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

No. 06-063

 

 

 

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:

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

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied in part their request to be reimbursed for their son's applied behavioral analysis (ABA) services from January 13, 2006, and their request that the school district be required to include hours for team meetings in the child's educational program in the future.  The appeal must be dismissed. 

 

            First, I must address a procedural issue.  Petitioners attached to their petition an impartial hearing officer decision regarding a prior due process hearing involving the child.  Respondent objects to the submission of this decision on the basis that it was never entered into evidence, although it was used at the impartial hearing.  I note that this document was entered into evidence at the hearing as a part of Parent Exhibit A.  This document is therefore a part of the record and has been considered.

 

            The child was described as a "happy, excited and wonderful" student, who, at the time of the impartial hearing, attended one of respondent's full day kindergarten classes for talented and gifted children (Mar. 1, 2006 Tr. pp. 36, 43, 111-12; Mar. 29, 2006 Tr. p. 264).  The child's eligibility for special education programs and services and classification as a student with autism is not in dispute (see 8 NYCRR 200.1[zz][1]).

 

            At 19 months of age the child received a "tentative diagnosis" of autism and subsequently received speech-language, physical and occupational therapy (OT) (Mar. 1, 2006 Tr. pp. 171-72; Dist. Ex. 3 at p. 1).  In February 2002, 10 hours per week of ABA therapy was initiated, and services were gradually increased until the child received 35 hours of individual ABA therapy per week (Dist. Ex. 3 at p. 1).  In fall 2004 the child was enrolled in a private general education preschool program five mornings per week and during the 2004-05 school year he continued to receive ABA special education itinerant teacher (SEIT) services at school and at home (Mar. 1, 2006 Tr. pp. 37-38; Dist. Exs. 3 at p. 2; 4 at p. 2).1  The amount of ABA services provided to the child while at school decreased during the course of the 2004-05 school year from 100 percent to approximately 70-80 percent (Mar. 1, 2006 Tr. p. 42).

 

            In November 2004, when the child was four years old, he was privately evaluated by the McCarton Center (Dist. Ex. 3 at p. 1).  Although the child reportedly tolerated the structured testing session, he demonstrated variable attention skills and required significant redirection, breaks and support in order to complete testing tasks (id. at p. 7).  Administration of the Wechsler Primary and Preschool Scale of Intelligence-Third Edition (WPPSI-III) to the child yielded a verbal IQ score of 110 (High Average range), performance IQ score of 123 (Superior range) and a full scale IQ score of 118 (High Average range) (id. at p. 9).  Based on parental report elicited with the Vineland Adaptive Behavior Scales (Vineland), the child's overall adaptive behavior skills were in the moderately low range for his age, with scores in the adequate range for communication and motor skills, and scores in the moderately low range for daily living and socialization skills (id. at pp. 6-7).  The McCarton Center report stated that the child's pragmatic skills were deficient and he exhibited difficulty with turn taking in conversation (id. at p. 7).  The child was diagnosed with an autistic disorder and McCarton Center recommendations included a 12-month program of 25 hours per week home/community ABA therapy with an additional ten hours for team meetings, and an additional three hours per week for parent training with an ABA therapist (id. at pp. 7-8).  In addition, the McCarton Center recommended that the child attend a general education nursery school program accompanied by a one-to-one ABA therapist for 20 hours per week, and also recommended that he receive individual speech-language therapy three times per week and once per week in a small group, as well as individual, twice weekly OT (id. at p. 8).

 

            On November 10, 2004, the child was referred to respondent's Committee on Preschool Special Education (CPSE) (Answer 24).  The CPSE convened in January 2005 and recommended that the child be classified as a preschool student with a disability and receive a 12-month program of 25 hours per week SEIT services and the related services of speech-language therapy and OT (Parent Ex. P). 

