The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, 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 petitioner, Gary S. Mayerson, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel
Petitioner appeals from that portion of the decision of an impartial hearing officer which denied his request to be reimbursed for his son's tuition cost at the West End Day School (West End) and a portion of the cost of privately obtained applied behavioral analysis (ABA) services for the 2005-06 school year. Respondent cross-appeals from that portion of the decision of an impartial hearing officer which ordered respondent to reimburse petitioner for a portion of the cost of privately obtained ABA services. The appeal must be dismissed. The cross-appeal must be sustained in part.
At the commencement of the impartial hearing on August 8, 2006, the child was seven years old and no longer attending West End (Tr. p. 270). The Commissioner of Education has not approved West End as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]). The child's eligibility for special education and related services as a child with autism is not in dispute (Parent Ex. A; see 8 NYCRR 200.1[zz]).
The record is sparse regarding the child's early educational history. In approximately March 2001, a developmental pediatrician from Mt. Sinai Hospital reportedly determined the child met the criteria for a diagnosis of a pervasive developmental disability, not otherwise specified (PDD-NOS) (Tr. p. 29). The child began to receive intervention services at that time (Tr. pp. 30, 138).
During the 2004-05 school year, the child attended a general education kindergarten in respondent's Public School 75 (P.S. 75) accompanied by a one-to-one special education teacher who provided him with special instruction utilizing an ABA methodology within the classroom (Tr. p. 140; Parent Ex. C at pp. 1, 3).1 The child received speech-language therapy, private occupational therapy (OT) paid for by respondent through a related services authorization, private physical therapy (PT), and private one-to-one ABA instruction at home (Parent Ex. C at p. 1). During summer 2005, the child attended a summer camp at West End accompanied by a private special education teacher (Parent Exs. C at p. 3; H at p. 2).
In a progress report dated June 24, 2005, the child's occupational therapist noted that the child presented with significant sensory processing delays that interfered with his ability to filter extraneous distractions from his environment (Parent Ex. E). The child wrote letters and numbers correctly and demonstrated appropriate cutting skills with scissors (id.). Although the child was able to manipulate buttons and snaps, he was not consistent with doing so on his own clothing (id.). He was able to read two-step directions and follow them to complete a tabletop activity but demonstrated difficulty with auditory instructions (id.). The child required frequent support and redirection to maintain his attention on the relevant topic during social conversations (id.). He exhibited motor planning deficits and required frequent practice and opportunities to generalize learned motor skills in order to maintain them (id.). The occupational therapist recommended continued OT in school with home consultation as well as exposure to a sensory gym to address the child's sensory processing deficits (id.). The OT progress report indicates that new goals were developed for the child's 2005-06 IEP (id.); however, these goals are not contained in the record.
In a PT clinical summary dated July 21, 2005, the child's physical therapist reported that administration of the Peabody Developmental Motor Scale - Second Edition (PDMS-2) yielded an age equivalent score of 38 months in locomotor abilities, indicating a greater than 50% delay in the child's gross motor abilities (Parent Ex. D at p. 1). The child's PT sessions consisted of therapeutic exercise, dynamic balance activities, interactive ball play activities, and neuromuscular reeducation with an emphasis on improving his trunk strength, mobility, and control; his upper body strength; and his balance and coordination (id.). The physical therapist reported that the child's muscle tone, running endurance, and the quality of his movements in running had improved (Parent Ex. D at pp. 1-2). The child needed assistance on stairs and lost his balance when hopping without support (Parent Ex. D at p. 2). His attention for interactive play was determined to be low (id.). The physical therapist recommended that the child continue to receive PT services and reportedly developed goals for the child's 2005-06 IEP (id.). The PT clinical summary indicates that new goals were developed for the child's 2005-06 IEP (id.); however, these goals are not contained in the record.
