The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-058

   

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 

Appearances:

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

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

 

DECISION

            Petitioners appeal from those parts of the decision of an impartial hearing officer which denied their request to be reimbursed for the cost of supplemental applied behavioral analysis (ABA) instruction, supervisory services and special education itinerant teacher (SEIT) services for their daughter during the time period of November 7, 2005 through November 6, 2006.  In addition, petitioners appeal from the impartial hearing officer's reduction of the rate of reimbursement for the related services that they obtained privately.  The appeal must be sustained in part.

            At the outset, I must address two procedural issues.  Respondent has attached the 2006-07 rate schedule for Independent Providers of Related Services for New York City Preschool Students, as well as a July 12, 2006 decision of a different impartial hearing officer in a separate, unrelated case, to the Answer.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of the Board of Educ., Appeal No. 06-036; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  In their Reply, petitioners object to the submission of the additional evidence.  I note that the rate schedule was available at the time of the impartial hearing, and respondent had an opportunity to offer it at that time for consideration by the impartial hearing officer.  Therefore, I decline to accept it into evidence.  With regard to the second exhibit attached to respondent's Answer, I note that although the July 12, 2006 impartial hearing officer's decision was created after the impartial hearing, I will accept it to the extent that it supports respondent's legal argument.  I note that the July 12, 2006 decision is currently pending on appeal. 

Second, by letter dated July 27, 2006, respondent submitted a Reply to petitioners' Reply.  Inasmuch as there is no legal authority for respondent's submission, I decline to consider respondent's letter (Application of a Child with a Disability, Appeal No. 06-046).

            At the time of the impartial hearing in February 2006, the child was three years old and attending First Friends Preschool (First Friends) for four hours a week, where she received four hours of SEIT services (Tr. pp. 9, 11-12).  The child also received ABA, speech and occupational therapy services through the McCarton Center for Developmental Pediatrics (McCarton Center) (Tr. p. 183).  She also received feeding therapy from a private speech-language therapist (Tr. p. 10; Parent Ex. Z).  The child is classified as a preschool student with a disability and her eligibility for services is not in dispute (see 8 NYCRR 200.1[mm]; Parent Ex. Y-a at p. 1).  The child has a history of food allergies and feeding difficulties.  She exhibits a significant delay in cognitive functioning (Parent Ex. O at pp. 4, 8).  The child has been diagnosed with hypotonia, expressive and receptive language deficits, a feeding disorder, and fine motor and gross motor deficits (Parent Ex. O at p. 7).  The child reportedly has oral apraxia (Tr. pp. 209, 211-12).  The child’s play skills and social skills are delayed (Parent Ex. F at p. 9).

In early 2003, when the child was 12 months old and residing with her family in Connecticut, petitioners initially noticed delays in her development (Parent Ex. S at p. 1; Parent Ex. F at p. 12).  In April 2003, petitioners requested an evaluation of the child through Connecticut's Birth to Three Program, due to their concerns regarding her adaptive functioning and motor skills (Parent Ex. S at p. 1).  Based on the results of standardized testing, parent report, and informal observations of the child, the evaluators determined that her personal/social skills, adaptive skills, gross and fine motor skills, communication skills, and cognitive skills were all below age level (see Parent Ex. S at pp. 2-3).  In May 2003, the child began receiving early intervention services (Parent Exs. R at p. 1; S at p. 3) one time per week (Parent Exs. Q, T) from a special education teacher (Parent Exs. T at p. 1; O at p. 1).

Subsequent evaluations revealed that the child had an oral aversion to solid foods (Parent Exs. P, V, U).  Feeding difficulties due to reduced strength, stability, dissociation and grading of the oral musculature were also observed (Parent Ex. V at p. 1; see also Parent Ex. P).  The child also exhibited difficulty processing sensory information (Parent Ex. V at p. 1), and a gross motor delay (Parent Ex. U at p. 2).  The child's pediatrician concurred with an evaluating physical therapist, who recommended a further evaluation by a developmental pediatrician (Parent Ex. U at p. 2).  A six-month progress assessment completed in December 2003 indicated that the child continued to demonstrate deficits in all areas of development (Parent Ex. T at pp. 2, 3).

