The State Education Department
State Review Officer
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
Mayerson & Associates, attorney for petitioners, Christina D. Thivierge, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber
Petitioners appeal from the decision of an impartial hearing officer, which denied their request to be reimbursed for their daughter's tuition costs at the McCarton School for the 2005-06 school year and for the cost of supplemental related services and applied behavior analysis (ABA) instruction for their daughter during the 2005-06 school year. The appeal must be dismissed.
At the commencement of the impartial hearing on April 7, 2006, the child was three years seven months old and attending the McCarton School (Tr. pp. 1, 83; Dist. Ex. 19). Petitioners unilaterally placed their daughter at the McCarton School in the beginning of the 2005-06 school year (see Parent Ex. B).1 The Commissioner of Education has not approved the McCarton School as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). During the 2005-06 school year, the child also received supplemental related services and ABA instruction at the McCarton Center2 after school hours and at home (Tr. p. 94; see Parent Ex. B).
The child exhibits significant deficits in her receptive and expressive language skills, gross and fine motor skills, oral motor and feeding skills, and in her sensory processing abilities that affect her communication, activities of daily living, play, socialization and learning (Parent Ex. EE at p. 1; Tr. p. 26). For the 2005-06 school year, the child was classified as a preschool student with a disability (Parent Ex. E at p. 1; see 8 NYCRR 200.1[mm]). The child's classification is not in dispute in this appeal.
The child was first evaluated through the Connecticut Birth to Three program when she was 16 months old, but was found ineligible for services (see Parent Ex. AA at p. 1). When the child was 18 months old, petitioners obtained a private comprehensive evaluation of the child at the McCarton Center, consisting of a neurodevelopmental evaluation, an occupational therapy evaluation, and a speech-language evaluation (Parent Exs. AA, BB, CC).
The neurodevelopmental evaluation was conducted over two sessions in March and April 2004 and included administration of the Bayley Scales of Infant Development: Second Edition (BSID-II), the Childhood Autism Rating Scale (CARS), and the Vineland Adaptive Behavior Scales (Vineland), in addition to clinical and play observations, parent interview, and physical and neurological examinations (Parent Ex. CC at p. 1). The child obtained a score of 71 on the mental development scale of the BSID-II suggesting that her level of cognitive development was mildly delayed (id. at pp. 3, 5, and 7). She demonstrated scattered verbal skills ranging from the 11 to 14 month age level and nonverbal skills ranging from the 13 to 19 month age level (id. at p. 7). The child demonstrated few expressive word approximations and did not consistently respond to her name (id. at p. 3). The child obtained a score of 82 on the motor development scale of the BSID-II suggesting that her motor skills were mildly delayed (id. at pp. 3, 5, and 7). She demonstrated scattered gross motor skills ranging from the 12 to 15 month age level and fine motor skills ranging from the 13 to 19 month age level (id. at p. 7).
The mother's responses to the Vineland revealed the child's overall adaptive behavior skills to be in the moderately low range for her age (id. at p. 4). In the communication domain, the child's receptive skills were reported by her mother to be moderately low and her expressive skills in the adequate range (id.). In the daily living domain, the child's overall skills were reported to be moderately low, although all the different areas were reported to be in the adequate range (id.). The child's socialization skills were reported to be in the adequate range; she was reported to be interested in other children, played close to other children, and engaged in simple interaction games (id.). Her mother reported that the child had not yet had the opportunity to participate in activities with peers (id.). She reported the child's gross motor skills to be moderately low and her fine motor skills to be adequate (id. at p. 5).
The evaluator completed the CARS based on observation and parent report (id.). The evaluator noted that the child had mild to moderate problems in relating to others, imitation, visual response, listening response, and verbal and nonverbal communication (id.). Although the evaluator reported that the child's overall score of 29 placed her below the cutoff for an autism spectrum disorder (ASD), the evaluator diagnosed the child with a pervasive developmental disorder-not otherwise specified (PDD-NOS) for the stated reason that "utilizing the CARS and clinical observation indicates that she meets criteria for this diagnosis" (id. at pp. 5-6).
The evaluator at the McCarton Center made numerous recommendations for the child's programming, including a continuous 12-month program of intervention with weekly therapy spread out over a seven day period; ABA therapy for at least 30 hours per week at home, supervised by an individual very experienced in ABA therapy; weekly teaching clinics with the ABA supervisor and ABA therapists in addition to the child's 30 hours of therapy; an additional two hours per week of parent training; five hours per week of speech language therapy, including oral motor therapy and prompts for restructuring oral muscular phonetic targets (PROMPT) therapy; three hours per week of occupational therapy, including sensory integration; and additional monthly interdisciplinary meetings between the child's therapists, teachers, and parents to review the child’s progress and modify her program (id. at pp. 5-6).
On April 12, 2004, the child received an occupational therapy evaluation at the McCarton Center (Parent Ex. BB). Administration of the Peabody Developmental Motor Scale - Second Edition (PDMS-2) yielded a gross motor quotient (GMQ) score of 91 (27th percentile), a fine motor quotient (FMQ) score of 94 (35th percentile), and a total motor quotient (TMQ) score of 92 (30th percentile) (id. at p. 2). Her motor skills were rated average with slightly below average object manipulation or "ball play" skills (id. at p. 5). The evaluator utilized the caregiver questionnaire portion of the Infant/Toddler Sensory Profile to assess the child's sensory processing abilities (id. at pp. 2-3). The parent's responses to the questionnaire yielded scores indicating the child exhibited a "probable difference (less than others)" for visual, tactile, and vestibular processing (id. at pp. 2, 3-4). The child's mother reported that her daughter demonstrated no aversion to any food texture or smell, tolerated her bath, hair washing, and tooth brushing, and generally tolerated clothing textures (id. at p. 4). The evaluator determined that the child did not require occupational therapy but recommended that she be encouraged to engage in sensory rich activities while exploring her environment (id. at p. 5). She also recommended that the child's independence be fostered (id.).