An educational progress report dated July 25, 2005 indicated the child had made progress in many areas of development but that he continued to exhibit significant delays (Parent Ex. C at p. 1). The role of the progress report's author with respect to the child is not clear from the report. According to the author, the child reportedly had learned to read, had acquired many sight words, was able to decode words and sentences, and was able to spell and write most phonetic and sight words (Parent Ex. C at pp. 1-2). He demonstrated difficulty in reading comprehension, drawing conclusions, predicting outcomes, and determining emotional reactions of characters (Parent Ex. C at p. 2). The child was able to identify coins and the date on the calendar including day, month, date, and year (id.). The progress report indicated that although the child had made gains on concrete academic tasks, these skills had been taught to him in a very structured and systematic manner, and that due to his distractibility by both internal and external stimuli, he required persistent redirection and repetition (id.). The child was described as often withdrawn during group lessons and requiring constant redirection to remain focused (Parent Ex. C at p. 3). The child exhibited frequent verbal and motor stereotypy (id.). He only imitated inappropriate and maladaptive behaviors that resulted in negative attention (id.). The author opined that although the child responded to frequent reminders, he was unable to regulate inappropriate behavior independently and was not able to function in a large class setting without a one-to-one special education teacher utilizing ABA strategies with him (id.). For the 2005-06 school year, the author recommended that the child be placed in a small special education classroom with individual assistance, a high staff to student ratio, motivational systems, and high rates of repetition, and that he receive speech-language therapy, OT, and 40 hours of one-to-one ABA (Parent Ex. C at pp. 1, 4-5).
Respondent's CSE convened on August 8, 2005, prior to the child entering the first grade, and developed an individualized education program (IEP) for the 2005-06 school year (Parent Ex. B). The child's academic performance and learning characteristics indicated that, based on education reports and teacher input, the child was reading at a first grade level and was able to spell and write most of the phonetic and sight words he had learned (Parent Ex. B at p. 3). In mathematics, the child was able to identify numbers 1-100, count objects, identify simple addition facts by rote, and make comparisons based on size (id.). The child was reported to have made progress in speech and language; however, his pragmatic skills continued to be delayed and he had difficulty following a conversation with more than one person (id.). The child's social and emotional performance was described as inconsistent (Parent Ex. B at p. 4). He was reported to demonstrate interest in class activities, his teacher, and peers; however, he did not seek out others to play, did not respond to his peers and teacher without prompts, and he experienced difficulty during group activities (id.). The child imitated inappropriate behaviors of peers, demonstrated frequent verbal and motor stereotypy, engaged in self-stimulatory behaviors, and needed constant redirection to remain focused and on task (id.). The child's behavior interfered seriously with instruction, requiring additional adult support (id.). The CSE recommended a 12-month program consisting of a 6:1+1 special class in a specialized school and related services of a full time behavior management paraprofessional, speech-language therapy, PT, OT, and counseling (Parent Ex. B at pp. 1, 2, 32, 34). The proposed IEP reflected that the CSE considered several other programs that it rejected because, although the child's academic skills were noted to be commensurate with grade level, he demonstrated significant difficulties with social relatedness and required prompts, reminders, and much refocusing throughout the school day (Parent Ex. B at p. 33). The proposed IEP consisted of 42 pages, containing a large number of goals and corresponding objectives to address the child's maladaptive behaviors and his needs in language and communication, cognitive and conceptual skills, reading, functional math, gross and fine motor skills, activities of daily living, and social skills (Parent Ex. B at pp. 7-30). The proposed IEP also contained a behavior intervention plan (Parent Ex. B at p. 31). The location for the child's proposed placement was not identified.
The record reflects that, on August 9, 2005, petitioner reportedly spoke with respondent's CSE chairperson for Region 10, who informed him that the child would be placed in a school similar to respondent's P811, also known as the Mickey Mantle School (Tr. p. 40; Parent Ex. U at p. 5). The Region 10 CSE chairperson provided the name and phone number of the P811 principal to petitioner and recommended an additional school for his consideration (Parent Ex. U at p. 5). Petitioner contacted P811 on August 9 and 12, 2005, but was unable to arrange a "walk through" due to the lateness of the date (id.).