 

            On January 3, 2005, a psychoeducational evaluation of the child was conducted to supplement the assessment conducted by the McCarton Center (Dist. Ex. 4).2  The clinical psychologist who evaluated petitioners' son engaged the child in play at his home, observed the child twice at his preschool program, interviewed the child's preschool "assistants" and discussed the child at length with his mother (Dist. Ex. 4 at p. 2).  The clinical psychologist attempted to complete the Gilliam Autism Rating Scale with the child's mother, but reported he was unable to administer it in a standardized manner due to the parent's focus on the child's worst behaviors rather than the overall frequency of the behaviors; therefore, the results were not included in his report (id.).  The clinical psychologist reported, overall, the child was very cooperative during the evaluation and was able to follow directions easily, sit patiently and quietly without signs of distraction or unusual behaviors (Dist. Ex. 4 at p. 3).  In his report, the clinical psychologist provided a review of the results of the McCarton Center evaluation of the child and stated that most standardized scores indicated that the child was functioning in many ways the same as his same-age peers, and that many of the most difficult behaviors identified appeared to be exhibited at home (id.).  The clinical psychologist opined that although the child "probably does not meet the diagnostic criteria for autism," he still needed academic support to maintain the developmental level he had reached (Dist. Ex. 4 at pp. 3-4).

 

            In February 2005, the child was invited to interview for the Talented and Gifted Program (TAG) at his public school (Parent Ex. O).

 

            Petitioners requested an impartial hearing on April 6, 2005 (Parent Ex. A at p. 7).  This impartial hearing (Hearing 1) was held on May 13, May 31 and June 14, 2005 (id. at pp. 7-8).  Hearing 1 is not the subject of the present appeal.

 

            In June 2005, the Lovaas Institute for Early Intervention (Lovaas Institute) evaluated the child and compiled a consultation report (Parent Ex. M).  The Lovaas Institute report stated that since November 2004, the child had received 35-40 hours of ABA "behavioral treatment" per week from a team of providers hired by petitioners and that he attended a general education pre-kindergarten class accompanied by an instructor from his home program (id.).  The consultation report recommended various programs for the child aimed at increasing his skills in all domains of functioning (id. at pp. 2-5).  The consultation report indicated that the child exhibited tantrum behaviors at home with his parents as well as toileting problems, for which interventions were suggested (id. at p. 6). 

 

            During summer 2005, respondent's Committee on Special Education (CSE) convened three times to develop the child's individualized education program (IEP) for the 2005-06 school year (Dist. Ex. 2 at pp. 1-4).  The resultant IEP dated August 4, 2005 recommended a public school placement in a general education kindergarten program with two hours per day of direct, in-class special education teacher support services (SETSS) and two periods per month of indirect SETSS (Parent Ex. C; Dist. Ex. 2 at pp. 1, 21).  The related services of counseling, OT and speech-language therapy were also recommended (Dist. Ex. 2 at p. 23).  During the summer of 2005, the child attended respondent's summer camp program with support (Mar. 29, 2006 Tr. pp. 15, 56-57).

 

            At an unspecified time the child was screened by respondent's staff and it was determined that he was eligible to participate in its TAG program (see Mar. 29, 2006 Tr. pp. 52).  The TAG program was composed of children who functioned at a "higher level" than children in a regular kindergarten class (Mar. 29, 2006 Tr. pp. 137-38).  Although there was a range of skills, most children entered the TAG kindergarten class knowing letter sounds and some of them were able to read (Mar. 29, 2006 Tr. pp. 139-40).  A team of three teachers determined eligibility for the TAG program by assessing skills such as counting, identifying shapes, following directions, discussing a story read to the child and observing how the child interacted socially (Mar. 29, 2006 Tr. pp. 10-12).

 

            The child began the 2005-06 school year in respondent's TAG kindergarten class of 18 students and received ten hours of in-school ABA services four days per week from a "confederate" therapist unknown to the child (Mar. 1, 2006 Tr. pp. 36, 39-43, 120; Mar. 29, 2006 Tr. p. 138).  The goal of the child's confederate therapist was to blend into the class so that the child and other students in the class did not realize she was the child's therapist (Mar. 1, 2006 Tr. pp. 39-40, 118, 122).  The child's 15 hours per week of home-based ABA services continued (Mar. 1, 2006 Tr. pp. 109-10).  The child's ABA team was composed of his mother, in-school confederate therapist, two home-based ABA therapists and the behavior/program consultant from the Lovaas Institute, who supervised the home and school ABA therapists and who was the supervisor of the child's program (team supervisor) (Mar. 1, 2006 Tr. pp. 24, 34, 55; see Parent Ex. Y at p. 1).  The child's team met on average every other week for two hours to discuss the child's program (Mar. 1, 2006 Tr. p. 34).  Twelve of the child's ABA therapy hours per month were considered "supervisory" and consisted of team meeting and parent training time (Mar. 1, 2006 Tr. pp. 53-54, 62).3

 

            On September 22, 2005 the impartial hearing officer in Hearing 1 rendered his decision (IHO Decision 1) which ordered respondent to reimburse petitioner for the costs of ABA/SEIT services received from private therapists and a supervisor for 25 hours per week until the end of the period covered by the child's January 12, 2005 IEP, which ended January 12, 2006 (Parent Ex. A at p. 28).