            In January 2004, petitioners sought and obtained neurodevelopmental and psychological evaluations from the McCarton Center, located in Manhattan (Parent Ex. O).  Administration of the Bayley Scales of Infant Development, Second Edition revealed that the child's cognitive skills were well below the range expected for her age (Mental Scale <50) and that her motor skills were mildly delayed (Motor Scale: 73) (Parent Ex. O at p. 6).  The evaluators noted that the child's expressive and receptive language skills were delayed and further reported that she was not yet talking (id.).  The child's overall adaptive behavior skills, as assessed by maternal report using the Vineland Adaptive Behavior Scale, were in the low range (Parent Ex. O at p. 6).  The child was diagnosed with hypotonia, expressive and receptive language deficits, a feeding disorder, and fine motor and gross motor deficits (Parent Ex. O at p. 7). The evaluators concluded that the child required a 12-month program, including 60-minute sessions of speech-language therapy five times per week, including oral-motor therapy, which incorporated Prompts for Restructuring Oral Muscular Phonetic Targets (PROMPT) therapy, which is a tactile kinetic method of sensory-motor cueing and facilitation of sound production (Tr. p. 97; see Parent Ex. E at p. 4) and feeding therapy (Parent Ex. O. at p. 6).  In addition, it was recommended that the child receive five 60-minute sessions of individual occupational therapy per week, three 60-minute sessions of individual physical therapy per week, and five 60-minute sessions of individual special education for expansion of play skills and cognitive learning (Parent Ex. O at pp. 6-7).

Petitioner father indicated that the child's services in Connecticut were inadequate (see Tr. p. 215).  In February 2004, the family moved to New York (Parent Ex. F at pp. 12, 21, 24; see also Tr. p. 215).  Petitioners contacted an Early Intervention (EI) program, but found it disorganized, and decided against pursuing services through the program (Tr. pp. 215-16).  Beginning in March 2004, the child began receiving ABA instruction, speech-language therapy, feeding therapy, occupational therapy and physical therapy services privately through the McCarton Center (Parent Ex. F at p. 19). 

Over the next year, the child continued to exhibit significant delays in the areas of oral motor and feeding skills, due in part to underlying medical problems and food allergies (Parent Ex. H at pp. 1-2; Parent Ex. J at pp. 1-2; see also Parent Ex. L).  In addition, she exhibited an abnormal gait and was recommended for orthotics (Tr. p. 210).

            As of July 2005, the child was receiving individual speech-language therapy five times per week for 45 minutes, individual ABA instruction six times per week for 60 minutes and individual occupational therapy three times per week for 45 minutes (Parent Ex. H at p. 1).  In July 2005, the child's speech-language therapist from the McCarton Center conducted an evaluation (Parent Ex. H).  Based on standardized test results and her observations of the child, she concluded that the child had a mild receptive language delay (Parent Ex. H at p. 5) and that her expressive language was severely disordered due to oral and speech dyspraxia (Parent Ex. H at p. 8).  The child's therapist noted that the child had difficulty maintaining eye contact and that her peer relations were extremely limited (Parent Ex. H at p. 6).  The child communicated through use of a limited number of words, use of the Picture Exchange Communication System (PECS), and pointing (Parent Ex. H at pp. 7-8).  The therapist recommended that the child continue to receive individual speech language therapy five times per week for 45 minutes to address her language, feeding, and oral motor needs (Parent Ex. H at p. 8).

            In August 2005, petitioners referred the child to respondent's Committee on Pre-School Special Education (CPSE) (Parent Ex. F at p. 19).  Consequently, in August 2005, she underwent a series of evaluations, as part of the assessment conducted by Functional Life Achievement, Inc. (FLA), to determine if the child was eligible for services through the CPSE (Parent Ex. F; Tr. p. 217).  The evaluations, which took place on four dates in August 2005, measured the child's cognitive and adaptive skills, social skills, and her motor development, in addition to her language and communication skills (Parent Ex. F).  Administration of the Stanford Binet Intelligence Scale, Fifth Edition yielded a full scale IQ score of 71, nonverbal IQ score of 69, and a verbal IQ score of 76, which placed the child in the borderline delayed range of cognitive functioning (Parent Ex. F at pp. 9, 14).  The child's composite adaptive behavior score on the Vineland Adaptive Behavior Scales, Interview Edition, indicated that she was functioning at the 1.5-year age level (Parent Ex. F at pp. 9-10).  Administration of the Peabody Developmental Motor Scale - Second Edition (PDMS-2) revealed that with regard to the child's fine motor skills, she was functioning at the 15-24 month age level, and that she was functioning at the 14-18 month age level in the area of gross motor skills (Parent Ex. F at pp. 9-10).  The child's performance on the Sensory Profile was indicative of a child with sensory modulation difficulties (Parent Ex. F at p. 35).  On the Preschool Language Scale-3 (PLS-3), she earned a standard score of 96 in auditory comprehension and a standard score of 76 in expressive communication, resulting in a total language score of 85 (Parent Ex. F at p. 37).  This test revealed that, while the child's receptive language skills were age-appropriate, her expressive language was delayed (Parent Ex. F at p. 38).  Her self-help skills were also delayed (Parent Ex. F at pp. 16-17, 25, 32).  Delays were also observed in the area of social/emotional development (Parent Ex. F at pp. 17, 25, 32).