Petitioner testified that he informed respondent at the August 8, 2005 CSE meeting that, if he did not receive a list of respondent's recommended placements before the start of the 2005-06 school year, he planned to place his son at West End and expected reimbursement from respondent (Tr. pp. 36-38). Petitioner then informed respondent by letter dated September 20, 2005 that, due to respondent's failure to provide a recommended placement for their child, he was unilaterally placing the child at West End for the 2005-06 school year and expected full reimbursement from respondent (Parent Ex. U at p. 1).
The record reflects that the child began the first grade at West End on September 7, 2006 (Parent Ex. R at p. 1). A parent-teacher communication log indicated that the child "had a good first week" at West End and was reported to be adjusting to the classroom and following the rules (id.). A communication log entry dated September 15, 2006 reported that, at times, the child put his hands on other children although he did not hit or hurt them (Parent Ex. R at p. 3). Subsequent communication log entries from September 16, 2006 through October 6, 2006 indicated that the child continued to exhibit inappropriate touching of other children, as well as running out of the classroom, difficulty following classroom rules, "calling out" behavior, and difficulty staying focused (Parent Ex. R at pp. 3-12).
Prior to the August 8, 2005 CSE meeting, petitioner requested an impartial hearing by due process complaint notice dated July 5, 2005 (July 5, 2005 IHO Ex. 1). I note that petitioner's due process complaint notice dated July 5, 2005 was a general notice requesting impartial hearings for 58 students, including the child (July 5, 2005 IHO Ex. 1). This notice was procedurally defective because it failed to include: 1) the address of the residence of the child; 2) the name of the school the child was attending; and 3) a description of the nature of the child's problem, including facts relating to the problem (see 34 C.F.R. § 300.508[b]; 8 NYCRR 200.5[i]).2 By letter dated October 6, 2005, petitioner's attorney submitted an amended due process complaint notice requesting an impartial hearing for the 2005-06 school year alleging that respondent failed procedurally and substantively to comply with its statutory obligation to provide petitioner's son with a free and appropriate public education (FAPE) delivered in the child's least restrictive environment (LRE) and that petitioner had secured services and programming that were appropriate for the child (Parent Ex. A).3 Although petitioner's due process complaint notice dated October 6, 2005 provided more detailed information specific to the child, it did not include the name of the school the child was attending (Parent Ex. A; see 34 C.F.R. § 300.508[b]; 8 NYCRR 200.5[i][iii]). I remind petitioner's attorney to comply with the procedural requirements pertaining to the content of a due process complaint notice as set forth in state and federal regulations.
An impartial hearing commenced on August 8, 2006 and concluded on November 2, 2006, after two days of testimony. At the impartial hearing, petitioner, the private special education teacher who provided home-based ABA services (home-based ABA provider), and the private one-to-one provider of school-based ABA services (school-based ABA provider) testified, and documentary evidence was introduced by petitioner and the impartial hearing officer.
By decision dated November 16, 2006, the impartial hearing officer found, as respondent conceded, that respondent failed to offer the child a FAPE for the 2005-06 school year (IHO Decision at pp. 6-7). However, the impartial hearing officer found that petitioner's unilateral placement was inappropriate (IHO Decision at pp. 7-8). The impartial hearing officer found that, since petitioner was aware of the child's significant behavioral needs, his placement in a school without the support of a full-time behavior management paraprofessional did not meet the child's significant behavioral needs (IHO Decision at pp. 8-9). The impartial hearing officer further found that petitioner's addition of a privately obtained 1:1 ABA therapist for two hours per day midway through the school year did not make the inappropriate placement appropriate (IHO Decision at p. 9). Although finding petitioner's placement of the child at West End was not appropriate, the impartial hearing officer found that equitable considerations warranted an award of a portion of the home-based ABA and parent counseling services that the home-based ABA provider provided during the 2005-06 school year; however, he made no express finding that the home-based ABA or parent counseling services were appropriate (IHO Decision at pp. 10-11).
Petitioner appeals and asserts that the impartial hearing officer erred by subjecting petitioner to an overly strict and burdensome standard of proving the appropriateness of the unilateral placement. Petitioner also argues that the impartial hearing officer erred by determining that petitioner's privately obtained school-based ABA services that supplemented the unilateral placement were not reimbursable. Petitioner further asserts that the impartial hearing officer arbitrarily reduced the award of home-based ABA. Petitioner seeks reimbursement of the costs for tuition at West End, school-based ABA services, and the balance of home-based ABA services not awarded for the 2005-06 school year.