The child's comprehensive evaluation at the McCarton Center concluded on May 20, 2004, at which time she received a speech-language evaluation (Parent Ex. AA). The evaluator reported that the child had difficulty maintaining attention and focus and that testing was completed only with a high level of support and reinforcement (id. at p. 2). She did not indicate in her report what assessment instruments she used to test the child. The evaluator reported that the child demonstrated difficulty using more than one object in play, understanding a specific phrase or word other than "no," following a routine with familiar direction and cues, demonstrating appropriate use of play with a number of common objects, and identifying familiar objects from a group (id.). Expressively, the child vocalized soft throaty and/or gurgling sounds; responded to a familiar speaker by smiling; vocalized pleasure by laughing and displeasure by crying; vocalized when talked to without moving arms and legs during vocalizations; protested by gesture; vocalized two different vowel sounds; played simple anticipatory games with her mother; and communicated nonverbally using a gesture (pushing an unwanted object away) (id.). In the areas of oral motor and feeding, the child exhibited both hypersensitive and hyposensitive reactions to various textures and proprioceptive input, as well as an immature chewing pattern with compromised jaw grading skills, and decreased tone and strength in her jaw and lips (id. at p. 3). The child's articulation and fluency/prosody were not formally assessed due to her overall level of linguistic output (id.). The speech-language therapist recommended that the child receive speech-language therapy five times per week for 60 minutes on an individual basis (id. at p. 4).
Petitioners subsequently referred the child to the New York State Early Intervention Program (EIP) in July 2004 due to their concerns about her language development (Dist. Exs. 2 at p. 2; 3 at p. 2; 4 at p. 1). A core evaluation, consisting of speech-language, occupational therapy, and physical therapy evaluations, was conducted by the Children's Home Intervention Program (CHIP) (Dist. Exs. 3; 4; 5; 6). A parent interview indicated that the child did not demonstrate understanding of any simple, familiar words or phrases and that her expressive language was limited, consisting only of "babbling a few consonant and open vowel sounds" (Dist. Ex. 3 at p. 1). The child's mother reported that the child was receiving several hours of ABA and speech-language intervention at the McCarton Center but stated that she wanted the child to receive services through the EIP (id.). The child's mother also reported that the child's older sibling, who was diagnosed with autism, attended the McCarton School and received ABA and related services (id.). The child's mother expressed that her main concern was that the child had not developed language and that, like her sibling, she may have autism (id. at p. 2). She requested that the child's services be assigned to professionals experienced in ABA and that the child be provided with services at the maximum length and duration appropriate for her (id.).
An initial individual family services plan (IFSP) meeting was convened by the EIP on August 18, 2004 and sensory integration, speech-language therapy, physical therapy, and family training services were initiated in September 2004 (Dist. Ex. 2 at pp. 2, 11-14; Tr. pp. 83-84). The child continued to receive private speech-language therapy (Parent Ex. P at p. 1).
Provider progress reports completed by the child's EIP interventionists in January 2005 indicated that in the area of special instruction and ABA, the child's addressed outcomes included increased eye contact, increased vocalization and imitation, increased attention span, increased response to her name, following directions, playing with a wider variety of toys, receptive identification, and increased ADL skills (Parent Ex. Z at pp. 1, 6). The interventionists reported that they used ABA techniques including positive reinforcement, natural environment teaching, "mand" or request training, and discrete trial teaching (id. at p. 1). Petitioners received parent training at least twice a month and participated in a team meeting one time per month (id. at pp. 2, 3, and 7). Parent training had focused on ABA techniques such as prompting, reinforcement, extinction, "manding" skills, and activities for natural environment play and teaching (id.). At the time of the report, the child consistently imitated at least 5 gross motor tasks, matched over 10 different objects, completed 6 to 9 piece puzzles, inserted 12 shapes in the shape sorter, and followed 8 different commands (id. at pp. 2, 3, 7). In the area of physical therapy, the child's addressed outcomes included improved muscle strength, improved proximal stability, improved dynamic balance, and improved gait patterns (id. at p. 4). The physical therapist reported that the child exhibited increased muscle strength and improvement in her dynamic balance (id. at p. 5). The child demonstrated increased safety in her transfers as well as increased safety and speed with her gait (id.). The physical therapist recommended that the child continue to receive physical therapy on an individual basis two times per week for 30 minutes (id.).
On April 4, 2005, when the child was nearly two years seven months old, the child's mother provided consent for the EIP to notify respondent's Committee on Preschool Special Education (CPSE) of the child's potential eligibility to receive special education services (Parent Ex. W). Also on April 4, 2005, the child's mother consented to her daughter's referral to the CPSE and waived a transition conference (Parent Ex. Y).
The child's private speech-language therapist from the McCarton Center completed a speech-language progress report on April 8, 2005 (Parent Ex. U at p. 1). She reported that the child had made "great strides" in her receptive language since the onset of therapy and now imitated hand waving when an adult waved "bye-bye," responded to her name, and moved toward or looked at a familiar person or toy when named (id.). The child followed a variety of simple directives and identified body parts on herself, on another person, and on pictures (id.). The child was working on using more than one object in play, following a routine, demonstrating appropriate play and "pretend play" with a variety of objects and toys, identifying objects and pictures by use, and discriminating between "in," "on," and "out of" (id. at pp. 1-2). The clinician opined there was a large discrepancy between what the child understood and what she was able to verbalize or express (id. at p. 2). She reported the child vocalized with vowel-consonant combinations and sometimes used jargon speech as if communicating (id.). The child's emerging skills included imitating adult vocal play, animal sounds, and words that were unfamiliar, naming one or more objects or pictures, saying "no," and responding to the speech of others with a verbal reply using a word or jargon (id.). The evaluator questioned whether the child demonstrated oral motor planning problems indicating an apraxia of speech because the child did not repeat on request (id.). In the areas of oral motor and feeding, the child continued to demonstrate both hypersensitive and hyposensitive reactions to various textures and proprioceptive input and continued to exhibit decreased tone and strength in her jaw and lips (id.). The speech-language therapist recommended that the child receive speech-language therapy five times per week for 60 minutes on an individual basis (id. at p. 3).