 

            By letter dated January 10, 2006, petitioners requested an impartial hearing and requested inter alia reimbursement for an additional 12 hours per month of team meeting time (Parent Ex. A at p. 4).

 

            In February 2006, the child's team supervisor prepared a consultation report (Parent Ex. Y).  The consultation report provided modifications to the child's program and updated information regarding the child's progress with the programs that were recommended in the June 2005 Lovaas Institute consultation report (id.; see Parent Ex. M).  The consultation report stated that the child's toileting problem had improved; however, the report noted an increase in tantrum behavior at home and provided parent-training recommendations (Parent Ex. Y at pp. 5-6). 

 

            By the end of March 2006, the kindergarten teacher reported that the child was completing above grade level work and was functioning above grade level standards (Mar. 29, 2006 Tr. pp. 146-47).  She also stated that the child was in the "middle" of the TAG class compared with his peers (Mar. 29, 2006 Tr. p. 147).

 

            The impartial hearing that is the subject of this appeal convened on March 1, 2006 and concluded on April 19, 2006, after three days of hearings.  At the impartial hearing, respondent conceded that the IEP dated July 12 and 19, 2005 and August 4, 2005 did not offer petitioners' son a free appropriate public education (FAPE) for the 2005-06 school year, and that there were no equitable considerations precluding petitioners' claim (Mar. 1, 2006 Tr. pp. 9, 113; Parent Ex. I).  At the impartial hearing, petitioners asserted that 25 hours per week of ABA services and 12 hours per month of team meeting time was appropriate to meet their son's special education needs and they sought reimbursement for this amount of services and meeting time from January 13, 2006 forward.  The prior impartial hearing officer decision (IHO Decision 1) had awarded petitioners reimbursement for 25 hours per week of ABA services from January 13, 2005 through January 12, 2006 and this decision was not appealed by either party (Parent Ex. A, IHO Decision 1, p. 22).  Petitioners sought to maintain reimbursement for the 25 hours of ABA services ordered by IHO Decision 1, and to add reimbursement for 12 hours per month for team meeting time.  Respondent argued that the child had been accepted into a talented and gifted kindergarten class, that he did not display inappropriate behaviors, and that he was at an age and grade appropriate level.  Respondent asserted that petitioners' additional 12 hours of requested reimbursement should be denied and that the 25 hours per week of ABA services reimbursement be reduced.

 

            By decision dated May 4, 2006, the impartial hearing officer held that a reduction in the level of ABA services that the child was receiving and that were requested by petitioners was warranted (IHO Decision, p. 16).  He then granted petitioners reimbursement for 10 hours per week of ABA services and also for 5 hours per month of supervisory ABA services.  He ordered respondent's CSE to convene within 30 days of his decision and devise an IEP for the child for the 2006-07 school year that "is consistent with and incorporates this Order" (IHO Decision, p. 17). 

 

            Petitioners appeal and assert that the impartial hearing officer erred by putting too high of a burden of persuasion on petitioners.  Specifically, petitioners contend that the impartial hearing officer held that they needed to prove that the level of ABA services for which they were seeking reimbursement was "necessary," as opposed to "appropriate."  Petitioners seek reimbursement for 25 hours per week of ABA services and 12 hours per month of team meeting time.  Respondent sets forth three affirmative defenses.  The first, addressed above, is regarding consideration of IHO Decision 1 which was attached to the petition.  Respondent's second affirmative defense asserts that petitioners are not entitled to receive 12 additional hours of ABA reimbursement for any time covered by the unappealed IHO Decision 1, which covered a one year period through January 12, 2006.  Respondent's third affirmative defense asserts that the impartial hearing officer was correct in denying reimbursement for additional ABA services and in reducing the number of ABA services hours being reimbursed.  Respondent asserts that petitioners failed to prove that the number of ABA service hours that they requested to have reimbursed was appropriate or the least restrictive environment (LRE) for the child, noting that the child exhibited appropriate behavior for a typically developing child.  Respondent also asserts that the impartial hearing officer's decision is clear that he was using the correct standard for petitioners' burden of persuasion.