Respondent cross-appeals and asserts that the impartial hearing officer erred by awarding petitioner partial reimbursement for home-based ABA services because the impartial hearing officer did not make the requisite finding that such services were appropriate and petitioner did not establish the appropriateness of such services.
The 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 FAPE (20 U.S.C. § 1400[d][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the child's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 531, 536-37 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a child 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; 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 offered the child a FAPE (id.; see 20 U.S.C. § 1412[a][C][ii]; 34 C.F.R. § 300.148).
The first step is to determine whether the district offered to provide a FAPE to the child (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a child 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 child to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).
As noted above, respondent conceded the first criterion of the Burlington analysis when it conceded at the impartial hearing that it failed to offer the child a placement (Tr. p. 284). Respondent does not appeal from the impartial hearing officer's determination that it failed to offer the child a FAPE. An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[k]). Consequently, this part of the decision is final and binding (Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child with a Disability, Appeal No. 06-085; Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).
I must now consider whether petitioner met his burden of proving the appropriateness of his placement of the child at West End (Burlington, 471 U.S. 359). In order to meet that burden, a 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 school offered an educational program that was appropriate for the child's special education needs (Walczak, 142 F.3d at 129; see also Frank G., 459 F.3d at 363; Cerra, 427 F.3d at 192). A parent's failure to select a program approved by the state in favor of an unapproved option is not, itself, a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id.; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
The impartial hearing officer found that petitioner did not meet his burden of proving that the unilateral placement and school-based ABA services were appropriate to meet his son's special education needs for the 2005-06 school year (IHO Decision at pp. 7-9). After reviewing the record, I concur (see Burlington, 471 U.S. 359; Frank G., 459 F.3d at 363).
The home-based ABA provider, who had provided services to the child since 2001, testified that the child had not been successful while attending kindergarten during the 2004-05 school year at respondent's school despite being accompanied by a one-to-one special education teacher who provided him with special instruction utilizing ABA methodology within the classroom (Tr. p. 145). The child did not respond to the activities in the classroom, exhibited "shutting down" behavior, required significant support, and was not able to be "independent in any way" in the kindergarten classroom (id.). She further testified that it was the general consensus of the child's private ABA providers, his West End classroom and speech-language teachers, and petitioner that the child required a small structured classroom with high teacher supports that would be able to make the necessary modifications for the child to be successful (Tr. p. 163).
The author of the educational progress report dated July 25, 2005 indicated that, although the child had made gains on concrete academic tasks, the skills had been taught to him in a very structured and systematic manner (Parent Ex. C at p. 2). The child was reported to be often withdrawn during group lessons and distracted by both internal and external stimuli (Parent Ex. C at pp. 2-3). It was reported that the child required persistent redirection and repetition, exhibited frequent verbal and motor stereotypy, imitated only inappropriate and maladaptive behaviors of his peers, and was unable to regulate inappropriate behavior independently (id.). The author recommended that, for the 2005-06 school year, the child be placed in a small special education classroom with individual assistance, a high staff to student ratio, motivational systems, and high rates of repetition (Parent Ex. C at pp. 1, 4).
Petitioner testified that West End is primarily a school for children with learning disabilities (LD) which also accepts children on the autism spectrum who are "higher functioning" (Tr. p. 60). Petitioner's son was placed in a class of eight students with a special education teacher, an assistant teacher, and an additional adult assisting (Tr. p. 62). Petitioner testified that he enrolled the child at West End without one-to-one assistance because it was a smaller school setting and West End was "supposed to" implement an individualized education plan for the child (Tr. p. 77). The home-based ABA provider testified that she was familiar with West End and that she and petitioner believed it to be "an environment where [the child] would be as independent as possible and be able to learn in that environment without someone [on] top of him all the time" (Tr. pp. 167-170). She further testified that, despite the fact that a one-to-one full time special education teacher had accompanied the child to school during the 2003-04 and 2004-05 school years, the child was enrolled at West End because she and petitioner wanted to see whether he could be successful independently in the smaller special education classroom (Tr. p. 175).
