The State Education Department
State Review Officer

 

No. 05-043

 

 

 

 

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 New York City Department of Education

 

 

Appearances:

Shebitz Berman & Cohen, P.C., attorney for petitioners, Matthew J. Delforte, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel

 

 

DECISION

 

            Petitioners appeal from that part of the decision of an impartial hearing officer which determined that petitioners' son was not entitled to receive home-based speech-language therapy and home-based occupational therapy (OT) services in order to receive a free appropriate public education (FAPE) for the 2004-05 school year.  The appeal must be sustained.

 

            Initially, a procedural matter must be addressed.  Petitioners served the petition one day late.  An untimely petition may be excused for good cause shown and the reasons for the delay are to be set forth in the petition (8 NYCRR 279.13).  Petitioners' attorney affirms that a process server attempted to personally serve respondent during its business hours on April 18, 2005.  Due to vehicle problems, petitioners' process server arrived at 6:15 p.m.  He further affirms that representatives of respondent were present and refused to accept service.  Petitioners' attorney successfully faxed the petition to respondent on April 18, 2005, and included a letter describing the failed attempt at service.  Petitioners effected personal service of the petition and supporting documents upon respondent on the following day.  Since petitioners attempted to effectuate service within the regulatory timeframe and service was refused, I will exercise my discretion and excuse petitioners' one-day delay (Application of a Child with a Disability, Appeal No. 04-084; Application of the Bd. of Educ., Appeal No. 04-085).

   

At the time of the hearing, which began on August 25, 2004, petitioners' son was five years old and attending Shema Kolainu, a nonpublic school approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.  Pursuant to an Order on Pendency dated August 26, 2004, the child continued to attend Shema Kolainu and receive three 30-minute sessions per week of individual speech-language therapy, individual OT and individual physical therapy (PT), and 10 hours per week of home-based special education itinerant teacher (SEIT) services, three hours per week of home-based speech and language therapy, and two hours per week of home-based OT (IHO Order on Pendency, p. 2).

 

The child was diagnosed with autism when he was approximately 30 months old (Tr. pp. 237-41).  The record also reflects diagnoses of pervasive development disorder - not otherwise specified (PDD-NOS) and autism spectrum disorder (Parent Ex. B at pp. 11, 14).  The child received early intervention services through Challenge, an early intervention program, until August 31, 2002 when he began preschool at William O'Connor School (William O'Connor) (Tr. pp. 298-99).  The child completed one year at William O'Connor (Tr. pp. 299-300).  His parents believed that he did not make academic progress at William O’Connor, in part based on a school report, and they placed him at Shema Kolainu for the 2003-04 school year (Tr. pp. 300-02). 

 

For the 2003-04 school year, respondent's Committee on Preschool Special Education (CPSE) recommended classification as a preschool child with a disability (Parent Ex. B at p. 1).  The CPSE recommended a 12-month program in a 6:1+3 special education classroom at Shema Kolainu.  The CPSE also recommended home-based SEIT services for 10 hours per week, speech-language services for three hours per week and OT services for two hours per week (id.).

 

During the 2003-04 school year, the child reportedly had shown improvement in attending to circle activities (Parent Ex. B at p. 3).  He was able to match identified objects and pictures.  The child could imitate some gross motor activities and could complete form board puzzles.  He did not respond to his name and eye contact was fleeting (id.).  The child's August 4, 2003 individualized education program (IEP) did not include standardized testing or evaluative information, but assessed the child's overall cognitive developmental age as one year and seven months according to the developmental observation checklist system (DOCS) (Parent Ex. B at p. 13).  He demonstrated strength in visual discrimination, but his auditory delays inhibited his ability to follow receptive instructions.  He was noted to require intensive special instruction (id.).

 

The IEP indicated that the child was happy and noted that he enjoyed school (Parent Ex. B at p. 4).  He was observed to enjoy praise and attention but his play skills were limited.  He did not interact with peers and became frustrated when routines changed.  His behavior was noted to require highly intensive supervision (id.).  A behavioral intervention plan (BIP) was developed for the 2003-04 school year (Parent Ex. B at p. 29).  Behaviors that interfered with his learning were described as inconsistent eye contact, self-stimulatory behaviors, and an inability to respond without physical prompts.  Suggested behavioral strategies included increasing eye contact through reinforcement, increasing independence by slowly fading prompts and reinforcement, and substitution of acceptable behaviors to replace self-stimulatory behaviors.  The BIP recommended staff trained in ABA to support the plan.  The child was also assessed in the area of socialization according to the DOCS (Parent Ex. B at p. 10).  The child was nearly four years old, but his developmental age was assessed at one year and eight months (id.).