 

            A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482)4 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 [1982]; Frank G. v. Bd. of Educ., ___ F.3d ___, 2006 WL 2077009, at *13 [2d Cir. July 27, 2006]; 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 individualized education program (IEP) (20 U.S.C. 1401[9][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]; 34 C.F.R. 300.347).5  The student's recommended program must also be provided in the LRE (34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).  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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' 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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  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]; 34 C.F.R. 300.403).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

 

            As noted above, respondent conceded the first criterion of the Burlington/Carter analysis when it conceded at the impartial hearing that its 2005-06 IEP for the child failed to offer the child a FAPE (Tr. p. 9).  This is not an issue on appeal. 

 

            With respect to the second criterion of the Burlington/Carter analysis, I must now consider whether petitioners have met their burden of proving that the ABA services for which they seek reimbursement were appropriate to meet their son's special education needs (Burlington, 471 U.S. 359; Frank G., 2006 WL 2077009, at *5.  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that "the private education services obtained by the parents were appropriate to the child's needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; see also Frank G., 2006 WL 2077009, at *5; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]).

 

            The impartial hearing officer held that the level of ABA services for which petitioners were seeking reimbursement was "entirely inappropriate" (IHO Decision, p. 16).  He noted that the child's behavior was consistent in school on a daily basis (Mar. 29, 2006 Tr. p. 183), that the child did not have academic needs warranting pre-teaching of material, and that the child's behavior at home did not warrant an increase in services (IHO Decision, p. 16).  The impartial hearing officer's decision was well-reasoned and thorough and I see no reason to modify his order, as set forth below.

 

            The impartial hearing officer found the testimony of respondent's witnesses credible when they noted that the child exhibited the behavior of a typical child at school (IHO Decision, p. 10).  He noted that although petitioners' confederate ABA therapist testified that in her opinion the child's behaviors exceeded "the normal level of inappropriate behavior," she also conceded that she was not qualified to answer a question regarding behaviors of normally developing children (Mar. 1, 2006 Tr. pp. 155-57).  Additionally, the impartial hearing officer noted that although the confederate ABA therapist testified that the child's name was written on the board for inappropriate behavior more frequently than most other children in the class, her own notes directly contradicted this statement and stated that his name was not on the board any more or less than anyone else (IHO Decision, p. 12; Apr. 19, 2006 Tr. p. 447; Parent Ex. T at p. 1).  The impartial hearing officer found that the record supported the fact that the child's behavior at school was that of a typically developing child.  The impartial hearing officer also found the testimony of the child's kindergarten teacher credible when she noted that the child's academic ability placed him in the middle of the talented and gifted class (IHO Decision, p. 14).

 

            The impartial hearing officer noted the child's daily schedule of school and services, which was so fully booked from the time he woke up until he went to sleep that the child could only eat an after-school snack while walking or riding his bike (IHO Decision, p. 13; Mar. 29, 2006 Tr. pp. 323-24).  The impartial hearing officer also noted that part of the ABA therapists' services included impromptu trips to the playground and play dates at the request of petitioners (IHO Decision, p. 13; Mar. 29, 2006 Tr. p. 375), which he held did not constitute special education services.

 

            On appeal, petitioners argue that they met their burden of proving that the ABA services for which they seek reimbursement are appropriate to meet their son's special education needs.  They assert that the impartial hearing officer erred when he failed to order reimbursement for all the ABA services for which they requested reimbursement, and that he placed an unduly high burden of persuasion on them.  Respondent asserts that the impartial hearing officer considered the correct burden of persuasion and that petitioners failed to prove that the ABA services were appropriate to meet their son's special education needs in the LRE. 

 

            First, I find that the impartial hearing officer properly recited petitioners' burden of persuasion in his decision (IHO Decision, p. 10).  The impartial hearing officer's decision, read as a whole, applied the proper burden of persuasion and did not apply an incorrect burden of persuasion to petitioners.