The record reflects that the child began to exhibit behavioral difficulties at West End almost immediately at the start of the 2005-06 school year (Parent Ex. R at p. 3). Narrative entries in a parent-teacher communication log indicate that the child "had a good first week" at West End (Parent Ex. R at pp. 1-2). By September 15, 2006, the child began to exhibit inappropriate touching of other children, running out of the classroom, difficulty following classroom rules and teacher directions, "calling out" behavior, difficulty staying focused, making silly rhymes with children's names, kicking children under the table, imitating negative behaviors, and "overly silly" behavior (Parent Ex. R at pp. 3-27). A West End progress report dated January 6, 2006 reveals the child received a score of five, which indicated that these were areas of concern and the child was unable to function at an age-appropriate level even with teacher support, in the social skill areas of "interacting with peers" and "exhibiting self control" as well as in the physical education skill areas of "following directions," "participating in cooperative activities," and "remaining with the group" (Tr. pp. 91-93; Parent Ex. K at pp. 3-6). The child required frequent redirection and teacher prompting to remain focused on tasks and complete his work (Parent Ex. K at p. 6). His behavior was described as "provocative" toward others and he required a high level of teacher support to facilitate his social skills development (id.). A review of the parent-teacher communication log entries from September 7, 2006 to January 30, 2006 reveals that the child demonstrated problem behaviors on 34 of the 55 days reported (Parent Ex. R at pp. 1-40).
Petitioner testified that the child was having increasing difficulty with inappropriate behavior at school and the home-based ABA provider testified that she developed a behavior plan to address the child's behavior problems at school (Tr. pp. 75-76, 219-220). The home-based ABA provider provided West End with suggestions on how to implement the plan, but, according to her, the school was not successful because they "didn't have the capacity to implement the behavior plans" (Tr. pp. 219-220). In mid-winter 2006, West End informed petitioner that the child would need to be provided with one-to-one support in the classroom because its classroom structure and supports could not meet the child's needs (Tr. pp. 75-76; Parent Ex. I). I note that the record contains a letter dated March 22, 2005 confirming the child's acceptance into West End for the 2005-06 school year and informing petitioner that West End did not provide one-to-one classroom "coverage" if required by the child (Parent Ex. G). Petitioner subsequently hired another private provider trained in ABA to work one-to-one with the child at the school in order to implement the behavior plan developed for the child by the home-based ABA provider (Tr. pp. 75-77, 192-93, 244-45; Parent Ex. S at p. 28).
The school-based ABA provider hired by petitioner testified that she began to provide services to the child within his classroom at West End in February 2006 after having been contacted by the child's home-based ABA provider (Tr. p. 244). She testified that the child was having difficulty sustaining attention, was engaging in inappropriate negative attention seeking behaviors with the other children, such as use of inappropriate language, inappropriate touching, and non-contextual laughter (Tr. p. 247). According to the school-based ABA provider, these behaviors made it difficult for the teachers to carry on because the child required a tremendous amount of redirection (Tr. p. 256). A behavior plan was being used in the classroom to address the problem behaviors the child was exhibiting, but the child's inappropriate behaviors escalated (Tr. pp. 221, 247). The original plan was modified by the child's home-based ABA provider and was subsequently implemented by the school-based ABA provider (Tr. p. 221).
The school-based ABA provider testified that she did not provide any academic instruction to the child and that her only role was to manage the behaviors that were interfering with his learning (Tr. p. 263). Her goal was to provide the child with the framework of a behavior plan and to have him carry it out independently in her absence (Tr. pp. 258-59; see Parent Ex. Q at pp. 1-3; see also Tr. pp. 100-105). The school-based ABA provider worked with the child at West End for two hours of his school day, which was approximately five and a half hours long, and she testified that West End would have liked her there longer (Tr. pp. 257-58). The school-based ABA provider also testified that she did not use any standardized method to determine the amount of time she spent at the school (Tr. p. 266). The hours she spent at West End varied from day to day based on the days of the week when the child needed the most support as reported by West End (Tr. pp. 266-67). She testified that he most frequently engaged in negative attention seeking behaviors during gym and free play, and that he had difficulty sustaining attention during math (Tr. pp. 267-68).