Petitioners also obtained a private educational and behavioral evaluation and an occupational therapy evaluation from the McCarton Center (Parent Exs. S, T). The educational and behavioral evaluation was conducted by the educational ABA supervisor of the McCarton School, who reported that she provided the child with minor redirection, continuous interaction, a fast rate of instruction, and reinforcers throughout the testing, and the child's ability to cooperate and respond for an extended period of time in the testing environment was good (Parent Ex. T at p. 1). The child matched identical objects to a sample and picture to picture in a field of six (id.). She matched picture to object and object to picture independently in a field of three and sorted two simple and familiar nonidentical items into categories (id.). The evaluator reported that the child selected more than 25 pictures in an array of three and selected six pictures by function (id. at p. 2). She identified seven action pictures in a field of three, five shapes, and two colors (id.). Her imitation skills were variable and dependent upon her attention and motivation; however, the child reportedly imitated many gross motor and some fine motor skills (id.). In the area of receptive language skills, the evaluator reported findings consistent with those reported in the April 8, 2005 speech-language report (Parent Ex. T at p. 1; see Parent Ex. U at pp. 1-2). The evaluator recommended that the child be provided with a continuous 12-month program of intervention and opined that she would benefit from a highly structured, nurturing, predictable learning environment with an opportunity for one to one learning and support with frequent repetition to increase attention and reinforce language development (Parent Ex. T at p. 3).
The McCarton Center conducted an occupational therapy evaluation of the child on May 3, 2005 (Parent Ex. S). Administration of the Peabody Developmental Motor Scale - Second Edition (PDMS-2) yielded standard (and percentile) subtest scores of 8 (25) in stationary, 4 (2) in locomotion, 5 (5) in object manipulation, 9 (37) in grasping, and 5 (5) in visual motor integration (id. at p. 2). Her object manipulation, fine motor, visual perceptual, and gross motor skills were all determined to be below average (id. at p. 5). The evaluator utilized the caregiver questionnaire portion of the Infant/Toddler Sensory Profile to assess the child's sensory processing abilities (id. at p. 2, 4-5). The mother's responses to the questionnaire yielded scores indicating that the child demonstrated a "probable difference (slightly less than others)" with visual processing and a definite difference with oral sensory processing (id.). She demonstrated typical performance with auditory processing, tactile processing, and vestibular processing (id. at pp. 2, 4). The evaluator opined that the child's sensory processing and modulation difficulties were potentially extremely disruptive to her ability to learn and interact in her environment (id. at p. 5). In the area of self-care, the evaluator reported that the child removed her socks independently and attempted to pull them up after they were started on her toes and that she assisted with donning and doffing her pants over her hips for toileting (id.). The evaluator recommended that the child be provided with intensive occupational therapy services, five times per week for 45-minute sessions that focused on the sensory integrative approach (id.).
Petitioner forwarded the speech-language progress report and the completed McCarton Center evaluation reports to respondent's CPSE for its consideration (Parent Ex. M; see Parent Exs. S, T, U).
On May 20, 2005, the child's mother provided consent for respondent's CPSE to arrange for an initial multidisciplinary evaluation of the child and designated the Herbert G. Birch Early Childhood Center (Herbert Birch) to conduct the evaluation (Parent Ex. Q; Tr. p. 99). The social history, home language survey, and psychological evaluation were completed on May 20, 2005 (Parent Exs. N, O, P). The child's mother reported in her social history that her daughter often responded to her name and followed some single step directions for familiar activities (Parent Ex. P at p. 2). She maintained eye contact inconsistently (id.). When prompted, the child pointed to pictures and familiar objects (id.). The child's mother reported that although her daughter often vocalized without communicative intent, she vocalized a variety of sounds, used some word approximations, and sometimes imitated words (id.). The child engaged in simple interactive games, and enjoyed a variety of toys including books, cause and effect toys, and puzzles (id.). The child's mother indicated the child's adaptive living skills were below age expectancy (id.). Her hearing was within normal limits (Parent Exs. AA at p. 2; P at p. 2).
The Bayley Scales of Infant Development: Second Edition (BSID-II) was administered as part of the psychological evaluation of the child and yielded a mental development index (MDI) score of below 50, suggesting that her level of cognitive development was significantly delayed (Parent Ex. O at pp. 2, 4). Within the area of language and concept development, the child demonstrated scattered skills in the 8 to 14 month old level (id.). She inconsistently responded to her name and inconsistently pointed to several body parts, articles of clothing, and pictures of objects shown to her (id. at p. 2). She produced some vocalizations to indicate pleasure/displeasure, agreement, and interest (id.). The child's fine motor skills were estimated to be at the 19-month-old level (id. at pp. 2, 4). The mother's responses on the Vineland Adaptive Behavior Scales – Interview Edition revealed the child's adaptive levels of functioning to be in the low range in communication, daily living skills, socialization, and motor skills and yielded an overall adaptive behavior composite in the low range, described by the evaluator as a "mild deficit" (id. at p. 3). The evaluator opined the child would benefit from attending a special education preschool with a low student to teacher ratio to improve language and concept development, increase relatedness, and improve socialization and play skills (id. at p. 4).
On May 25, 2005, Herbert Birch conducted occupational therapy and physical therapy evaluations of the child (Parent Exs. K; L). The occupational therapist administered the Peabody Developmental Motor Scale – Second Edition (PDMS-2) and the Hawaii Early Learning Profile (HELP); however, no scores were provided (Parent Ex. K at p. 1). The occupational therapist reported that the child presented with low normal muscle tone in her upper and lower extremities and trunk musculature (id.). Her range of motion was within normal limits; however, a number of gross motor deficits were noted (id. at pp. 1-2). Her grasp patterns were immature (id. at p. 2). The child would not manipulate scissors; however, the evaluator opined she appeared to have some knowledge of them (id.). She determined the child's fine motor skills to be in the 22-month-old range (id.). It was difficult for the child to regulate her proprioceptive and vestibular reactions (id.). Occupational therapy was recommended to address the child's delays and enhance her function in the educational environment (id.).
The physical therapist evaluating the child reported that she required cues and redirection to participate in some of the gross motor activities but was able to maintain eye contact during the activities, and concluded that the child exhibited full range of motion, decreased muscle tone and strength, and decreased balance and appeared to exhibit some sensory problems with surface changes on her feet (Parent Ex. L at pp. 1-2). The child presented with decreased balance (id. at p. 2). Jumping and ball handling skills were areas of difficulty for her and she ascended and descended stairs one step at a time using a handrail (id.). The physical therapist determined the child's gross motor skills to be at a 20-month-old level with scattered skills above and below and opined the child would benefit from physical therapy (id.).