            An occupational therapy evaluation conducted on August 17, 2005 by the child's occupational therapist from the McCarton Center yielded results similar to the FLA evaluation (compare Parent Ex. G with Parent Ex. F at pp. 31-35).  The evaluator concluded that the child possessed poor gross and fine motor skills (Parent Ex. G. at p. 5).  Although she recognized improvements in the child's tactile and auditory processing, the evaluator recommended that the child continue with occupational therapy three times per week for 60-minute sessions (id.).

On September 9, 2005, FLA forwarded its assessment to petitioners and to respondent's CPSE (Parent Ex. F at p. 1).  On October 20, 2005, respondent's CPSE met for the child's initial CPSE review (Parent Ex. Y-a at pp. 1, 2).  Results of the FLA evaluation were reflected in the child's present levels of performance (Parent Ex. Y-a at pp. 3-7).  The CPSE recommended that the child be classified as a preschool student with a disability and that she receive SEIT services for ten hours per week (Tr. pp. 24-25; Parent Ex. Y-a).  Although respondent and the impartial hearing officer both referenced a board of education approval and authorization letter which reportedly indicated that SEIT services were to be provided to the child at First Friends (Answer 58; IHO Decision, p. 3), the CPSE's final notice of recommendation (Parent Ex. Y) does not indicate a location for the recommended SEIT services.  In addition to SEIT services, the CPSE recommended that the child receive the following related services:  two 45-minute sessions of individual occupational therapy per week, two 45-minute sessions of individual physical therapy per week, and four 45-minute sessions of individual speech-language therapy per week (Parent Ex. Y-a at p. 17).  The individualized education program (IEP) developed as a result of this meeting, which is the IEP at issue in the instant matter, contained goals and objectives targeting improvement in the child's cognitive development, self-help skills, gross and fine motor skills, social/emotional skills, oral sensory/motor/feeding skills, speech intelligibility, sensory processing, and motor planning (Parent Ex. Y-a at pp. 8-14).  The CPSE recommended a 12-month program for the child, also known as an extended school year (ESY) (Parent Ex. Y-a at p. 1).

            By letter dated October 26, 2005, petitioners notified the CPSE Chairperson that although they agreed to the physical therapy component of the October 2005 IEP, they rejected the balance of the proposed program, having concluded that it was inadequate to meet their child's needs (Parent Ex. I; Tr. pp. 222-23, 260-61).  Petitioners notified the CPSE Chairperson that they would be seeking, among other things, tuition reimbursement for First Friends, SEIT support at First Friends from the McCarton Center, speech-language therapy provided by the McCarton Center, feeding therapy, occupational therapy and ABA instruction (Parent Ex. I).  Petitioners did not specify the level of services that they felt would be adequate to address their daughter's needs nor did they specify the frequency or duration of services for which they were seeking tuition reimbursement (id.).

            By letter dated November 10, 2005, through their attorney, petitioners requested an impartial hearing (Parent Ex. A).  Although the letter indicated that petitioners had put respondent on notice that they intended to secure a number of appropriate interventions and services for the child, and had in fact done so, the letter did not specify the type or level of services sought by petitioners.