 

The IEP also indicated that the child displayed significant delays in speech and language development (Parent Ex. B at p. 5).  The child communicated through directing adults to items, pointing and crying.  The child was unable to receptively identify items (id.).  The child responded to his name by turning his head or establishing eye contact (Parent Ex. B at p. 6).  He could follow one-step directions and identify objects given physical cues (id.). 

 

The IEP stated that in the area of fine motor skill, the child could paint and scribble briefly but was unable to color within boundaries (Parent Ex. B at p. 7).  He could complete pegboards and sort shapes but was unable to manipulate scissors (id.).  He was described as having a poor attention span and awareness of safety and as significantly delayed in fine motor, visual motor, visual perception, self-help, motor planning and sensory processing skills (Parent Ex. B at p. 8).  It was noted that the child did not need assistive technology nor did he have any mobility limitations; he wore orthotics to correct toe walking and he could catch a large ball but could not throw (Parent Ex. B at pp. 9, 11).   He required assistance when climbing but he reportedly could run and jump (Parent Ex. B at p. 9).  He demonstrated delays in the acquisition of gross motor skills scattered in the 18- to 30-months’ range, which represented a 34 to 60 percent delay (Parent Ex. B at pp. 11-12).  The IEP also indicated that the child demonstrated low muscle tone and decreased strength (Parent Ex. B at p. 12).  The child reportedly was not toilet trained (Parent Ex. B at p. 19).  He could finger feed and drink from a cup through a straw but required assistance in dressing (id.).

 

According to a progress report from Shema Kolainu dated March 8, 2004, the child was described as having made much progress and as eager to learn (Dist. Ex. 5).  During the 2003-04 school year, the child's annual goals addressed following one-step directions, maintaining eye contact, sitting still, pointing to body parts, sequencing,   sorting pictures, requesting items, independent toileting and attending to his name from a distance (id.).

 

On May 12, 2004, a psychoeducational evaluation was conducted which included a review of the child's records, a classroom observation and teacher interviews (Dist. Ex. 4 at p. 1).  The Vineland Adaptive Behavior Scales-Classroom Edition was administered and the Kaufman Survey of Early Academic and Language Skills (K-SEALS) was attempted but not successfully completed.

 

The evaluator noted that previous testing had been completed on May 23, 2002, and the child had been described at that time as making minimal eye contact, facial expressions and gestures (Dist. Ex. 4 at p. 2).  The previous test results indicated that the child did not respond to sounds and did not focus on tasks presented.  He was described as exhibiting behaviors typical of autistic children such as avoidance of eye contact, eating only specific foods, walking on his toes and hand flapping. On the Vineland Adaptive Behavior Scales, his standard score was in the low adaptive level in all domains (id.).

 

For the May 12, 2004 evaluation the child was observed at a park and in his classroom (Dist. Ex. 4 at p. 2).  The child reportedly did not interact with other children in the park but he did play on equipment appropriately.  He turned to the teacher when his name was called (id.).  In the classroom, the child was observed to have no interaction with his classmates (Dist. Ex. 4 at p. 3).  The child was observed playing with blocks, looking at books and in a coloring activity.  During the block play, the child reportedly interlocked the blocks appropriately with minimal prompts from the teacher.  He was observed to self-stimulate at times especially during transition from one activity to another.  During the book activity, the child reportedly turned the pages appropriately but did not focus on the pictures or words.  He was observed to look around or stare into space as he turned the pages.  His motions were reported as robotic.  During the coloring activity, the child was observed to color very darkly applying much force.  He was given prompts by staff to color more appropriately.  During all three activities, the teacher was observed to give the child praise often and intermittently give a food reinforcer (id.). 