The school-based ABA provider testified that the child made meaningful progress when she was with him at West End (Tr. p. 259). According to the school-based ABA provider, the strategies that she implemented helped the child learn in the school environment by reducing the behaviors that were getting in the way of his learning and providing him with tools that he could use to become more independent (id.). She stated that initially the child would kiss other children or use negative language to try to get their attention and that she provided him with alternate methods with which to engage other children such as saying, "[H]ey what's going on. How are you today? Guess what, I did this after school yesterday" (Tr. p. 264). She measured the child's progress by first having him practice the alternate behavior and then "fading back" or standing out of his view and determining if he was able to use the tools she had put in place for him (Tr. pp. 264-65). She testified that the problem behaviors were significantly reduced, in both frequency and duration, and that the teacher at West End was "one hundred percent pleased" with the child's progress (Tr. pp. 262-63).
The home-based ABA provider testified that there was a very significant reduction in the child's inappropriate behavior and in his ability to participate in the classroom when the school-based ABA provider began to work with him (Tr. p. 197). She further testified that she reviewed the data collected by the school-based ABA provider, which supported the child's learning and participation (Tr. pp. 197, 203, 206-207, 214). Petitioner also testified that the child had made progress, which he based on the entries in the parent-teacher communication log, on his observations of the child on play dates, and on his own interactions with the child (Tr. p. 99; see Parent Ex. R at pp. 41-61).
I am not persuaded by petitioner's assertion that the services provided by the school-based ABA provider to the child at West End decreased the child's problem behavior. The parent-teacher communication log entries and the "daily notes on behavior modification plan" from February 1, 2006 to April 28, 2006 reveal that the child demonstrated problem behaviors on 29 of the 39 days reported (74%) as compared to 34 of the 55 days reported (62%) before the school-based ABA provider was obtained (Parent Exs. Q at pp. 4-31; R at pp. 1-40, 41-61). I also note that, primarily, the child's West End teachers wrote the anecdotal entries contained in the parent-teacher communication log. If the child's school-based ABA provider and home-based ABA provider relied upon additional objective qualitative data to measure or monitor the child's progress in reducing the frequency and duration of the specific problem behaviors he exhibited at West End, such data is not contained in the record.
Regarding petitioner's assertion that the child's placement at West End was reasonably calculated to provide a meaningful educational benefit, I disagree and concur with the finding of the impartial hearing officer that petitioner was well aware of the child's behavioral problems and attending deficits when he first began to consider an alternate educational placement for the child (IHO Decision at p. 8). The child had been receiving one-to-one special instruction utilizing ABA methodology since 2001, including being accompanied by a one-to-one special education teacher to school during the 2003-04 and 2004-05 school years (Tr. p. 175). Respondent's CSE recommended a 6:1+1 special class in a specialized school for the child and the services of a full time behavior management paraprofessional. The CSE considered and rejected less restrictive programs because the child demonstrated significant difficulties with social relatedness and required prompts, reminders, and much refocusing throughout the school day (Tr. pp. 49-50; Parent Ex. B at pp. 1, 2, 32-34). Petitioner did not dispute the child's needs that were identified by the CSE (Parent Ex. A).
Moreover, I note that petitioner produced insufficient evidence regarding how the program at West End was appropriate to meet the child's special education needs such as language skills, pragmatic skills, cognitive and conceptual skills, reading skills and social skills (see Application of a Child with a Disability, Appeal No. 06-094). Petitioner testified that the child's class at West End was comprised of eight students, including petitioner's son, who were grouped for instruction based on their academic level (Tr. p. 61). An unsigned and undated report from West End entitled "General Description of Difficulties" indicates that, at some point during the 2005-06 school year, by teacher estimate, the child's reading and math skills were at the 1.5 grade instructional level when he was provided with support and structure (Parent Ex. M at p. 1). However, the record does not indicate that West End grouped the child for instruction with other students at his cognitive or academic level nor does it describe with any specificity his cognitive and academic levels.