             In January 2006, the child's service providers at the McCarton Center generated a series of progress reports (Parent Exs. B, C, D, E).  A January 17, 2006 ABA Programming and Progress Report stated that, despite having mastered many skills, the child continued to exhibit difficulties in responding to external directions and continued to exhibit delays in play, social interaction, adaptive behaviors, motor planning, and communication (Parent Ex. D at p. 3).  The child's ABA instructor noted that since she began working with her, the child had become better able to tolerate other children in her environment (Tr. p. 143).  She also noted development in the child's expressive language (id.).  The ABA instructor concluded that the child required structured one-to-one situations to learn, with continuous interaction and a high rate of positive reinforcement, redirection as well as adult prompting in order to stay on task (Parent Ex. D at p. 3).  She also opined that the child would benefit from further instruction in ABA, targeting play skills, expressive language, social skills and overall language development, and recommended 25-30 hours of ABA instruction per week (id.).

            In a January 17, 2006 addendum to her July 2005 speech-language report, the child's speech-language therapist noted strengths in the child's receptive language skills, as well as her willingness and desire to communicate (Parent Ex. E at p. 6; Tr. p. 91).  She indicated, however, that due to a severe oral and speech dyspraxia, the child's expressive language remained severely disordered (Parent Ex. E at p. 6).  Although the child's speech sound production remained limited, the therapist reported that, since July 2005, the child had doubled the number of phonemes she was able to produce (Parent Ex. E at pp. 3-4).  The therapist described the child's peer relations as "extremely limited" and her play as "self-directed and ritualistic" (Parent Ex. E at p. 4).  With regard to feeding, the therapist reported that the child had made significant progress and was initiating spontaneous feeding and exhibiting a desire to explore different foods (Parent Ex. E at p. 5).  The child no longer used PECS and was characterized as a verbal child, able to request and comment independently (id.).  The therapist recommended five 45-minute sessions of individual speech-language therapy per week and five 60-minute sessions of feeding therapy per week (Parent Ex. E at p. 6).  The therapist's observations and recommendations were consistent with those of the speech-language therapist that provided oral motor/feeding therapy to the child (Parent Ex. C).

            A January 18, 2006 occupational therapy progress report from the McCarton Center indicated that since August 2005, the child's gross motor skills had improved, and she had made significant progress in fine motor skills and sensory regulation and integration (Parent Ex. B at pp. 1-2).  However, the evaluator explained that the child's gross and fine motor skills, motor planning and muscular strength required further development in order to provide the foundation for successful performance in her school and home environments (Parent Ex. B at p. 2).  She recommended three 45-minute individual sessions of occupational therapy for the child (id.).

An impartial hearing convened on February 7, 2006 and concluded on February 21, 2006, after two days of testimony.  At the impartial hearing, petitioners argued that, given the October 2005 IEP's procedural and substantive deficiencies, the child was denied a free appropriate public education (FAPE).  In addition to testimony from the CPSE Chairperson, who represented respondent at the impartial hearing, the impartial hearing consisted of petitioners' witnesses and exhibits regarding the appropriateness of the special educational services selected by petitioners.  The record also indicates that respondent's cross-examination of petitioners' witnesses did not involve a challenge to the appropriateness of the privately obtained services.

            By decision dated May 1, 2006 and corrected decision dated May 16, 2006, the impartial hearing officer found that petitioners prevailed with regard to prong one of the Burlington/Carter test (IHO Decision 5/16/06, p. 12).  With regard to prong two of the Burlington/Carter test, she held that most of the services obtained by petitioners were appropriate and granted reimbursement for petitioners' claims for feeding therapy, occupational therapy, and speech-language therapy (IHO Decision 5/16/06, p. 13).  The impartial hearing officer also awarded tuition reimbursement to petitioners for First Friends for four hours per week (IHO Decision 5/16/06, p. 12).  Nevertheless, she denied petitioners' request for supervisory services and additional ABA services outside of First Friends, holding that there was insufficient evidence to warrant the provision of such services (IHO Decision 5/16/06, pp. 13-14).  She also denied petitioners' claim for privately obtained SEIT services, finding that respondent offered ten hours of SEIT services to petitioners, which was six more hours than petitioners were providing (IHO Decision 5/16/06, p. 12).  The impartial hearing officer also determined that petitioners failed to produce any evidence of their efforts to obtain respondent-approved SEIT services (id.).  Although she found that the child was entitled to respondent-approved SEIT services, and stated in the body of her decision that respondent shall provide a related service authorization for a SEIT services, the impartial hearing officer failed to order respondent to do so.  Lastly, although she awarded reimbursement for petitioners' claims with respect to occupational therapy, speech-language therapy and feeding therapy, the impartial hearing officer declined to award fees in excess of $100.00 for occupational therapy and speech-language therapy (IHO Decision 5/16/06, p. 13).  She also ordered reimbursement for feeding therapy for three sessions per week at a reduced rate of $150.00 per hour (IHO Decision 5/16/06, p. 14).  The impartial hearing officer opined that the rates for providers at the McCarton Center were greater than those of average individual providers, and further noted that, petitioners failed to produce evidence of any efforts to locate respondent-approved providers (IHO Decision 5/16/06, p. 13).