 

The evaluator attempted standardized testing but the child was reportedly unresponsive (Dist. Ex. 4 at p. 3).  The evaluator estimated that the child's current level of cognitive functioning was within the deficient range, based upon observations, teacher consultation and progress reports from service providers (Dist. Ex. 4 at p. 4).  The child's current functioning in language, socialization and self-help skills were yielded from an interview with his special education teacher.  The child was described as nonverbal although he was noted to have made progress in controlling his vocalizations (id.).  According to his special education teacher, however, he did not utter intelligible words but communicated basic needs through gestures (Dist. Ex. 4 at p. 5).  The only readiness skill described by his teacher was the child's ability to match.  He did not know colors or shapes and could not rote count.  The child was reported to have demonstrated the ability to follow one-step directions as long as they were familiar.  The child's socialization skills were reportedly very delayed, as he did not interact at all with peers.  During the evaluation, he was inattentive to his social environment and did not respond to peers or adults very readily. The child's self-help skills were described as poor.  He was not yet toilet trained, did not blow his nose, tie his shoes or zip his jacket.  His teacher reported that over the previous month, the child appeared somewhat more aware of his surroundings.  Transitions were reportedly very difficult for the child.  He was described as becoming frustrated and would stiffen his body and refuse to move.  The teacher reported working primarily on establishing and increasing the child's attending skills, establishing and increasing eye contact and establishing and increasing focus (id.).

 

The child's adaptive behavior functioning was assessed using the Vineland Adaptive Behavior Scale-Classroom Edition (Dist. Ex. 4 at p. 6).  The child's classroom teacher was the informant.  The child's overall adaptive behavior composite score of 57 placed him within the low range of functioning.  The child's standard scores across each domain placed him within the low range of functioning for communication (fifth percentile), daily living (fourth percentile), socialization (second percentile), and motor skills (fifth percentile).  The child's receptive and expressive skills were both indicated to be significantly delayed.  It was reported that he did not express any words in school but did utter sounds.

 

Respondent's Committee on Special Education (CSE) convened on May 24, 2004 and determined that the child remained eligible for special education as a student with autism (Dist. Ex. 1; 8 NYCRR 200.1[zz][1]).  For the 2004-05 school year the CSE recommended a classification of autism and a "special class with related services"  (Dist. Ex. 1 at p. 1).  The child's IEP did not include a recommended placement.  The CSE recommended adapted physical education (APE) and special transportation (Dist. Ex. 1 at p. 1).  The CSE also recommended the related services of individual speech-language therapy in a separate location three times per week for 30 minutes each, individual OT in a separate location three times per week for 30 minutes, and individual PT in a separate location three times per week for 30 minutes (Dist. Ex. 1 at p. 9).

 

The 2004-05 IEP described the child's academic needs as presenting with global delays in all areas including cognitive, language, socialization and daily living skills, with an estimated intellectual cognitive functioning within the deficient range (Dist. Ex. 1 at p. 3).  The child was described as nonverbal, but that he had made progress in controlling vocalization.  The IEP went on to state that the child did not utter intelligible words in class; he communicated his needs through gestures and by pulling; he did not demonstrate readiness skills; he did not know colors or shapes; and he did not rote count.  The work being done with him was to increase eye contact, attending skills and focus.  He was described as being able to follow some familiar routine one-step directions, as not testable and in need of a highly structured learning environment.  The IEP stated that the child required a consistently implemented behavior modification program (id.).

 

The IEP also described the child's socialization skills as very delayed (Dist. Ex. 1 at p. 4).   The IEP stated that the child did not interact with peers in any way and he stayed by himself.  He was not attentive to his social environment; and he was not responsive to peers or adults unless a strong reinforcer was used to motivate him.  It was stated that at times he would touch another child but this was the extent of his interaction.  His self-help skills were described as poor and he was not yet toilet trained.  It was reported that the child's overall adaptive behavior was in the deficient range and transitions were very difficult for him.  The IEP stated that the child needed a nurturing environment, to provide consistent positive reinforcement for appropriate behaviors.  The CSE recommended implementing a consistent behavior management program in the classroom.

 

Under physical present levels of performance, the IEP described the child as presenting with decreased muscle strength, decreased balance and decreased coordination (Dist. Ex. 1 at p. 5).  The IEP went on to state that the child exhibited motor planning difficulties and deficits in sensory processing.  He reportedly sometimes toe-walked and he could negotiate up to five steps with a reciprocal step pattern and walk down steps using a step-to-step pattern.  His gross and fine motor skills were reportedly delayed.  The CSE recommended APE and adapted PT in a 6:1+1 student-to-staff ratio (id.).  The CSE also recommended a BIP to address establishing and sustaining eye contact, the need for strong reinforcement to get a response from the child, and self-stimulatory behaviors (Dist. Ex. 1 at p. 11).

 

Petitioners were not in agreement with the IEP recommended by respondent's CSE on May 24, 2004 (Dist. Ex. 3).  They requested that their son remain at Shema Kolainu for another year in a 6:1+3 special education classroom.  Petitioners also requested that the home-based services continue with an ABA therapist. 