The child has a history of difficulty in social skills, difficulty initiating social interaction, exhibiting inappropriate behavior, and inattentiveness (Tr. pp. 75-76, 91-93, 219-220, 247, 264; Parent Exs. B at pp. 2-4; C at pp. 2-5; K at pp. 3-6; M at pp. 1-2; R at pp. 3-27). However, there is no information in the record describing how West End's program addressed the child's needs related to his disabilities or what strategies were employed by West End to attempt to address his specific deficits in socialization, behavior, or attention.
Additionally, although the record contains speech-language goals and objectives for the child developed by West End for the 2006-07 school year, the record is devoid of information related to the speech-language services that West End provided him during the 2005-06 school year (Parent Ex. J; see Parent Ex. G).
Moreover, other than two progress reports from West End, one written in approximately November 2005 and the other dated January 6, 2006, the record does not contain objective evidence regarding the child's educational progress during the 2005-06 school year (Tr. pp. 97-98; Parent Exs. K; O).
Based on the foregoing, the record does not show that the services provided by West End during the 2005-06 school year met the child's special education needs at that time. Therefore, I find that petitioner has not demonstrated that West End offered an appropriate educational program to meet his son's special education needs (see Matrejek, 2007 WL 210093, at *11-*14; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660 [S.D.N.Y. 2005]; Application of a Child with a Disability, Appeal No. 06-055).
I now turn to an analysis of the home-based ABA services provided by the home-based ABA provider. In this case, the home-based ABA provider testified that she created programs for the child that would help him to be successful in the classroom, and she implemented behavior plans that he could practice with success in a one-to-one structured environment with reinforcements (Tr. pp. 178, 205-06). The home-based ABA provider worked closely with the child's classroom to find out what skills the child needed to be successful and worked with him to teach him to respond independently to the teacher (Tr. 178). She also testified that she provided the child with intensive functional communication training to give him the appropriate means by which to gain attention and reduce his inappropriate attention-seeking behaviors (Tr. p. 206). She opined that, historically, the child was only learning in his one-to-one setting and he needed to acquire skills in the one-to-one setting in order to be more independent and successful in the classroom environment (Tr. pp. 185-86). She testified that one skill she had worked on during the 2005-06 school year was improving the child's fluency with a chain of events described as "coming in, taking off your jacket, putting up your backpack, taking out your notebook and putting it on the table" (Tr. pp. 228-29). She testified that this particular routine had been taking the child about 20 minutes to complete in school with someone talking him through it (Tr. p. 229). The child practiced the routine in the private special education teacher's office without distractions and he was subsequently able to replicate it in school (id.). She testified that she typically provided the child with services in her office, but if there were a behavior problem or other concern that needed to be addressed in the home, she would see the child at home and work with petitioner on the problem (Tr. p. 230).
The home-based ABA provider testified that she collected data in connection with the "programs" she created for the child and that her review of the data indicated that the child was definitely making progress in his home programs with a steady rate of acquisition (Tr. pp. 206-07). She testified that she determined the number of hours of her services the child required based on "where his deficits lies [sic] or his excesses that we need to reduce and see how many hours that it would realistically take for him to make any kind of meaningful progress" (Tr. p. 226). She further testified, "We don't just pull it out of a hat," rather the number of hours of service she provided were determined by the data collection and the child's rate of acquisition, as well as the opinion of the team working with the child (Tr. p. 232).
Petitioner testified that the child received six to ten hours per week of ABA services outside of West End from the home-based ABA provider and that the child had made "tremendous" progress (Tr. p. 77). He further testified that the home-based ABA provider provides parent training and writes reports as needed documenting the child's progress (Tr. pp. 82-84).