            On appeal, petitioners seek reimbursement for home-based supplemental ABA instruction and supervisory services for the period of November 7, 2005 through November 6, 2006.  With respect to the award for feeding therapy, petitioners argue that the impartial hearing officer failed to take into account the request for an increase in services as outlined in their post-hearing submissions.  They also seek reimbursement for SEIT services for the period of November 5, 2005 through November 6, 2006.  With regard to the impartial hearing officer's award of reimbursement for occupational therapy and speech-language therapy, petitioners assert that she improperly and arbitrarily reduced the actual rates charged to petitioners and seek review of the lower rate that was awarded.  Lastly, they assert that the impartial hearing officer erred to the extent that she failed to consider that the child is expected to attend First Friends for more hours at a greater cost.  Respondent requests that the Petition be dismissed in its entirety.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482)1 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (Frank G. v. Bd. of Educ., ___ F.3d ___, ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]; Schaffer v. Weast, 126 S. Ct. 528 [2005]; see Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 [1982]; 20 U.S.C. 1400[d][1][A]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. 1401[9][D]; 20 U.S.C. 1414[d]).2  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]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

A board of education may be required to reimburse parents for their expenditures for private 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]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. 1412 [a][10][C][ii]).

As noted above, the impartial hearing officer found that petitioners prevailed with respect to the first criterion of the Burlington/Carter test.  Respondent does not appeal this determination.  An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. 300.510[a]; 8 NYCRR 200.5[k]).  Consequently, this part of the decision is final and binding and I do not reach the issue of the propriety of that determination (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).

With respect to the second criterion of Burlington/Carter, petitioners rejected respondents' proposed services as inadequate and requested tuition reimbursement (Parent Exs. I, A).  Although petitioners specified the type of services for which they were seeking reimbursement, I note that they did not specify the frequency or duration of those services nor did they indicate the level of services necessary to address their daughter's needs adequately (Parent Ex. I).  The record reveals that in November 2005, the child was receiving the following services from the McCarton Center:  SEIT services four hours per week, ABA instruction 4.5 hours per week, speech therapy 3.75 hours per week, and occupational therapy 2.25 hours per week (Parent Ex. W; Tr. pp. 225-29).  In addition, she was receiving feeding therapy from a private speech-language therapist 2.75 hours per week (Parent Ex. W; Tr. p. 102).  The child's SEIT services were delivered at First Friends School, a general education nursery school (Tr. p. 11).  Her daily schedule reflects the special education and related services obtained by petitioners (Parent Ex. W).  Petitioners' requests for reimbursement also included supervisory services in addition to parent training and counseling, however, levels of these services were not reflected on the child's weekly schedule (Parent Exs. W, Z).

The record indicates that the services obtained by petitioners addressed the child's identified needs (Tr. pp. 75, 77-80, 82-83, 115, 117, 123-24, 170, 174-76, 181; see also Parent Exs. F, G, H).  Further, as noted above, respondent presented no evidence challenging the appropriateness of the services, although it had the opportunity to do so (8 NYCRR 200.5[j][3][xii]).  With respect to SEIT services, the child's classroom teacher at First Friends testified that she had benefited from attending First Friends with the support of a SEIT (Tr. pp. 153-55; see also Tr. pp. 120-21).  Specifically, the teacher noted that, since September 2005, the child's ability to initiate play had increased (Tr. p. 155).  She also stated that the child's ability to use language for social interactions and make choices had improved (id.).  The child's SEIT opined that her attendance at First Friends was appropriate and gave her an opportunity to interact with typically developing children (Tr. p. 118).  The child's attendance at First Friends also allowed her to generalize skills learned at the McCarton Center (id.).  Although she initially had difficulty transitioning to First Friends, as the year progressed, the child was able to sit with the group during story or circle time (see Tr. p. 143).  Moreover, with a lot of support, she could engage in parallel play (Tr. pp. 120-21).  The record indicates that ABA instruction allowed the child to learn more complex skills by breaking the skills into small steps and presenting them in sequence (Tr. pp. 174, 191-92).  The record also reveals that ABA methodology was employed to teach play skills (Tr. pp. 124-25, 145, 191), socialization (Tr. pp. 127, 174), and self-help skills (Tr. p. 145).