 

Second, I concur with the impartial hearing officer that petitioners failed to prove that the level of ABA services for which they are seeking reimbursement is appropriate to meet the child's special education needs. Petitioner argues that, because the child's kindergarten teacher had not seen the child's IEP until the impartial hearing, her regular education instruction is unlikely to be the reason for the child's progress.  Petitioners rely on this factor as relating to whether the ABA therapists and supervisors "propelled his progress," as opposed to the classroom instruction (Petition, p. 5).  The fact that the child's kindergarten teacher had not reviewed the child's IEP until just prior to the impartial hearing does not support petitioners' argument that ABA services were solely responsible for the child's progress in the classroom.  As detailed below, the record reflects that the child was progressing in an advanced kindergarten classroom.  The record also reflects that some of the ABA services that the child was receiving at home were addressing inappropriate home behaviors, were engaging the child in inappropriate pre-teaching beyond even the level of the TAG kindergarten class, or were otherwise comprised of services that did not address special education needs of the child. 

 

            The kindergarten teacher testified that she did not receive a copy of the child's IEP until just prior to the impartial hearing and her understanding was that it was used by the child's special education and related service providers (Mar. 29, 2006 Tr. pp. 189, 191-92; see Dist. Ex. 2).  A review of the child's IEP indicates that annual goals and short term objectives were recommended in the areas of math, OT, reading comprehension, written language, counseling, speech-language, and play skills (Dist. Ex. 2 at pp. 9-20).  The kindergarten teacher testified that the child was academically "squarely in the middle" of the TAG class, and that he did not require more intervention than 60 percent of the other students in her class with regard to solving social conflicts (Mar. 29, 2006 Tr. pp. 185-86).  Although at the beginning of the 2005-06 school year, the kindergarten teacher agreed that the child's receptive and expressive language skills and social and play skills were delayed, she testified that these delays did not make him stand out from the rest of the children (Mar. 29, 2006 Tr. pp. 197-99; see Dist. Ex. 2 at p. 5).  At the beginning of the school year, the child did not demonstrate any "out of the ordinary" difficulties to a higher degree than other children in the class (Mar. 29, 2006 Tr. p. 246).  She also reported that she was able to assist the child in following routines, directions and tasks even though she had not seen his IEP, and that not having the IEP did not prevent her from effectively teaching the child (Mar. 29, 2006 Tr. pp. 245-47).  The kindergarten teacher stated that, although she did not review the child's IEP until just prior to the impartial hearing, she was able to select behaviors that the child needed to improve or needed assistance with, as she was able to do with other children in her class (Mar. 29, 2006 Tr. pp. 189, 191-92, 247).  She also testified that she worked on some areas (i.e., eye contact) that the team also reported they worked on (Mar. 29, 2006 Tr. pp. 225-26; Parent Ex. T at p. 6).  The record does not provide a basis for concluding, as petitioners suggest, that the classroom teacher is not responsible for any of the child's progress and that the ABA therapists are responsible for all of the child's progress.  I note that respondent has conceded prong one of the Burlington/Carter analysis, and I therefore do not address the fact that the teacher had not reviewed the IEP under that analysis (see 20 U.S.C. 1414[d][2][A]; 34 C.F.R. 300.342[b][2]; 8 NYCRR 200.2[b][11]).

 

            I also note that the record as a whole does not establish that the level of ABA services for which reimbursement is requested is required in order to meet his special education needs.  Petitioners sought to maintain the child's 25 hours per week of ABA services and add an additional 12 hours per month for team meeting time.  The impartial hearing officer granted 10 hours per week of ABA services and 5 hours per month for team meeting time.  I find that the record supports the impartial hearing officer's determination, as detailed below.