 

On June 15, 2004, respondent's CSE notified the parents via a C-10 Final Notice of Recommendation of its recommended placement at P771@329 in a 6:1+1 special education classroom (Dist. Ex. 2).  By letter dated June 28, 2004, petitioners requested an impartial hearing (Parent Ex. A).  In their request, petitioners sought an order requiring respondent to place their son at Shema Kolainu for the 2004-05 school year, 10 hours of home-based ABA services, three hours of home-based speech-language therapy, two hours of home-based OT, and an order that the child remain at Shema Kolainu as the child's pendency placement (id.).  On July 2, 2004, respondent received a copy of the C-10 Final Notice of Recommendation originally dated June 15, 2004 (Dist. Ex. 2), with a hand-written note from the parent stating:  "Please be advised that I observed the above recommended site.  It is inappropriate.  I have requested an impartial hearing in order to have my son placed at Shema Kolainu" (Dist. Ex. 7).

 

The impartial hearing began on August 25, 2004.  Testimony was heard for six days and concluded on January 13, 2005.  Both petitioners testified at the impartial hearing and they presented testimony of the ABA program coordinator, the education director of Shema Kolainu, the speech and language pathologist, and two occupational therapists providing services for the child.  Respondent presented the testimony of the unit coordinator at P771.  The impartial hearing officer rendered her decision on March 7, 2005, finding respondent did not offer petitioners' son a FAPE because it failed to recommend a complete program on the May 24, 2004 IEP in that it did not 1) specify a class size (8 NYCRR 200.4[d][2][iv]); 2) provide a 12-month program when the parties agreed he needed one; 3) provide APE; and 4) provide parent training (8 NYCRR 200.13[d]) (IHO Decision, p. 17).  The impartial hearing officer found that respondent failed to prove the appropriateness of the 6:1+1 program it recommended (IHO Decision, p. 18).  The impartial hearing officer further found that respondent had met its burden of proving that the home-based speech-language therapy and home-based OT were not necessary for the child to receive a FAPE, but found that the home-based ABA services were required for the child to receive a FAPE (IHO Decision, pp. 18-19).  She remanded the matter to respondent’s CSE for an appropriate program and placement recommendation (IHO Decision, p. 19).

 

In this appeal, petitioners allege that their son requires home-based speech-language therapy and home-based OT in order to receive a FAPE.  Since neither party appeals from those parts of the impartial hearing officer's decision, which found respondent failed to offer petitioners' son a FAPE by failing to 1) recommend a complete program on the IEP; 2) provide a 12-month program; 3) provide APE; 4) provide parent training; 5) prove the appropriateness of the recommended 6:1+1 placement; and which further found that home-based ABA services were required for the child to receive a FAPE (see Answer, p. 14), I do not review them (20 U.S.C. § 1415[i][1][A]; N.Y. Educ. Law § 4404[1]; 34 C.F.R. § 300.510; 8 NYCRR 200.5[i][4][ii]).  The sole issue in this appeal is whether petitioners' son requires home-based speech-language therapy and home-based OT in order to receive a FAPE.

 

The purpose behind the Individuals with Disabilities Education Act (IDEA)1 (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  The board of education bears the burden of demonstrating the appropriateness of the 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 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

 

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

An appropriate educational 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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

 

Petitioners contend that the impartial hearing officer erred in finding that home-based speech-language therapy and home-based OT were not required for their child to receive a FAPE.  In her decision, the impartial hearing officer found that the home-based speech-language therapy and OT were not appropriate, but found that the home-based ABA was appropriate, and she remanded the matter to the CSE to consider the extent the child needed to continue home-based ABA, since the child's need for a substantial amount of 1:1 attention and instruction cannot be met in a 6:1+1 program (IHO Decision, pp. 18-19).  She also determined that the CSE should consider a more restrictive program such as a more intense staffing ratio, a nonpublic school, a 1:1 teaching assistant, or a 1:1 aide (IHO Decision, p. 19).  She ordered the CSE to reconvene to make new program and placement recommendations and to also consider the appropriate level of home-based ABA services (IHO Decision, p. 19).

 

The impartial hearing officer predicated her determination that the home-based speech-language therapy and OT were inappropriate on her finding that the speech-language provider and OT provider were working independently, setting their own goals and using their own methodologies.  She stated that the lack of coordination between the home-based and in-school therapists led her to find that the home-based speech-language and OT services were neither necessary nor appropriate as part of the child's educational program (IHO Decision, p. 18).