The record also demonstrates that the child benefited from the levels of speech-language therapy and feeding therapy that she received.  Specifically, the child’s speech-language therapist reported that the child’s expressive language skills had improved and that she was able to communicate verbally, without the use of PECS (Tr. pp. 89, 91-93; Parent Ex. E).  Two of the child’s speech-language therapists reported that the child’s oral motor skills had improved (Tr. p. 93-94; Parent Exs. C, E).  The child’s feeding therapist reported that the child had made progress in her ability to eat and drink (Parent Ex. C), and that her speech production had improved (Tr. pp. 104-05).

With respect to occupational therapy, the record indicates that the child had made “tremendous gains across the board” (Tr. p. 75; see Parent Ex. B).  Her occupational therapist noted improvement in the child’s ability to climb and descend steps (Tr. p. 77), tolerate sensory activities (Tr. pp. 78-79) and grasp utensils (Tr. p. 79).  Respondent did not contest the providers’ assertions relative to the child’s progress.  Based on the foregoing, I agree with the impartial hearing officer's conclusion that most of the services obtained by petitioners were appropriate to meet the child's special education needs.

Despite finding that most of the services obtained by petitioners from the McCarton Center were appropriate, the impartial hearing officer found that there was insufficient evidence to support the petitioners' request for ABA instruction outside of school.  Accordingly, she denied petitioners' claim for reimbursement for supplemental ABA instruction outside of First Friends.  The record reflects that the CPSE recommended that the child receive ten hours of special education instruction in the form of SEIT services.  The McCarton Center provided the child with a total of 7.5 to 8.0 hours per week of special education instruction, some of the instruction in the form of SEIT services provided at the child's nursery school and some of it in the form of ABA services provided at the McCarton Center.  The record indicates that the child benefited from both forms of instruction.  Although petitioners distinguish between SEIT and ABA instruction, the ABA services were essentially SEIT services provided at a different location employing a specific methodology.  The ABA instruction combined with the SEIT services secured by the parent did not exceed the amount of special education instruction recommended by the CPSE.  Accordingly, I conclude that the record offers a basis for the finding that the level of ABA instruction delivered to the child is appropriate.

The impartial hearing officer also found that petitioners did not present sufficient evidence to establish the appropriateness of the provision of supervisory services.  I concur.  Petitioners do not state the amount of supervisory services that they deem necessary, nor do they explain why the child's ABA instructor, who is a supervisor at the McCarton Center, requires additional supervision (Tr. p.137). 

With regard to feeding therapy, petitioners assert that the impartial hearing officer erred to the extent that she failed to account for the increase in the level of services as detailed in their post-hearing submissions.  The record indicates that the child's feeding therapist found that the child benefited from the amount of therapy that she was receiving at the time of the impartial hearing (Tr. p. 106).  Further, an independent reading of the record reveals that, in closing argument, counsel for petitioners asserted that the child was receiving an appropriate level of services, which includes feeding therapy (Tr. pp. 267-68).  I also note that petitioners did not specify the date that an increased level of feeding therapy should commence.  In light of the foregoing, I find that there is sufficient basis in the record to support the impartial hearing officer's determination with regard to feeding therapy.

Accordingly, based upon my review of the impartial hearing record, I concur with the impartial hearing officer's findings with respect to the second criterion of the Burlington/Carter test.

 

With respect to prong three of the Burlington/Carter test, the impartial hearing officer noted that equitable considerations generally favored petitioners (IHO Decision 5/16/06, p. 12).  However, she opined that it was clear that petitioners wanted respondent to provide the services and placement that petitioners had privately obtained (id.).  Although the impartial hearing officer addressed the equitable considerations concerning reimbursement for the provision of SEIT services, occupational therapy and speech-language therapy under prong two of the Burlington/Carter analysis, I find that these issues are more appropriately raised under prong three, which is whether or not equitable considerations support petitioners' claims.