 

            The child leaves for school at 8:15 a.m. and his school day ends at 3:00 p.m. (Mar. 29, 2006 Tr. pp. 315-16).  In an average week, he receives ABA therapy for three hours after school from 3:30 to 6:30 p.m., four days per week (Mar. 29, 2006 Tr. p. 318).  One day per week, he receives three hours of speech-language therapy from 4:00-7:00 p.m. (Mar. 29, 2006 Tr. p. 319).  At the time of the impartial hearing the child did not receive his three hours of ABA on Thursdays because he was independently attending an Art class (Mar. 29, 2006 Tr. pp. 327-28, 332).  The ABA therapy time missed on Thursdays was made up on the weekend (Mar. 29, 2006 Tr. pp. 321, 328).  The child's parent stated that weekend ABA sessions sometimes incorporated play dates for the child that included academic activities (Mar. 29, 2006 Tr. pp. 329; see Dist. Ex. 6).  In addition to analyzing the specific activities performed by the child's team of therapists, the impartial hearing officer also noted that the amount of ABA therapy was inappropriate (IHO Decision, p. 16)

 

            The child's kindergarten teacher in the TAG program has eight years of teaching experience with students in kindergarten and first grade (Mar. 29, 2006 Tr. pp. 136-37).  Although most students enter the TAG class with higher-level skills than a regular kindergarten student, within the TAG class there is a range of skill levels (Mar. 29, 2006 Tr. pp. 139-40).  If some students in the TAG kindergarten class completed tasks at a higher level than the child, it did not necessarily mean that the child was "below the standards" in that area because the TAG class students were already functioning at a higher level than typical kindergarten students (Mar. 29, 2006 Tr. pp. 148-49).  The kindergarten teacher testified that the child functioned "in the middle" of his TAG class and because the child had surpassed the expected benchmarks for the end of kindergarten, he was completing above grade level work (Mar. 29, 2006 Tr. pp. 146-47; see Dist. Ex. 5 at p. 2). 

 

            The child's kindergarten teacher reported that the child was becoming more social and had a group of friends at school (Mar. 29, 2006 Tr. p. 171).  Although the child needed an occasional reminder and support to solve a social conflict, the kindergarten teacher testified that it was nothing that she could not control, and that approximately 60 percent of other children in the class needed reminders and support with social conflicts as well (Mar. 29, 2006 Tr. pp. 184-85).  She testified that the child did not exhibit unduly repetitive behaviors that would be considered atypical for "regular five year olds" (Mar. 29, 2006 Tr. pp. 218-19).  The child engaged in imitating "silly" behavior exhibited by another child in the class, but the kindergarten teacher testified she was addressing this concern with the child and she agreed that the behavior was an "acceptable cost" of the child becoming more social with other children (Mar. 29, 2006 Tr. pp. 242-43).

 

            The kindergarten teacher provided multiple examples of the child's behavior that other students in her class also demonstrated (Mar. 29, 2006 Tr. pp. 184-85, 218-19, 247, 250-51, 254-57) and stated that all the children in the class needed some type of support (Mar. 29, 2006 Tr. p. 184).  Petitioners informed the kindergarten teacher that the child exhibited noncompliant, non-responsive and tantrum behaviors at home; however, the kindergarten teacher testified that the child did not exhibit those behaviors at school (Mar. 29, 2006 Tr. pp. 179-80).  She opined that the child's biggest deficit areas were solving problems independently and taking responsibility for mistakes (Mar. 29, 2006 Tr. p. 224).  The kindergarten teacher, when asked by the confederate therapist what the child's principal deficit was, did not identify any area that she considered to be a "major deficit" (Mar. 1, 2006 Tr. p. 147).  

 

            The confederate therapist testified that her role in the classroom was to facilitate prompting of the child and to provide information regarding the child's home program to his teacher (Mar. 1, 2006 Tr. p. 118).  The confederate therapist testified that she walked around the classroom, interacted with the other children in the class and played near the child to observe him (Mar. 1, 2006 Tr. pp. 120-21).  The confederate therapist provided reinforcement to other children in the class so that the child could observe their behavior and imitate it (Mar. 1, 2006 Tr. p. 41).  Although the confederate therapist at times directly interacted with the child, because the child was not supposed to be aware the confederate therapist was there solely for him, she also made herself "available to any of the children who need[ed] [her]" (Mar. 1, 2006 Tr. pp. 91, 120-21).  The team supervisor explained that a large part of what the confederate therapist did was prompt the teacher to assist the child (Mar. 1, 2006 Tr. pp. 91-92). 

