, for 30 minute sessions in a small group setting (Exhibit 23; Transcript pp. 88-90). It also recommended that petitioners' son receive 30 minutes a day of special education instruction in a special education classroom (Exhibit 23; Transcript p. 305).
During the June 16, 2003, CSE meeting, petitioners and their consultant requested placement in a half-day preschool program with a 1:1 aide to accompany him to that program. The child's SEIT, speech-language therapist, and ABA therapist concurred with this request. Respondent's CSE chairperson advised the other members of the CSE that while a 1:1 aide could be provided if petitioners' son attended kindergarten at respondent's school, a 1:1 aide would not be provided if he instead enrolled in preschool (Transcript pp. 134-35). The CSE chairperson also advised the participants that respondent could not provide an aide outside the school system (Transcript p. 135).4 The CSE did not reach agreement on whether petitioners' son should enroll in kindergarten for the 2003-04 school year, the record is unclear whether it made a specific recommendation with respect to the extent to which the child would participate in respondents' kindergarten program if he did, and the IEP made no provision for a 1:1 aide (see Exhibits 23, 24, 42; Transcript pp. 83-85, 134-35, 147-51, 276, 300-305, 479). Goals and objectives were mentioned at the meeting; however, copies were not provided to petitioners prior to or at the meeting, nor were they read aloud, reviewed individually, or made available for review and discussion at the meeting (Exhibit 23; Transcript pp. 91, 160-61, 283, 522). At the conclusion of the meeting, petitioners provided the CSE with a letter stating their disagreement with the CSE's recommendation because it had not recommended a preschool program with a 1:1 aide, and requested exercise of their due process rights (Exhibit 57; Transcript p. 595). The next day, petitioners delivered a second letter which included a "request for due process proceedings form" (Exhibit 27). They added objections to the amount of speech-language services recommended as inconsistent with that required for children with autistic disorders5 and indicated that the CSE should have recommended consultant teacher services (Exhibit 27). Shortly thereafter, petitioners reviewed respondent's CSE file with respect to their son and submitted another letter supplementing and setting forth additional concerns regarding the June CSE meeting, its process, and the draft IEP (Exhibit 28).
As a result of petitioners’ correspondence and request for a hearing, respondent determined to hold a further CSE meeting. However, the parties were not able to reach agreement on a date for such a meeting. Respondent scheduled follow-up CSE meetings for July 7, July 21, and for July 29, 2003 (Exhibits 30, 35, 58; Transcript pp. 94-97). Petitioners advised respondent that they were unable to attend a CSE meeting on these scheduled dates because these dates conflicted with their son's first dental appointment, with the child and his father's attendance at a summer camp program, and with petitioners' family vacation which had been planned for several months (Exhibits 31, 34, 59). Petitioners requested that the meeting be scheduled sometime after August 24, 2003 as a result of these conflicts and also told respondent that they wished the consultant who had attended the June CSE meeting with them to attend the follow-up CSE meeting as well but that she would be out of the country between July 28 and August 12, 2003 and available after August 24, 2003. Respondent advised that proceeding at the end of August would result in the loss of educational services to the child at the beginning of the 2003-04 school year (Exhibits 33, 35). Petitioners did not believe this was true as the previous year, respondent's CPSE had met on September 3, to develop the child's educational program for that year (Transcript p. 606).