 

The final criterion for an award of tuition reimbursement is that petitioners' claim be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 06-004; Application of a Child with a Disability, Appeal No. 04-049).

 

The reasonableness of the cost of services that a parent has obtained is to be considered in determining whether equitable considerations support the parent's claim for tuition reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).  Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 06-004; Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).

 

Petitioners assert that the impartial hearing officer erred to the extent that she denied their claim for reimbursement for SEIT services.  Having concluded that ten hours of SEIT services were offered to the child by respondent, I concur with the impartial hearing officer's determination for reasons set forth below.  The CPSE initially recommended four hours of SEIT services per week for the child, however, after discussion, increased its recommendation to ten hours (Tr. p. 260; Parent Ex. Y-a at p. 1).  Petitioner father testified that, petitioners rejected the recommended SEIT services because ten hours per week that were offered by respondent was inadequate to meet his daughter's needs (Tr. p. 261).  The record indicates that the McCarton Center provided the child with 7.5 to 8.0 hours per week of special education instruction (SEIT and ABA combined), which as the impartial hearing officer correctly noted, is less than the ten hours petitioners rejected as inadequate (Parent Exs. W, Z).  Although petitioners and the child's service providers testified that she would benefit from additional SEIT and ABA hours (Tr. pp. 154, 172-74; see also Tr. p. 224), they agreed that an increase in services could not take place until the child stopped taking naps (Tr. pp. 171-72, 242, 247, 261).  They estimated that this would occur in fall 2006 (see Tr. pp. 247, 263).  An independent reading of the record indicates that, for at least ten months of the 12-month period covered by the child's IEP, the child would receive less than ten hours of SEIT services through petitioners' chosen program.  Therefore, I find that the level of SEIT services recommended by the CPSE was appropriate and petitioners' request for reimbursement of SEIT services through the McCarton Center should be denied. 

The impartial hearing officer granted petitioners' request for reimbursement for occupational therapy, however, she concluded that the rates for McCarton Center providers were much greater than those of the average providers (IHO Decision 5/16/06, p. 13). Accordingly, she limited the amount of reimbursement to $100.00 per hour.  However, she did so without any evidence in the record supporting that conclusion and without articulating a basis for doing so.  Upon the record before me, I am constrained to find that the record does not afford a basis for the impartial hearing officer's conclusion that the rates of McCarton Center providers were higher than those of average providers.

The impartial hearing officer also found that the evidence that the child needs speech-language therapy was undisputed and that the services rendered were appropriate (IHO Decision 5/16/06, p. 13).  Nevertheless, she concluded that the rates of McCarton Center providers were greater than those of average speech-language therapists were, and declined to award fees in excess of $100.00.  However, she did so without any evidence in the record supporting that conclusion and without articulating a basis for doing so.  Under the circumstances, I am constrained to find that the record does not support the impartial hearing officer's conclusion that the rates of McCarton Center providers were higher than those of average speech-language therapists.

Lastly, petitioners assert that the impartial hearing officer erred to the extent that she did not consider that the child's attendance at First Friends was expected to increase at a greater cost.  As an affirmative defense, respondent asserts that this issue was not properly raised below.  I concur.  Based on the foregoing, petitioners' claims that the child will be increasing her attendance at First Friends at an increased cost are beyond the scope of my review because they were not properly raised and developed below (Application of a Child with a Disability, Appeal No. 06-046; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024).

I have considered the parties' other claims, and I find them to be without merit.

`           THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that she reduced the rates of reimbursement for the child's occupational therapy and speech-language therapy and;

            IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's occupational therapy from November 7, 2005 through November 6, 2007, at the then current rates established at the impartial hearing, upon petitioners' presentation to respondent of proof of such payment and;

            IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's speech-language therapy from November 7, 2005 through November 6, 2007, at the then current rates established at the impartial hearing, upon petitioners' presentation to respondent of proof of such payment.

 

Dated:

Albany, New York

 

__________________________

 

August 28, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.

 

2 The term "free appropriate public education" means special education and related services that-- (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. 1401[9]; see also 34 C.F.R. 300.13; 20 U.S.C. 1414[d].