On June 3, 2005, respondent's CPSE obtained a speech-language evaluation of the child as part of its multidisciplinary evaluation (Parent Ex. J). The evaluator reported the child readily established eye contact upon being greeted (id. at p. 1). The child attended for short periods to the activities presented by the evaluator; however, when the activity involved a less concrete objective (e.g., the dollhouse), she required one to one assistance to maintain attention and perform the desired actions (id. at p. 2). The evaluator rated the child's attention to auditory input, in the form of speech and nonspeech sounds, as fair to poor (id.). The child demonstrated difficulty responding to requests for eye contact without physical direction; however, she made spontaneous eye contact and maintained eye contact well with the evaluator during singing activities (id.). The evaluator noted that in addition to eliciting a change in eye contact, hearing a song caused the child to cease nonfunctional vocal perseverations (id.). The child's use of gestures was mostly limited to those that were cued or modeled for her (id.). She pointed in imitation, touched objects to identify them upon request, and waved in response to hearing "bye-bye" (id.). The evaluator did not administer a formal articulation test but noted that the child's use of vowel sounds was limited to two to three different sounds (id. at p. 3). Consonant sound productions included but were not limited to /g,b,d,p,m,n/ in consonant-vowel (CV), vowel-consonant (VC), and consonant-vowel-consonant (CVC) combinations (id.). The child demonstrated a closed mouth posture at rest and her lip and jaw movements for speech production were limited in range (id.). A slight tongue protrusion was noted (id.). As measured by the Rosetti Infant-Toddler Language Scale (Rosetti)3 the overall language skills demonstrated by the child were determined to be typical of children at the nine to twelve month old level, however the evaluator noted the child demonstrated scattered skills up to the 21 month old level (id. at pp. 3-4). The child was able to give an object upon verbal request paired with a visual cue, looked at the evaluator in response to her name, identified three body parts and her shoes, and identified "dog" and "bed" during a dollhouse activity (id. at p. 3). The child seemed to vocalize to signify transitions, however, did not imitate words or vocalize with intent frequently (id.). The evaluator recommended speech-language therapy for the child (id. at p. 4).
A progress report dated June 26, 2005 from the child's EIP physical therapist indicated the child exhibited more than a 25 percent delay in gross motor function as measured by the Peabody Developmental Scales and clinical observation (Parent Ex. H at p. 2). The physical therapist reported that the child continued to require maximum assistance for "jumping" activities and exhibited problems with her gait (id.). The clinician recommended that the child continue to receive physical therapy on an individual basis two times per week for 30 minutes (id.).
An EIP progress report from the child's special educator dated July 8, 2005 indicated that the child had demonstrated significant progress in her receptive identification of pictures, matching, and receptive instructions (Dist. Ex. 7 at p. 2). Less progress was noted in the child's speech and language, response to her name, and eye contact (id.). The special educator noted that the child receptively identified approximately 100 pictures, matched identical and nonidentical pictures, sorted nonidentical objects into categories, and followed a "multitude of one step instructions" (id.). The child imitated ten gross motor actions that the educator noted required at least a month of intense teaching per skill (id.). The educator opined the child's most challenging area continued to be speech (id.). She reported that the child had a repertoire of approximately 15 words, all preferred items, which she used after being provided a model (id.). Eye contact and responding to her name continued to be a challenge for the child (id.). The educator used ABA techniques, including reinforcement of correct responses and approximations and "mand" training to teach skills to the child (id.). Communication and training were provided to petitioners through monthly team meetings to discuss the child's progress and behavior interventions; through parent training sessions held three times per month to teach petitioners techniques for eliciting requests for preferred objects from the child and ABA techniques for decreasing and increasing identified behaviors; and through the use of a communication notebook (id. at p. 3).
Respondent's CPSE convened on July 12, 2005 and August 1, 2005 to review the evaluation reports (Parent Ex. E). The CPSE determined the child eligible for special education programs and services to begin September 1, 2005 (Dist. Ex. 22). The CPSE classified the child as a preschool student with a disability and developed the child's individualized education program (IEP) for the 2005-06 school year (Parent Ex. E at p. 1). At the CPSE meetings, the child's mother requested a 12-month program for her daughter with 20 to 30 hours of ABA in school each week, speech-language therapy every day, occupational therapy every day, and additional home services (Tr. p. 85). The CPSE recommended that the child attend a 12-month special class with an 8:1:2 staffing ratio for five hours per day, five days per week (Parent Ex. E at p. 1). Additionally the child would be provided with the services of a one to one "management" paraprofessional and special education transportation by "mini van" (id.). The CPSE also recommended that the child receive individual occupational therapy three times a week, individual physical therapy three times a week, and individual speech and language therapy three times a week (id. at p. 20). At the first CPSE meeting, the CPSE recommended four possible placements (Tr. p. 85). The child's mother visited or contacted the four possible placements recommended by the CPSE, and found them all inappropriate for her daughter, including the CPSE's final recommendation of P.S. 176 (Tr. pp. 85-86; Parent Ex. B; see Dist. Ex. 25).
By letter dated August 10, 2005, the child's mother rejected the CPSE's recommended placement and program (Parent Ex. B). Her letter indicated that she disagreed with the program offered by respondent because the student to teacher ratio was 8:1; the program followed a nursery school curriculum; direct instruction totaled only one hour per day; speech services totaled only three times 30 minutes per week; occupational therapy services totaled only three times 30 minutes per week; and no home program was recommended (id.). The child's mother also advised that she was unilaterally placing her daughter at the McCarton School, obtaining supplemental related services and ABA instruction for the child, and would be requesting reimbursement from respondent for the costs of these services and her daughter's tuition costs at the McCarton School (id.).
By due process complaint notice dated September 8, 2005, petitioners, through their attorneys, requested an impartial hearing and alleged that respondent denied the child a free appropriate public education (FAPE) due to procedural and substantive deficiencies in the child's IEP (Parent Ex. A). Petitioners sought tuition reimbursement for the McCarton School, as well as ten hours of one to one extended day ABA therapy, one to one speech-language therapy two times per week for 45 minutes, and one to one occupational therapy one time per week for 45 minutes (id. at p. 2). Petitioners also sought a pendency order requiring respondent to continue the child's early intervention services as established by her last agreed upon IFSP for the duration of the due process proceedings (id.).