Respondent determined to proceed and its CSE met on July 29, 2003. Neither petitioners nor their consultant, who had submitted a report to the CSE on or about July 10, 2003 detailing her concerns about the outcome of the June 16, 2003 meeting (Exhibit 36), were in attendance (Exhibit 39). The child's special education teacher attended the meeting; his speech-language therapist and ABA therapists did not (Exhibit 39; Transcript p. 144). Petitioners’ July 10 letter to the chair was read (Exhibit 38; Transcript p. 97). The CSE chair testified that the report from petitioners’ consultant was discussed and not read and it is unclear whether copies of that report were available for CSE members to review (Exhibit 36; Transcript pp. 100, 143). This time, the CSE unambiguously recommended that petitioners' son attend kindergarten at Walberta with a 1:1 aide, where he would also receive his related services. It decreased the size of the group in the child's speech-language therapy sessions from three to two to comply with the applicable state regulations (Transcript pp. 97, 154). It made no changes to its previous decision to recommend 30 minutes a day of special education instruction or to its recommendations relating to occupational therapy and physical therapy. It added adaptive physical education, a service that it had not previously recommended (Transcript p. 97) and pursuant to 8 NYCRR 200.13(d) also recommended parent counseling (Transcript p. 99). The CSE did not discuss or approve petitioners' request that their son's program include ABA instruction by a special education teacher (Exhibits 42, 56, p. 4). It did not recommend any consultant teacher services (Exhibit 36 p. 8; Transcript p. 153). Finally, this time it did review and approve the specific goals and objectives for the child’s IEP (Transcript p. 98). Respondent subsequently gave petitioners' notice that the child's IEP for the 2003-04 school year had been approved (Exhibits 40, 41, 42).
Petitioners subsequently requested a hearing with respect to the July 29, 2003 CSE meeting and this was consolidated with their earlier request for a hearing relative to the June 16, 2003 CSE meeting (Petition ¶ 65; Answer ¶ 65). The hearing commenced on September 8, continued on September 9, and concluded on September 10, 2003. The parties raised numerous issues including whether the child should attend kindergarten or preschool; whether there was a full discussion of relevant issues at the CSE meeting(s); whether the July CSE meeting was properly scheduled to allow petitioners and their expert to attend; whether petitioners had an opportunity to review and discuss their son’s goals and objectives at the CSE meetings; whether the IEP resulting from the CSE meetings should have included strategies to address the child's stereotypical and self-stimulating behavior; and whether the IEP provided an appropriate level of ABA and consultant teacher services. Petitioners requested in relevant part reimbursement for the cost of their son's preschool tuition at St. Joseph's, for the costs of the 1:1 aide who was accompanying him to the preschool, for ABA instruction, and for consultant teacher services.
The hearing officer rendered her decision October 30, 2003. She concluded that the IEPs resulting from respondent's June and July 2003 CSE meetings were procedurally and substantively flawed and that therefore respondent had not offered a free appropriate public education (FAPE) to petitioners' son.7 With respect to the June CSE meeting, the hearing officer concluded that in light of its knowledge that petitioners desired a placement different than the CSE chair was recommending, that meeting should have been held earlier in the school year. She also concluded that respondent's failure to develop or discuss the child's goals and objective at that CSE meeting impaired petitioners' participation in the development of their son's program and that respondent did not permit a full discussion by petitioners and their consultant with respect to petitioners' request that the child attend a preschool program with a 1:1 aide. With respect to the July 2003 CSE meeting, the hearing officer determined that respondent's failure to make arrangements for petitioners to participate in the meeting by telephone conference (see 8 NYCRR 200.5[d])8 and to schedule that meeting at a time such that petitioners' consultant could participate was improper.
The hearing officer further concluded that the IEP resulting from the July CSE meeting was substantively flawed. She found that the IEP lacked necessary information with respect to the child's substantial social and management needs; was not specific regarding the assistance to be provided by the child's 1:1 aide; should have provided for consultant teacher services to provide training to respondent staff and to coordinate the child's program; should have provided for four hours a week of the ABA services requested by petitioners; and that it specified the child receive 30 minutes of special education instruction without any underlying rationale by respondent. The hearing officer also concluded that petitioners' son exhibited stereotypical and self-stimulatory behavior that impeded his learning but that the IEP failed to describe or addressed theses issues as required (see 8 NYCRR 200.4[d][i] and [i]). She further found that the CSE should have discussed and addressed how petitioners' son would transition from a program of 33 hours of special education/ABA services a week to one with a substantially reduced amount of such services. As indicated above, the hearing officer concluded that additional ABA and consultant teacher services were appropriate. Finally, and with respect to the general question of kindergarten or preschool, she determined that petitioners' son could receive educational benefit in a kindergarten program if he had appropriate supports and services. To implement her decision, she ordered respondent to properly convene its CSE with all required members and to develop an appropriate IEP for the child as set out in her opinion. Respondent's CSE met on December 5, 2003, and developed a revised IEP (Answer ¶ 146).