The record before me does not contain any evaluative data to support petitioner's contention that the child required additional services after school as an essential component of his special education program. Rather, the record reflects that the child was "learning how to learn in classroom and group environments," skills typically identified as prerequisites (Tr. p. 184). Petitioner testified that the home-based ABA provider wrote reports documenting the child's progress, and the home-based ABA provider testified that she collected data relevant to the instruction she provided to the child (Tr. pp. 84, 206). I note the record does not contain documentary evidence related to the work of the home-based ABA provider with the exception of some notations in the parent-teacher communication log that are directed to the West End staff and two notations to petitioner regarding the child's lunch and a computer chess game (Parent Ex. R at pp. 1, 4-5, 7-8, 16-17, 29, 30-31, 55).
I find that petitioner has not met his burden to demonstrate the appropriateness of the home-based ABA services to meet his son's special education needs. Therefore, I find that the impartial hearing officer erred by partially awarding petitioner reimbursement for the cost of such services.
Next, I will address the parent training and counseling services provided by the home-based ABA provider. Petitioner testified that, although he considers himself well versed in autism in his field, he continues to need parent training and counseling because his son's needs are very dynamic and the home-based ABA provider has provided recommendations to address the child's self-stimulatory behaviors as well as his sensory problems such as resistance to certain food textures or putting his head in the water when swimming (Tr. pp. 85-87). The home-based ABA provider testified that she does not charge extra for the ongoing parent counseling she provides to petitioner after her sessions with the child, which is consistent with petitioner's testimony, and that it was not formal (Tr. pp. 88, 212, 236). Here, the record reflects that petitioner has received more extensive parent training in the past, has been actively involved in his child's education, and has communicated regularly with the child's home-based ABA provider (see Tr. pp. 85-87, 233, 235). I note that West End provided counseling services for its students' families and that parent training and counseling were not included in the child's proposed 2005-06 IEP (Parent Exs. B; G). The record reflects that the related services as proposed in the 2005-06 IEP were not disputed by petitioner (Parent Ex. U at p. 5; see Tr. pp. 19-20). Therefore, I find that the record does not support an award for the privately obtained parent counseling and training services that were provided by the home-based ABA provider and that the impartial hearing officer erred by awarding petitioner reimbursement for the cost of such services.
Based on the foregoing, the record lacks sufficient information regarding the program and services provided during the 2005-06 school year to demonstrate that the program and services met the student's special education needs at that time. Petitioner has not demonstrated that the program provided by West End and the services provided by the private ABA providers were appropriate, and, therefore, the second criterion of the Burlington analysis has not been met (see Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 06-014; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 05-119). Having so found, I need not determine whether the equities weigh in favor of petitioner, the third criterion of the Burlington analysis (Application of a Child with a Disability, Appeal No. 06-138; Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 05-119).
I have considered the parties' remaining contentions and find them to be without merit.5
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent that it found that equitable considerations warranted an award of a portion of the home-based ABA and parent counseling services and ordered respondent to reimburse petitioner for the costs of such services.
Albany, New York
March 27, 2007
PAUL F. KELLY
1 Petitioner refers to the child's private special education teachers as "SEIT" (special education itinerant teacher) throughout the record. However, section 4410 of the Education Law, entitled "Special education services and programs for preschool children with handicapping conditions," defines "special education itinerant services" as "an approved program provided by a certified special education teacher on an itinerant basis in accordance with the regulations of the commissioner, at a site determined by the board, including but not limited to an approved or licensed prekindergarten or head start program; the child's home; a hospital; a state facility; or a child care location" (Educ. Law § 4410 [k]).
2 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 the 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.
3 The term "free
appropriate public education" means special education and related services
(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 school, 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).
4 On December 3, 2004, Congress amended the IDEA; however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
5 Petitioner appeals from the impartial hearing officer's "denial" of reimbursement of the cost of the home-based ABA services that were provided during July and August 2006 since petitioner had withdrawn such claim without prejudice during the impartial hearing. In doing so, petitioner appears to have misread the impartial hearing officer's decision since the impartial hearing officer did not deny such claim, but merely deducted those amounts from the award pertaining to the 2005-06 school year because the total amount of petitioner's original request for reimbursement included those costs (IHO Decision at p. 11).