An impartial hearing convened on April 7, 2006 and concluded on April 20, 2006, after two days of testimony (Tr. pp. 1, 185). By decision dated August 3, 2006, the impartial hearing officer found that respondent offered the child a FAPE for the 2005-06 school year and denied petitioners' request for tuition reimbursement (IHO Decision, pp. 9-10). The impartial hearing officer also denied petitioners' request for pendency (id. at p. 9).
On appeal, petitioners seek a reversal of the impartial hearing officer's findings, request that respondent's recommended program be found inappropriate, that the McCarton School be found appropriate, and that respondent be ordered to reimburse petitioners for their daughter's tuition costs at the McCarton School for the 2005-06 school year and for the cost of supplemental related services and ABA instruction. Specifically, petitioners make the following assertions: 1) respondent's CPSE was improperly constituted; 2) the performance levels stated in the child's IEP were inappropriate because they were pretyped, ambiguous and inadequate; 3) the IEP's goals and objectives were vague and not objectively measurable; 4) the IEP contained no provision for parent training; 5) the CPSE did not perform a functional behavioral assessment (FBA) or develop a behavior intervention plan (BIP); 6) respondent failed to provide petitioners with "prior written notice" of the CPSE's recommended program; 7) respondent failed to consider the child's needs for assistive technology; 8) respondent's CPSE engaged in impermissible predetermination; 9) the impartial hearing officer gave undue weight to respondent's witnesses' testimony and ignored the petitioners' evidence; 10) the impartial hearing officer was not qualified and acted with bias; and 11) under pendency, the child is entitled to the level of services that she received in early intervention. Respondent denies petitioners' assertions and requests that petitioners' appeal be dismissed in its entirety.
For the reasons set forth herein, I concur with the impartial hearing officer's decision that the program offered by respondent to petitioners' daughter for the 2005-06 school year was appropriate.
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ; see Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir. 2006]). A FAPE includes 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[D]; 34 C.F.R. § 300.17;4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532). The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 126 S.Ct. at 532; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192). While school districts are required to comply with all IDEA procedures, 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]). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 34 C.F.R. § 300.513[a]). Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][E][iii]).
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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. §§ 300.114, 300.116; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S.Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).
In the instant case, petitioners raise a number of procedural and substantive complaints about the IEP and have the burden of proving that the IEP is inappropriate.5
Initially, I will address petitioners' contention that the CPSE was improperly constituted. The Regulations of the Commissioner of Education provide that the CPSE must include: (i) the parents of the preschool child; (ii) at least one regular education teacher of the child (if the child is or may be participating in the regular education environment); (iii) at least one special education teacher of the child or, if appropriate, at least one special education provider of the child; (iv) a representative of the school district who is qualified to provide or supervise the provision of special education; (v) an additional parent of a child with a disability residing in the school district or a neighboring school district and whose child is enrolled in a preschool or elementary level education program; (vi) an individual who can interpret the instructional implications of evaluation results; (vii) other persons having knowledge or special expertise regarding the child, as designated by the school district or the parents; (viii) for a child in transition from an early intervention program, the appropriate professional designated by the agency that has been charged with the responsibility of the preschool child; and (ix) a representative of the municipality of the preschool child's residence (8 NYCRR 200.3[a]).
The record does not support petitioners' assertion that the composition of the CPSE was improper due to the absence of a school psychologist, regular education teacher, special educator or related services provider from the Department, education evaluator, school social worker, an individual who can interpret the instructional implications of the evaluations, and a representative from respondent's recommended placement. As indicated by the IEP, participants who signed in at the CPSE meeting included the child's mother, the district representative, a special education teacher, an additional parent member, and the child's service coordinator from EIP (Parent Ex. E at p. 2). The record also indicates that the CPSE included the participation of an individual who was capable of interpreting the instructional implications of evaluation results. The child's mother testified that although she did not sign her name on the IEP, the psychologist who conducted the Herbert Birch assessment was present at the first CPSE meeting to discuss the child's evaluation reports (Tr. pp. 99-100). There is no evidence in the record to indicate that the psychologist's absence from the second meeting was detrimental to the development of the IEP. The IDEA, its implementing regulations, and state regulations do not mandate the participation of a school psychologist, school social worker, or representative from the district's recommended placement. There is no requirement that the special education teacher or related services provider be from the school district. I also conclude that a regular education teacher was not required to attend the child's CPSE meetings because the IDEA and federal and state regulations excuse participation of a regular education teacher when the child is not participating in the regular education environment (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.321[a]; 8 NYCRR 200.3[a][ii]). For these reasons, I find the CPSE was properly constituted and decline to declare the IEP a nullity. Moreover, there was no showing that the composition of the CPSE resulted in a denial of educational benefit or opportunity for the child nor did it significantly impede parental participation in the formation of the IEP.
Petitioners further assert that their daughter's IEP was procedurally flawed because respondent failed to give written notice of the reasons for the CPSE’s rejection of petitioners' request that their daughter receive 20-30 hours of ABA in school each week, speech-language therapy five times a week, occupational therapy five times a week, and additional home services. In support of their contention, petitioners cite to the IDEA and federal and state regulations that require the CPSE to provide parents with "prior written notice" of its recommended educational placement for the child, including a description of the other options that the CPSE considered and the reasons why those options were rejected (20 U.S.C. § 1415[c]; 34 C.F.R. § 300.503[b]; 8 NYCRR 200.5[a][iii]). The record reveals that respondent provided petitioners with written notice of its recommendation for the child, which the child's mother acknowledged receiving in her August 10, 2005 letter to respondent (Dist. Ex. 24, Parent Ex. B). Although this written notice did not state the reasons for the CPSE’s rejection of petitioners' requests, I decline to find that it resulted in a denial of FAPE. There is no showing that it (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (see 20 U.S.C. § 1415[f][E][ii]; 34 C.F.R. § 300.513[a]).
Next, I turn to petitioners' complaints about the content of their daughter's proposed IEP. Petitioners argue that the IEP is deficient in that it fails to accurately report their child's present levels of performance, and provides present levels of performance that are inadequate and too ambiguous to assess the child's educational needs. Petitioners further contend that the goals and objectives on the proposed IEP were inappropriate, not objectively measurable and vague. They also allege that respondent "predetermined" their daughter's program for the 2005-06 school year and thereby denied them the opportunity to meaningfully participate in the development of their daughter's IEP.