The hearing officer, however, denied petitioners' request for preschool tuition and the cost of the 1:1 aide who would accompany their son to that program. She concluded that the record contained little information about the preschool and little proof that the child's goals and objectives would be met there.
Petitioners appeal from that part of the hearing officer’s decision that denied their request for tuition reimbursement, for the cost of the 1:1 aide, and for the cost of a consultant teacher to oversee and coordinate their son's ABA program. They also appeal that part of her decision that had concluded that the child could receive educational benefits in a kindergarten program. Finally, petitioners request that I affirm those parts of the hearing officer's decision that found in their favor and that I order the CSE to develop an IEP for the child consistent with what they had proposed to respondent in June 2003. Respondent has not appealed the hearing officer's determination that it failed to offer petitioners’ son a free appropriate public education for the 2003-04 school year.
A party may not appeal that part of a hearing officer's decision for the sake of affirming a finding with which he or she agrees. Only a party aggrieved by all or part of a hearing officer's decision may appeal to an SRO (34 C.F.R. 300.510[b]; 8 NYCRR 200.5[j]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 02-086; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 99-029). Petitioners are not aggrieved by that part of the hearing officer's decision that they seek to be affirmed and I therefore dismiss that portion of their appeal (Application of a Child with a Disability, Appeal No. 02-086).
I now consider petitioners' appeal from the hearing officer's conclusion that petitioners may not receive reimbursement for their son's tuition at St. Joseph's, the cost of the 1:1 aide to accompany him to their program and for consultative teacher services to oversee and coordinate his ABA and program. The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP required by the Act (20 U.S.C. § 1401) and it is the IEP that tailors the required FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). A board of education may be required to pay for educational services obtained for a child 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 (Sch. Comm. of Burlington v. Dep't. of Educ. of Mass, 471 U.S. 359 ). The failure of a parent to select a program with certified teachers and known to be approved by the state in favor of an unapproved option which includes uncertified teachers is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the child through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Rowley, 458 U.S. at 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). A denial of FAPE will occur if a procedural violation of the IDEA compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31621158 [S.D.N.Y. 2002]). A denial of FAPE will also occur if the procedural violation of the IDEA seriously infringed on a parent's opportunity to participate in the creation or formulation of the IEP (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F.Supp. 1242, 1255 [D. Vt. 1996]. Accord Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 ). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
As noted, the hearing officer concluded that respondent did not meet its burden of proof to show that it offered petitioners' son a FAPE for the 2003-04 school year. Pursuant to federal and state regulations, an impartial hearing officer's decision is final and binding upon the parties unless appealed to the SRO (34 C.F.R. 300.509; 8 NYCRR 200.5[c]). As set forth above, respondent has neither appealed nor cross-appealed from this determination or the hearing officer's order consistent therewith that it develop a new IEP setting forth an appropriate educational program for the child. As a result, the parties are bound by this part of the hearing officer's decision (Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073; see also Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ. of the Arlington Central School District, Appeal No. 98-7). Accordingly, I find that petitioners have prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.
Petitioners bear the burden of proof with regard to the appropriateness of the educational program and services for the 2003-04 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioners must show that they provided an educational program which met their son's special education needs for the 2003-04 school year (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29). A private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the LRE 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., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
Petitioners enrolled their son in St. Joseph's preschool and paid for the cost of a 1:1 aide to accompany him to this program, as well as for consultant teacher services to oversee and coordinate his ABA services. St. Joseph's is a private regular education preschool (Supplemental Testimony of Petitioner pp. 1-2). Other than its beginning transition, St. Joseph's preschool program is approximately 15 hours a week, and began in September, about the same time as the hearing (Petitioner's Supplemental Testimony p. 2; Transcript pp. 495, 506, 646). Thirteen children attend on Monday, Wednesday, and Friday; nine on Tuesday and Wednesday (Petitioner's Supplemental Testimony p. 2). The class contains other children, who like petitioners' son, are four years old (Petitioner's Supplemental Testimony p. 2). The preschool class includes 45 minutes of play and has centers where children are broken up for smaller group activities (Petitioner's Supplemental Testimony p. 2; Transcript pp. 482-84). The classroom has dividers running the height and length of the room to limit distraction from contemporaneous activities (Petitioner's Supplemental Testimony p. 2). Two teachers and a teacher's aide have instructional duties (Petitioner's Supplemental Testimony p. 2).