 

            The kindergarten teacher reported that she had met with the child's team supervisor twice and his confederate therapist five or six times since the beginning of the school year (Mar. 29, 2006 Tr. pp. 176, 227).  She stated the confederate therapist informed her of what the team's goals were for the child and what they were working on at home (Mar. 29, 2006 Tr. pp. 176-77).  The kindergarten teacher testified that when asked, she provided recommendations to the team supervisor and the confederate therapist but they did not provide recommendations to her (Mar. 29, 2006 Tr. pp. 228-29).  She testified that the confederate therapist took "a lot" of notes regarding the child's behavior in the classroom; however, she did not consistently assist other children with writing tasks because the confederate therapist is not a trained teacher (Mar. 29, 2006 Tr. pp. 180-81).  The kindergarten teacher testified that she asked the confederate therapist not to assist her with other students or classroom tasks for this reason (Mar. 29, 2006 Tr. pp. 236-37).  The kindergarten teacher opined that the services the child received did not have an impact on the child's behavior in the classroom and that the confederate therapist's presence did not contribute to the child's ability to behave appropriately or demonstrate behaviors similar to his peers (Mar. 29, 2006 Tr. p. 182).  She testified that the child's behavior was consistent whether or not the confederate therapist was in the classroom and the confederate therapist acknowledged that the child did not have difficulty with inappropriate behaviors on the days she was not in his classroom (Mar. 29, 2006 Tr. pp. 182-83; Apr. 19, 2006 Tr. pp. 458-59).  As of March 2006, the team supervisor testified that the child's behavior in school was "usually fairly good" (Mar. 1, 2006 Tr. p. 48). 

 

            The impartial hearing officer found that the confederate therapist's presence in the classroom was not a factor in the child's appropriate behavior during the 2005-06 school year (IHO Decision, p. 12).  I concur with the impartial hearing officer that the confederate therapist's support was "incidental at best" (id.).  The confederate therapist did not often directly interact with the child, and one of her main goals was to report back to the home team what was happening in the classroom (Mar. 1, 2006 Tr. p. 175). 

 

            Although the confederate aide testified that the behaviors the team targeted are those that are "extreme," the kindergarten teacher testified that the behaviors described in the team's school notes were not problematic and not something the child exhibited repeatedly (Mar. 1, 2006 Tr. p. 154; Mar. 29, 2006 Tr. pp. 254-55; Parent Ex. X at p. 1).  The child's team targeted other behaviors including those characterized as "inappropriate," and "non-responsive/defiant" which the kindergarten teacher described as behaviors other children in the class also exhibited (Mar. 29, 2006 Tr. pp. 256-57, 261-63, 272-75; Parent Ex. X).  The kindergarten teacher, in reviewing the team's documentation, stated that some of the behaviors targeted by the team were not behaviors she witnessed the child exhibit in class (Mar. 29, 2006 Tr. pp. 263-66).  She stated that behaviors the team reported as problematic or areas of weakness were also not necessarily exhibited by the child in school (Mar. 29, 2006 Tr. pp. 264-65).  The team supervisor testified that the child did not exhibit aggressive behavior in school and did not exhibit tantrum behavior when alone with his teacher (Mar. 1, 2006 Tr. pp. 89-90).  The team supervisor opined that the child had the most difficulty generalizing "good" behavior to the home environment and when asked if the child's problems at home were the school's responsibility, she responded affirmatively; because if left untreated, the child's behavior could "expand to a point where it would interfere with his ability to learn in the classroom" (Mar. 1, 2006 Tr. p. 89).  The record reflects that during out-of-school activities, when the therapists were not present, the child "could pass for a typical child" and there were no episodes of inappropriate behavior (Mar. 29, 2006 Tr. pp. 332-34, 336-38).

 

            The record revealed that a portion of the child's ABA program focused on "pre-teaching" of skills (Mar. 29, 2006 Tr. pp. 356-57).  In reference to the January 2006 clinic notes prepared by the child's team, the kindergarten teacher opined that a phonics goal the team worked on with the child was not a realistic goal because it was too difficult for his current ability level (Mar. 29, 2006 Tr. pp. 157-61; Parent Ex. T at p. 4).  The clinic notes indicated that with the team the child was non-responsive with that activity (Parent Ex. T at p. 4).  The kindergarten teacher testified that the child does not exhibit non-responsive behavior in the classroom when completing writing activities (Mar. 29, 2006 Tr. p. 162).  The kindergarten teacher opined that staff who work with children need to be trained to work on a particular level because children become easily frustrated (Mar. 29, 2006 Tr. p. 265).  The kindergarten teacher also testified that it was appropriate to work on things a child cannot do if the focus was on developmentally appropriate skills; otherwise, it could be very frustrating for a child and negatively affect a child's self-esteem (Mar. 29, 2006 Tr. pp. 269-70). 