In developing an IEP, the IEP team must consider: "(i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child" (20 U.S.C. § 1414[d]A]). The IDEA requires that an IEP include a statement of the child's present levels of academic achievement and functional performance, including a description of how the child's disability affects his or her involvement and progress in the general curriculum; and for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities (20 U.S.C. § 1414[d][A][i]; 34 C.F.R. § 300.320[a]; see also 8 NYCRR 200.4[d][i]). An IEP must also include measurable annual goals, including academic and functional goals, designed to meet the child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (20 U.S.C. § 1414[d][A][ii]; 34 C.F.R. § 300.320[a][i]); see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the child's progress towards the annual goals will be measured and when periodic reports on the child's progress toward meeting the annual goals will be provided (20 U.S.C. § 1414[d][A][iii]; 34 C.F.R. § 300.329[a]; 8 NYCRR 200.4[d][iii][b],[c]).
After reviewing the child's IEP in the instant case, I find that it accurately reflects the results of recent evaluations and properly identified the child's needs. At the time of the child's initial CPSE meeting in July 2005, in addition to the initial evaluation completed by Herbert Birch that included a social history, psychological, speech-language, occupational therapy, and physical therapy evaluations; respondent's CPSE had been provided with a speech-language progress report completed in April 2005 by the child's private therapist, evaluation reports from private educational and occupational therapy evaluations obtained by petitioners at the McCarton Center in April and May 2005, a progress report completed by the child's EIP physical therapist completed in June 2005, and a progress report from the child's EIP special educator completed in July 2005 (Parent Exs. H, J, K, L, N, O, P, R, S, T, U; Dist. Ex. 7). These evaluations and updated progress reports identified the child’s particular academic, developmental and functional needs at the time the CPSE developed the child's IEP for the 2005-06 school year.
The child's present levels were properly described in the IEP and were reflective of the evaluative reports. For example, the IEP stated that the child presented with significant language and cognitive delays, that her response to her name was variable, that she did not consistently use true words or gestures to communicate, and that she often vocalized without communicative intent (Parent Ex. E at p. 3). The child's private speech-language pathologist reported in April 2005 that the child "sometimes used jargon speech as if communicat[ing]" and that her emerging skills included imitating adult vocal play, animal sounds, and words that were unfamiliar, naming one or more objects or pictures, use of "no," and responding to the speech of others with a verbal reply using a word or jargon (Parent Ex. U at p. 2). Petitioner reported in her social history taken by Herbert Birch that although her daughter often vocalized without communicative intent, she vocalized a variety of sounds, used some word approximations, and sometimes imitated words (Parent Ex. P at p. 2). The psychologist from Herbert Birch reported in her evaluation report that the child produced some vocalizations to indicate pleasure/displeasure, agreement, and interest (Parent Ex. O at p. 2). In a speech-language evaluation report the evaluator opined the child seemed "to vocalize to signify transitions," but that she did not frequently vocalize with intent (Parent Ex. J at p. 3). The child's EIP special educators reported the child had a repertoire of approximately 15 words, all preferred items, which she used after being provided a model (Dist. Ex. 7 at p. 2).
As to the child's other needs, the IEP stated that the child required a small, highly structured class, low student to teacher ratio, visual supports, and a language intensive environment (Parent Ex. E at p. 3). The IEP indicated that the child's strengths and weaknesses in the area of social emotional development included a short attention span and need for frequent redirection (id. at p. 4). She enjoyed a variety of toys and engaged in simple interactive games, but preferred self-directed activities (id.). She was described by her mother as "easy going" and able to express her likes and dislikes (id.). The proposed IEP also contained specific objectives to address the child's attending skills, expressive language, daily living skills, and socialization skills (id. at pp. 6-17).
As far as the child's goals, the record does not support the testimony of the associate educational director of the McCarton School that the child did not have the prerequisite skills needed to work on many of the goals in the proposed IEP (see Tr. pp. 227-32). For example, the educational director testified that in September 2005 the child was unable to imitate simple gross motor movements, which she indicated would be a prerequisite skill for the goal related to imitation of body movements on the child's proposed IEP (Tr. p. 227; see Parent Ex. E at p. 6). Yet, the child's EIP providers reported in January 2005 that the child consistently imitated at least five gross motor tasks (Parent Ex. Z at pp. 2, 7). The educational ABA supervisor from the McCarton School, who evaluated the child in April 2005, reported that although the child's imitation skills were variable and dependent upon her attention and motivation, she imitated many gross motor and some fine motor tasks (Parent Ex. T at p. 2). The child's EIP special educator reported in her progress report dated July 8, 2005 that the child imitated 10 gross motor actions, noting that the child had required at least a month of intense teaching per action (Dist. Ex. 7 at p. 2).
In reference to the goal in the child's proposed IEP related to sorting objects and pictures, the associate educational director of the McCarton School testified that in September 2005 the child "wasn't effectively matching – she was just beginning to match objects and pictures" (Tr. p. 229; see Parent Ex. E at p. 6). She further testified that the child needed to learn to match "first object to object. The next is picture to picture. The next is picture to object, then object to picture, then nonidentical items" (Tr. p. 229). However, in January 2005, the child's EIP providers reported the child matched more than 10 different objects and inserted 12 shapes in a shape sorter (Parent Ex. Z at p. 7). In her evaluation report, the educational ABA supervisor reported the child matched identical objects to a sample and picture to picture in a field of six as well as matched picture to object and object to picture independently in a field of three and sorted two simple and familiar non-identical items into categories (Parent Ex. T at p. 1). The evaluator reported the child selected more than 25 pictures in an array of three and selected six pictures by function, seven action pictures in a field of three, five shapes, and two colors (id. at p. 2). The child's EIP special educator reported that in July 2005 the child identified approximately 100 pictures, matched identical and nonidentical pictures, and sorted nonidentical objects into categories (Dist. Ex. 7 at p. 2).