The director of St. Joseph's is a certified special education teacher (Petitioner's Supplemental Testimony p. 1), who has experience working with children and aides using ABA (Petitioner's Supplemental Testimony p. 1). The child's 1:1 preschool aide had not worked with petitioners' son before. She has a bachelor's degree in physical education and is provisionally certified in physical education (K-12) with a concentration in elementary education (Petitioner's Affidavit ¶ 2). She has also received some education and training in ABA and is in a Master's program in adaptive physical education (Petitioner's Affidavit ¶ 2; Petitioner's Supplemental Testimony p. 2; Transcript p. 557). The 1:1 aide has accompanied the child to his preschool class since it began in early September (Petitioner's Affidavit ¶ 1). The child's father and a departing ABA therapist also accompanied the child to the preschool for at least the first two or three days of the program as part of the orientation process and to help familiarize the aide with the child, his behaviors and behavior plans that had been successful with him (Transcript pp. 497, 646-47). The aide is to prompt and redirect petitioners' son as appropriate during the preschool program; as part of this, she will help with transitions, minimize problem behavior, focus the child's attention, as well as assist him in learning how to interact with other children by helping him to generalize behavior learned through the ABA technique (see Exhibit 56; Transcript pp. 496-97). During the 45 minutes of play, the aide works with the child and one or two other children in the class on peer programs (Petitioner's Supplemental Testimony p. 2). The child's mother, who is a certified special education teacher, sees to it that the aide focuses on peer-related and other goals and objectives which were developed and approved for the child for the IEP recommended at the May 2003 CSE meeting, which was the IEP in place just prior to those IEPs which are the subject of this hearing (Petitioner's Affidavit ¶ 4; Transcript pp. 498-99). The child's mother and his 1:1 aide speak daily and a communication notebook is used to facilitate communication (Petitioners' Affidavit ¶ 4). They discuss the extent to which the child is meeting his goals and objectives and interventions are implemented (Petitioner's Affidavit ¶ 4, ¶ 5). St. Joseph's staff provides the child's mother with weekly lesson plans to allow appropriate pre-teaching activities prior to the class (Petitioners' Affidavit ¶ 4). The mother speaks to the staff and the child's preschool teachers at St. Josephs on a daily basis and they have regular meetings to discuss the child's progress (Petitioner's Affidavit ¶ 3). The ABA consultant hired by petitioners is a special education teacher (Transcript p. 499). She also serves as a consultant for another school district and is familiar with transitioning from home-based to school-based programs (Transcript pp. 499-500). As part of her responsibilities, she has visited St. Joseph's an average of four times a month to observe petitioners' son and see where improvement needs to be made (Petitioner's Affidavit ¶ 6).
I do not agree with the hearing officer that the record contains little information about the preschool. As indicated above, petitioners provided considerable relevant information. Although staff of the preschool did not testify at the hearing, the information about the preschool comes from petitioners' presence at, contact with, and observation of the preschool. Petitioners also provided relevant information about the balance of the program that they provided their son. None of the information is rebutted. No claims were made that the information provided was incomplete. Respondent has presented no contrary testimony notwithstanding its opportunity to do so. I also note that the hearing was held during the time the preschool was beginning for the school year.