 

The record reflects that the child's home-based speech-language provider met with the in-school provider and had exchanged ideas and discussed the kind of progress each had seen so that they could coordinate addressing the same goals (Tr. p. 189).  The home-based speech-language provider further testified that she and the in-school speech-language provider employed different instruction styles but they did in fact work on the same goals (Tr. p. 190).  She indicated that she used a play-based methodology in the home, while the in-school provider used a more structured approach (Tr. p. 192).  The home based speech-language provider further testified that she and the in-school provider would contact each other when they observed any great gains, regressions or made any observations one of them felt needed to be communicated to the other (Tr. p. 190).  She also stated in testimony that she had recently visited the child's school and had spoken with the supervisor of related services and had observed the child in his classroom (Tr. p. 189).  She testified that she is working on play skills, initiation of play and activity, turn taking and improving his attending to activities (Tr. p. 177).  She reported progress by the child in vocalizations by using sound to express his wants or needs (Tr. p. 179).  She also testified that the child is beginning to use approximately five words independently but does so inconsistently (Tr. p. 179).  The home-based speech-language provider also testified that the child is beginning to respond to directions and commands and that she had noticed a lot of increased interaction, increased appropriate play and increased lengths of attention to an activity, which was important to his language development (Tr. p. 180).  The home-based speech-language provider opined that the three hours of therapy at home are necessary because they are highly intensified and individualized (Tr. p. 183).  She further testified that she is able to educate the parents so that they can integrate those techniques into his daily living activities (Tr. pp. 183-84).  She testified that she develops programming specific to visual and verbal prompts and sequences that will be used in the home (Tr. p. 184).  Finally, she attributed the child's progress to the fact that services are provided in a home setting and the child is ready and open to learn and participate because he is familiar with the activities and she can work directly with the parents to develop activities  (Tr. p. 194). 

 

The child's home-based OT provider testified that she had communicated with the child's in-school provider to discuss therapy and she believed that she and the in-school provider were in agreement relative to the child's OT needs and services (Tr. pp. 233-34).  She testified that she sees the child once a week for 60 minutes at the Brooklyn Community Management facility which is an outpatient facility serving children and adults with disabilities and needs for related services (Tr. p. 217).  During her sessions with the child, she focuses on improving fine motor skills, coordination, visual motor skills and perceptual skills (Tr. p. 218).  She also works on increasing general muscle strength of his hands and fingers and upper extremities (id.).  She further testified that the child has shown improved sensory regulatory behaviors as demonstrated by his improved attention span and his decreased frequency of covering his ears (Tr. p. 220).  She stated that the goal in her OT sessions is to improve the child's level of independent functioning at home and at school (Tr. p. 221).  The child's OT provider for aquatic therapy testified that she is working on increasing the child's attention span, his bilateral integration, his bilateral coordination, listening skills, his ability to follow commands and his gross motor skills (Tr. p. 244).  She testified that she has noticed progress in strengthening and listening, in eye contact, and in his following commands (Tr. p. 245).

 

Testimony also showed that a communication log was used to facilitate dialog between each home-based provider and their counterpart in-school provider (Tr. pp. 105-06).  The director of education at Shema Kolainu testified that the child was working on auditory and visual discrimination-type programs and appropriate toy play (Tr. p. 146).  She described the child as an early learner without a lot of language but with some communicative intent in making his needs known (Tr. p. 143).  She further described him as fairly cooperative, following some basic directions.  His social skills were observed to be emerging.  He was noted to show more interest in his peers than during the previous year (id.).

 

The record supports petitioners' contention that the child needs home-based support in the areas of speech-language therapy and OT in order to receive educational benefit.  The record reflects that there was adequate communication between the home-based and in-school service providers.  Direct communication between providers was supplemented by the child's mother, who served as a conduit of information between the providers, and by the communication log used by the providers.  Although the impartial hearing officer determined that the different instructional approaches used by the separate providers did not support the continuity that the child needed, I find that the record reflects that the child received direct one-to-one instruction focusing on extremely similar goals in both settings.  The child's difficulties with transition and his need for repetitive learning support the need for home-based services to enable the child to make progress during the in-school portion of his program.  I, therefore, find that the impartial hearing officer erred in terminating the home-based speech-language therapy and home-based OT services.

 

            THE APPEAL IS SUSTAINED.

 

            IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent it found that the child did not require three hours per week of home-based speech-language therapy and two hours per week of home-based occupational therapy in order to receive a FAPE during the 2004-05 school year.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

July 27, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. Petitioners initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.