 

            The confederate therapist is not a certified teacher and testified that she was not qualified to answer questions about behaviors typical of "normally" developing children such as those in the child's TAG class (Mar. 1, 2006 Tr. pp. 156-57; Apr. 19, 2006 Tr. p. 459).  The child's mother testified that the team supervisor educated her regarding age appropriate behaviors for typically developing five and six year old children (Mar. 29, 2006 Tr. p. 360).  However, the team supervisor only observed the child in school twice during the school year, and relied on the confederate therapist's report of what occurred in the child's classroom in order to develop and modify his program (Mar. 1, 2006 Tr. pp. 44-45, 60; Apr. 19, 2006 Tr. pp. 398-99).  The impartial hearing officer stated that he was not persuaded that the confederate therapist was familiar with what was considered typical behavior of a kindergarten child (IHO Decision, p. 11).  He gave credit to the kindergarten teacher's opinions regarding whether or not the child's behavior was typical of a kindergarten child (id.).  The confederate therapist and team supervisor opined that academically the child was functioning in the lower third of his kindergarten class and "a little below average" (Apr. 19, 2006 Tr. pp. 430, 436).  Again, the impartial hearing officer accepted the kindergarten teacher's opinion based on her "extensive experience as a grade school teacher" that the child was functioning in the middle of the TAG kindergarten class, which in terms of academic achievement was superior to what was accomplished in a typical kindergarten class (IHO Decision, p. 14).  The record does not establish that any pre-teaching of academic material was needed in order to address any special education needs of the child.  In addition, it was suggested by the child's kindergarten teacher that the level of pre-teaching that the child's team was performing could actually harm the child by frustrating him because it was too far advanced for even the TAG kindergarten class.

 

            I concur with the impartial hearing officer that the kindergarten teacher, with eight years of teaching experience, was a better judge of the range of behaviors and the child's developmental level than the confederate aide who was not a teacher and who observed the child 10 hours per week.  I concur with his determination that the testimony of the kindergarten teacher was credible (IHO Decision, p. 12).  In addition, the confederate therapist testified that the kindergarten teacher was doing a good job and the child's mother agreed that she was happy to have her as her son's teacher  (Mar. 1, 2006 Tr. pp. 128, 162).

 

            The child's mother testified that the child's programs on the weekend were "run incidentally" and may include trips to the zoo with a play date (Mar. 29, 2006 Tr. pp. 329-30).  The impartial hearing officer found that the home ABA therapist's deviation from the child's program to take him to the playground for unstructured play time did not constitute a special education service, despite the representation that it was to observe his social skills with other children (IHO Decision, p. 13; see Mar. 29, 2006 Tr. p. 375).  The impartial hearing officer also found that the fact that there was time to deviate from the child's planned program was inconsistent with petitioners' request for additional ABA services hours.  I concur with this finding. 

 

            Based upon my review of the hearing record and the thorough decision of the impartial hearing officer, I find that the hearing was conducted in a manner consistent with the requirements of due process, and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. 300.510[b][2]; N.Y. Educ. Law 4404[2]). 

 

            THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

 

__________________________

 

September 20, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 Providers of the child's ABA services are called aides, therapists and SEIT interchangeably in the record.

 

2 The Office of State Review has not received a complete copy of this exhibit despite multiple requests to the New York City Impartial Hearing Office to submit a complete copy of this exhibit.

 

3 The supervisor testified that her 12 supervisory hours per month was paid for out of the child's weekly 25 ABA hours (Mar. 1, 2006 Tr. pp. 59, 62).  However, one in-school and two home-based ABA therapists were not paid for their time spent in two-hour bi-monthly team meetings, thus the impartial hearing request for reimbursement of 12 hours per month of ABA therapist time at a rate of $70.00 per hour (Mar. 1, 2006 Tr. pp. 63, 111, 137). 

 

4 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. 1400, et. seq.]).  The relevant events in this appeal occurred subsequent to that date, and therefore all references to the IDEA used herein refer to the newly amended provisions of the IDEA (see Application of the Bd. of Educ., Appeal No. 06-009).

5 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).