There is no dispute that the child's greatest needs include those relating to social interaction and pragmatic language (Exhibits 11, 13; Transcript pp. 101, 247-48, 272, 350-51, 439-40, 622). His special education teacher during the 2002-03 school year concluded that petitioners' son met criteria to be educated along side typical peers in a preschool setting (Exhibit 12). That certified professional, as well as his speech-language therapist and his ABA therapists for the 2002-03 school year all recommended that his educational program transition to a preschool environment (id.). With this child's continuing significant pragmatic language and social needs in mind (Exhibits 1, 8, 9, 11, 12, 13, 15, 36, 46), the detailed information about those needs and the child set forth above, and given the nature of a preschool program, the information set forth above with respect to St. Joseph's, including the important and significant opportunities it provides the child to learn from and participate in informal social interaction and communication with his peers and for instruction in a small group without distraction by another, I find that St. Joseph's met the child's needs and that it was an appropriate program for petitioners' son.9 I also note that because of its regular education nature, it did not provide the child with a restrictive environment.
I also find that it was appropriate for petitioners' son to have a 1:1 aide accompany him to St. Joseph's. As indicated above, although the child has made measurable improvement, he continues to exhibit self-stimulating and stereotypical behavior (Exhibits 1 p. 2, 11, 13, 36, 62; Transcript pp. 185-86, 188, 217-19, 230, 432-33, 540-41, 547). Additionally, he needs consistent personal prompting and redirection on a regular basis in order to be able to respond appropriately to external stimuli (Exhibits 13, 15, 36, 56; Transcript pp. 216-18, 542, 545, 549-51). Efforts to direct the child's learning not infrequently result in the need to appropriately manage his behavior (Exhibits 56, 64; Transcript pp. 221-22, 447, 543, 547, 609; see Exhibit 62). Persons who were teaching the child during the 2002-03 school year, including his special education teacher, his certified speech-language pathologist, his ABA instructors, and his physical therapist all recommended that a 1:1 aide was necessary to address the difficulties with the child's behavior and to provide the help he needed to attend so he could more appropriately respond to his environment and thereby realize the educational opportunity offered by a preschool program (Exhibit 56). I note that respondent states no disagreement with the child's need for a 1:1 aide and in fact believed that such assistance would be necessary for him to benefit from respondent's kindergarten program (Exhibit 42; Transcript pp. 140, 282, 346-47).
Finally, petitioners' son has had measurable and significant success using the ABA methodology. The hearing officer recognized that the child had considerable learning yet to take place and that he would receive educational benefit from a continuation of the first year of his ABA program as he became of school age. She therefore ordered respondent to provide him with continuing ABA services. As noted, petitioners' son requires a 1:1 aide to benefit from preschool. That aide, who accompanies the child to the St. Josephs' preschool program, uses ABA techniques to facilitate the child's social interactions and to redirect his behavior. Both petitioners are also continuing to provide their son with a substantial amount of ABA services a week. In light of the significant amount ABA programming which continues to be a part of the child's educational program for the 2003-04 school year, I find that four hours a month of consultant teacher services to oversee and coordinate the child's ABA services is required to meet his needs and is appropriate for him. Given that petitioners' son receives ABA and related services at Walberta, petitioners' ABA consultant should work with the school based providers to ensure that all of the ABA services the child receives are integrated and appropriate. Accordingly, based on the above, and to the extent herein, I find that petitioners have met their burden of demonstrating the appropriateness of the preschool program and services they are providing to their son for the 2003-04 school year and that they have prevailed with respect to the second Burlington criterion for the reimbursement of their tuition at St. Joseph's and the costs of a 1:1 aide and an ABA consultant.
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. Though the hearing officer explained that she did not reach this issue, she referenced numerous facts, which showed that petitioners cooperated with the CSE. Respondent argues that petitioners refused to attend the second CSE meeting and delayed the hearing process. This argument is without merit. Petitioners presented valid reasons for not being able to attend the July CSE meetings. I also note, as the hearing officer indicated, that respondent did not make an active effort to ensure petitioners' attendance at the July 29, 2003 CSE meeting by telephone. I find that petitioners have cooperated with the CSE. With this in mind and in the absence of any other equitable factor, I also find that equitable considerations support petitioners' claim for reimbursement for the tuition at St. Joseph's preschool, the costs of a 1:1 aide to accompany their son at that program, and for the ABA consultant teacher services identified above.