The associate educational director of the McCarton School also testified to the appropriateness of the goal to "dress/undress independently" indicating that due to the child's motor planning difficulties, expecting the child to achieve the goal at an independent level was unrealistic at the current time (Tr. p. 232; see Parent Ex. E at p. 12). However, the occupational therapist who evaluated the child at the McCarton Center in May 2005 reported that the child removed her socks independently and attempted to pull them up after they were started on her toes and that she assisted with donning and doffing her pants over her hips for toileting (Parent Ex. S at p. 5). Although a private placement is not required to use or develop an IEP, I also note that the McCarton School developed an IEP for the child for the 2005-06 school year which includes a similar goal stating "[the child] will improve her daily living skills" with short term objectives that include "pants on and off" and "socks on and off" and require the child to "independently undress and dress, including fasteners, in an appropriate time period" (Parent Ex. F at pp. 7-8).
The assistant principal of respondent's P.S. 176 testified that the proposed placement for the child was a language-based classroom with ABA programming (Tr. p. 33). ABA is a teaching methodology or approach that includes discrete trial instruction, or one to one learning, where components of a skill are broken down and taught sequentially using positive reinforcement and shaping procedures; as well as, natural environment, or incidental, teaching where skills are worked on across environments (Tr. pp. 195, 198). The classroom proposed by respondent for the child uses ABA methodology throughout the day but the discrete trial component of ABA is determined individually for each child and provided daily for the specific amount of time needed by the child (Tr. pp. 39-40).6 The record reveals that one to one discrete trial instruction could be provided for up to or more than two and a half hours per day if needed (Tr. p. 40). The ABA supervisor from respondent's P.S. 176 testified that when a new child came into the classroom, he would begin by doing an assessment of the child, and "from there we would start a program7 for the child, and then train the staff specifically in running those programs" (Tr. p. 44). Within the classroom proposed by respondent, children work individually with not only their assigned one to one paraprofessional, but also with the teacher, the assistant, and sometimes with the ABA supervisor in order to learn to generalize skills across people and environments (Tr. p. 36). The classroom teacher is responsible for overseeing each child's program but the ABA supervisor is responsible for "checking in and going over reviewing data and reviewing the books and programs for that student" (Tr. p. 44). The ABA supervisor testified that the training he provided to the one to one paraprofessionals includes, in addition to conducting one to one instruction or "run[ning] the program," carrying over the ABA principles outside of the one to one setting and applying them at other times such as when the child is in a music class or during transitional times (Tr. p. 45). He also testified that a new child coming into the school would be assigned to a trained paraprofessional (Tr. p. 58). The ABA supervisor observes classrooms on a daily basis, assists the teachers as needed regarding any educational and behavioral problems in the classroom, and submits data collected in the classrooms to the assistant principal (Tr. pp. 50, 71).
Based on the foregoing, I find that the record demonstrates that very specific "programs" would have been developed and implemented for the child in respondent's proposed placement (Tr. p. 44). The goals and objectives set forth in the proposed IEP provide a framework for further refinement by the classroom personnel responsible for overseeing the child's program including her one to one discrete trial instruction. Although not required by the IDEA, as amended, the short term objectives as written provide the requisite specificity to enable the child's teachers and petitioners to understand the CPSE's expectations with respect to each annual goal and what the child would be working on over the course of the school year (see W.S. ex rel. C.S. v. Rye City Sch. Dist., 2006 WL 2771867 [S.D.N.Y. 2006]; Application of the Bd. of Educ., Appeal No. 04-031; Application of a Child with a Disability, Appeal No. 03-102; Application of the Bd. of Educ., Appeal No. 02-025; Application of a Child with a Disability, Appeal No. 99-92). For these reasons, I conclude that the IEP properly included a statement of the child's present levels and measurable annual goals.
I also find no basis in the record for petitioners' contention that respondent "predetermined" their daughter's program for the 2005-06 school year by allegedly presenting a draft IEP at the beginning of the first CPSE meeting. It is permissible under the IDEA for school district personnel to bring a draft IEP to the IEP meeting, provided the parents are informed it is a draft subject to review and parents have the opportunity to make objections and suggestions (see Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Rye City Sch. Dist., 2006 WL 2771867 at *12 [a school district should not be precluded from suggesting an outcome at a CSE meeting]; Application of a Child with a Disability, Appeal No. 05-087; Application of a Child with a Disability, Appeal No. 02-029; Application of a Child with a Disability, Appeal No. 01-073). As previously discussed, the record reveals that the CPSE reviewed evaluative reports, including private evaluations obtained by petitioners, to determine the child's needs and develop goals to meet the child's needs. The child's mother attended and participated in both CPSE meetings. She contributed to the formation of the child's IEP, as evidenced by the CPSE adding a one to one paraprofessional for the child in response to her request at the August 2005 CPSE meeting (Tr. p. 106). The child's mother also had the opportunity to visit the proposed placements before the finalization of the IEP (Tr. pp. 85-86; Parent Ex. B). Under these circumstances, there is inadequate evidence to conclude that petitioners were prevented from meaningfully participating in the formulation of their daughter's IEP or that respondent's CPSE engaged in impermissible predetermination.
With respect to petitioners' assertion that the IEP did not contain any provision for parent training, state regulations provide for parent counseling and training for the purpose of enabling parents of children with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Parent counseling and training is defined as: "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]). Here, the record reflects that petitioners have received extensive parent training in the past and have been actively involved in their child's education, communicating regularly with her teachers and service providers (see Tr. pp. 136-37; Parent Ex. Z at pp. 2, 3, 7; Dist. Ex. 7 at p. 3). The child's mother testified that home services were discussed at the CPSE meeting, and it was agreed that she could later request home services (Tr. pp. 106-07). The record does not reflect that respondent was unwilling to provide parent training and the record reflects that respondent was agreeable to providing additional home based services. Thus, under these circumstances, I decline to find that the failure to include parent training in the IEP denied a FAPE to the child (see Application of a Child with a Disability, Appeal No. 05-076).
I also find no basis for petitioners' assertion that respondent failed to provide their child an FBA or BIP even though she had a variety of interfering behaviors. An FBA is warranted for children whose behavior impedes their learning or that of others (20 U.S.C. § 1414[d][B][i]; 8 NYCRR 200.4[b][v]; 8 NYCRR 200.4[d][i]). An FBA is
…the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.
(8 NYCRR 200.1[r]).