Petitioners appeal the hearing officer's conclusion that petitioners' son could receive educational benefits in a regular education kindergarten. They also request that I order the development of an IEP consistent with that which they proposed in June 2003. In light of the fact that the hearing officer determined that respondent's IEP had not offered petitioners' son an appropriate kindergarten program, that there was no appeal of the hearing officer's determination that respondent did not offer petitioners' son an appropriate program for the 2003-04 school year, and my finding that petitioners' should be reimbursed as set out above for this school year, I need not address these matters. In light of all of the above, there is no reason to address petitioners' other contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it denied petitioners' request for tuition reimbursement and the costs of certain educational services for the 2003-04 school year; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at St. Joseph's preschool during the 2003-04 school year, the cost of a 1:1 aide to accompany him at that preschool program for a maximum of 15 hours a week, and the cost of ABA consultant teacher services as described above for a maximum of four hours a month, and all upon petitioners' submission of proof to respondent of payment for such expenses.
Albany, New York
January 22, 2004
JOSEPH P. FREY
1I note that the physician who subsequently completed the PDD evaluation conducted at least part of it at the child's home (Transcript p. 402).
2Some of these mastered programs were run periodically so that petitioners' son would maintain the skill at that level.
3Petitioners' son would become five years old prior to December 1, 2003. As such, he was a school-aged child eligible to attend kindergarten as of the beginning of the 2003-04 school year (see Education Law § 3202). As such, respondent's CSE had the responsibility to evaluate him, determine whether he was a student with a disability and if so, to recommend an individualized education program for him (Education Law § 4402; 8 NYCRR 200.1[zz]; 200.4[b], [c] and [d]).
4The CSE chair had previously spoken and written to petitioners that there was a lack of precedence in the county for a preschool child receiving the assistance of a 1:1 aide, that she had been told that it hadn't ever been done at respondent's school district, that respondent could "be creative with the when and how, but not with the where" which meant that petitioners' son would have to attend Walberta and that she was concerned about "community ramifications" if respondent provided the child with a 1:1 aide at a preschool (Exhibits 54, 55; Transcript pp. 110, 111, 114, 115). I note here that under appropriate circumstances a child with a disability may receive the assistance of a 1:1 aide in a preschool (see e.g. Application of a Child with a Disability, Appeal No. 02-022). Nor, as respondent argues in this case, can state law or regulations be construed to prohibit a school district from providing or paying for services at a preschool if such is required to provide the child with a FAPE (Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 97-78).
5The applicable regulations at 8 NYCRR 200.13(a)(4) provide that a child with autism is to be provided with a minimum of two and one-half hours of speech-language therapy a week if such services are provided on an individual basis or in a group of two. If provided in a group of between three and six, inclusive, the regulations provide that the child is to receive a minimum of five hours a week of such services. Respondent's CSE had recommended that the child receive speech-language services in a group of three, but provided only that he receive services for two and one-half hours a week.
6The scheduling of the follow-up CSE meeting was also apparently affected because the hearing in this matter was originally scheduled to begin in August, but this was eventually changed when petitioners retained their current counsel (Transcript pp. 604-605).
7The hearing officer did not consider whether the July 2003 CSE meeting superceded the June CSE meeting in respondent's procedures and if so, whether the hearing officer needed to consider any part of petitioners' initial appeal. This question is not relevant to this appeal and is therefore not addressed.
8Respondent's notice scheduling the July 29, 203 hearing date advised petitioners that it was willing to include them in that meeting by telephone (Exhibit 35) but notwithstanding being timely advised that petitioners' family would be out of the school district on vacation that day, did not advise them what to do to facilitate such a conference call or ask them to call and provide a telephone number where they would be on that day so that such a conference call could take place.
9 Contrary to the hearing officer's suggestion, St. Joseph's is not required to have and implement its own IEP (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20) and it is not required to have specific goals and objectives. Notwithstanding that, petitioners have pointed out that the 1:1 aide focuses on peer related and other goals and objectives from the summer 2003 IEP (Exhibit 7). I have reviewed these goals and objectives and find them generally appropriate for petitioners' son as they address the child's peer interaction, pragmatic language, comprehension, and learning skills deficits.