The record reflects that the child responds to refocusing and redirection (Tr. pp. 235-39; 285). There is no indication that any of the child's stereotypical behaviors that occur are unresponsive to refocusing or redirection; or that with refocusing and redirection, the stereotypical behaviors interfere in any way with the performance of either the child herself or other children. Moreover, an integral aspect of conducting an FBA is determining how a child's behavior relates to the environment in which it occurs. At the time of the development of the child's proposed IEP, the CPSE did not yet know whether, in her new environment, the child would engage in behavior that impeded learning; therefore, I find that an FBA would have been premature because the child has not attended the recommended program and placement (see Application of a Child with a Disability, Appeal No. 04-033).
Petitioner further argues that respondent failed to recommend any assistive technology device or services even though their child was in need of and using an augmentative communication device and reference specifically the picture exchange communication system (PECS). PECS is a system of teaching nonverbal people to spontaneously initiate communication by exchanging picture symbols (Application of the Bd. of Educ., Appeal No. 02-033). The assistant principal of respondent's P.S. 176 testified that the proposed placement for the child was a language-based classroom with ABA programming (Tr. p. 33). She also testified that each of the children used a PECS book for communication (id.).8 Under these circumstances, I find petitioner's contention that the NYCDOE failed to recommend any assistive technology device or services to be without merit.
In summary, any procedural errors asserted were either not supported by the record, or did not rise to the level of a denial of FAPE. There is no showing that any procedural error impeded petitioners from meaningfully participating in the formulation of their daughter's IEP (see Cerra, 427 F.3d at 194). I also conclude that the IEP was reasonably calculated to enable the child to receive educational benefit (Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006] [citing to J.R. v. Bd. of Educ. of the City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 n.13 [S.D.N.Y. 2004]; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021). I, therefore, concur with the impartial hearing officer's finding that respondent offered the child an appropriate program for the 2005-06 school year. Having determined that the child was not denied a FAPE for 2005-06 school year, it is not necessary for me to consider the appropriateness of the program petitioners obtained for their daughter, or whether the equities support their claim for tuition reimbursement (see Voluntown, 226 F.3d at 66).
I also concur with the impartial hearing officer that the child is not entitled to the early intervention services contained in her 2004-05 IFSP as her pendency placement for the duration of the due process hearings. I have previously determined that the pendency provision in Part B of IDEA (20 U.S.C. § 1415[j]) does not apply when a child is transitioning from a program developed under Part C of the IDEA (see Application of the Bd. of Educ., Appeal No. 06-009). The pendency provision contained in Part B of the IDEA provides:
[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
(20 U.S.C. § 1415[j]; see 34 C.F.R. § 300.518; N.Y. Educ. Law § 4404[a]; 8 NYCRR 200.5[m]). Here, petitioners' daughter has never previously had an IEP, i.e., an "educational placement," under the IDEA. In such an instance where there is no "current educational placement," the second clause of the statutory pendency provision allows for the child's placement in the proposed public school program as his or her pendency placement for the duration of the proceedings, if the parent consents. Petitioners have rejected respondent's proposed program and seek a pendency order requiring respondent to continue the child's early intervention services.
The child is no longer eligible for early intervention services, due to her age and, additionally, petitioners elected to transition the child to preschool special education. Generally, a child's eligibility for early intervention services ends as of his or her third birthday (see 20 U.S.C. § 1432[A]; 34 C.F.R. § 303.16[a]); however New York State law provides that children in early intervention programs who are evaluated by the district's CPSE before their third birthday and found to be eligible for preschool educational services under the IDEA, and turn three years of age on or after the first day of September, are eligible to continue receiving early intervention services until the second day of January of the following calendar year (N.Y. Pub. Health Law § 2541[a][ii]). Petitioners' daughter turned three after September 1st (Dist. Ex. 19). Following the CPSE's determination that the child was eligible to receive preschool special education programs and services (Dist. Ex. 22), petitioners chose to discontinue their child's early intervention services, although at that time she was still eligible to remain in the EIP and receive services as designated on her IFSP.
As a final matter, after reviewing the entire transcript of the hearing, including the impartial hearing officer's interaction with the parties and the text of her decision, I find no evidence to support petitioner's contention that the impartial hearing officer was not qualified to serve or acted with bias or prejudice against petitioners. Although petitioner disagrees with the conclusions reached by the impartial hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the impartial hearing officer (Application of a Child with a Disability, Appeal No. 06-013; Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).
I also find no basis for petitioners' assertion that the impartial hearing officer gave undue weight to respondent's witnesses' testimony. Petitioners improperly attempt to shift the burden of proof to respondent by alleging that none of respondent's witnesses testified to the appropriateness of its recommended program (see Pet. ¶ 25). Petitioners bear the burden of proving the inappropriateness of respondent's recommended program (Schaffer, 126 S.Ct. at 532). Petitioners presented the testimony of witnesses who discussed their daughter's progress at the McCarton School. Evidence of the alleged appropriateness of a private school placement does not establish that the program offered by a school district is inappropriate (see, e.g., M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *8 [S.D.N.Y. 2002]; Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037 [3d Cir. 1993]; Application of a Child with a Disability, Appeal No. 06-062; Application of a Child with a Disability, Appeal No. 06-054).
THE APPEAL IS DISMISSED.
Albany, New York
November 20, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 I note that the record contains multiple duplicative exhibits. For purposes of this decision, only Parent exhibits were cited in instances where both a Parent and District exhibit were identical. I remind the impartial hearing officer that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][xii][c]).
2 The record reflects that the McCarton School, a non-profit educational provider, and the McCarton Center, a private practice offering psychological evaluations, medical testing and services such as speech therapy, OT and ABA services, are separate entities (Tr. pp. 272-73).
3 The evaluator incorrectly reported this assessment tool as the Rosetti Infant-Toddler Play Scale (see Parent Ex. J at p. 3).
4 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
5 The impartial hearing officer incorrectly placed the burden on respondent to demonstrate the appropriateness of the IEP (IHO Decision, pp. 7-8).
6 The record reads, "[t]he (unintelligible) child component of ABA is done individually" (Tr. p. 40), however, from the context it appears it should have read: "the 'discrete trial' component of ABA is done individually."
7 "Program" or "programs" is used throughout the record to refer to the specific behaviorally based instruction routines or lessons developed for children receiving ABA based services (see Tr. p. 33).
8 I note that the transcript refers to "text" when it appears from the context that it should indicate "PECS".