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 Board of Education of the City School District of the City of New York
Edward L. Sadowsky, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Michael S. Brown, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on preschool special education (CPSE) that petitioner's child be enrolled on a twelve-month basis in the Association in Manhattan for Autistic Children (AMAC), and which denied petitioner's request for an order directing respondent to reimburse petitioner for the costs which he and his wife incurred in providing a home-based applied behavioral analysis (ABA) program to the child during the 1994-95 and 1995-96 school years. The appeal must be dismissed.
Petitioner's son was born in August, 1991. Shortly before the child's second birthday, his parents noted that the child used only five words. His development was in other respects normal. By December, 1993, the child no longer used two of the five words in his vocabulary.
The child's pediatrician referred his parents to a private psychologist, who met with the parents on January 18, 1994, and observed the child on February 1, 1994. The psychologist reported that the child did not make eye contact, or acknowledge vocal requests. The child reportedly vocalized in a sing-song voice. The psychologist administered portions of two standardized intelligence tests to the child, but did not do a complete assessment of the child's cognitive skills, because the child did not respond to instructions. The psychologist indicated that the child appeared to have age appropriate visual-spatial, fine motor, and gross motor skills. However, the child demonstrated delays in his expressive and receptive language skills. His social and imitative play, and awareness of others, were described as limited. The psychologist recommended that the child attend a specialized nursery school, and advised the boy's parents to seek the assistance of the CPSE.
In a letter dated January 18, 1994, petitioner referred his son to respondent's CPSE for an evaluation. It should be noted that at the time of his referral, the child was not yet eligible, because of his age, to receive services from respondent (8 NYCRR 200.1 [ee]). The child's parents were sent an information packet about obtaining an evaluation from an approved evaluator (See Section 4410 [b] of the Education Law). The requisite parental consent to conduct an evaluation was obtained on February 9, 1994. In a letter dated February 9, 1994, petitioner informed the CPSE that the child would be evaluated at the Parkside School, which is an approved evaluator of preschool children suspected of having disabilities.
On March 15, 1994, the child was seen by a neurologist, who noted that the child did not make eye contact, or respond to questions. The neurologist reported that the child's cranial nerves and fundi were normal, as were his motor, sensory, and coordination skills. The neurologist diagnosed the child as having a pervasive communication disorder. He recommended that the child attend a "therapeutic" nursery school and receive speech/language therapy.
On March 7, 1994, petitioner was interviewed by a social worker at the Parkside School for the purpose of obtaining the child's social history. Petitioner indicated that the child had recently begun to attend the Tomorrow's Learning Center in New Jersey, which reportedly used applied behavior management techniques. He also indicated that he intended to employ individuals who could provide the child with 30 hours per week of home therapy, using applied behavior techniques. The child's social history also indicates that the child was attending two music classes, and a mother/child play group, each week. Petitioner reported that until recently, the child did not have an interaction with other children, but had recently begun to hold hands with other children. Petitioner reported that the child was not toilet trained, and required assistance with dressing himself. He indicated that the child engaged in hand flapping once or twice per day, and engaged in other forms of repetitive behavior. He also indicated that the child had begun to receive speech/language therapy twice per week, in February, 1994.
At the request of the Parkside School, the child was evaluated by a speech pathologist on March 15, 1994. The speech pathologist noted that the child's parents reported that the child appeared to be responding to the privately provided speech/language therapy he was receiving twice per week. He reported that the child was not amenable to formal testing, because his attending skills were poor, and he was unable to focus on formal test stimuli. He described two instances in which the child imitated, or tried to imitate, the actions of the speech pathologist. The speech pathologist noted that although the child was verbal throughout the evaluation, he demonstrated no oral verbal communicative intent. The child did not follow directions, even with the aid of gestural cues. He reported that the child evidenced receptive language skills at the 12-14 month level. He opined that the child had a severe language disorder characterized by severely limited expressive and receptive vocabulary, severe deficits in auditory processing skills, and limited phonological development. He noted that the child's pragmatic skills were poor, and that the child's deficits in expressive and receptive language were exacerbated by his limited ability to remain focused and to maintain eye contact. The speech pathologist recommended that the child receive individual speech/language therapy five times per week, and that he continue to be involved in " ... an applied behavioral therapeutic approach ... ". He also recommended that the child's hearing be assessed, and that the parents be counseled on ways to stimulate speech/language and communicative behavior at home.
As part of the evaluation process, the Parkside School attempted to have the child observed in a toddlers' play program of the Children's Aids Society which the child reportedly attended twice per week for approximately one and one half hours. However, the child was absent when the Director of the Parkside School went to observe him. She discussed the child with the program director at the Children's Aids Society, who expressed concern about the child's ability to hear. The child was observed in the Parkside School, on April 8, 1994. The Director noted that the child imitated the actions of other children who were playing with toys in water. He had some difficulty making the transition from one activity to another, and could not remain focused while a story was being read. She recommended that the child attend a language-based preschool program to remediate the deficits in his language, communication, and social skills. She also recommended that behavioral intervention be continued because the child's parents had noted improvements in his behavior since the inception of a behavioral modification program at home. The Director of the Parkside School also recommended that the child receive speech/language therapy.
On May 4, 1994, the CPSE met to review the child's evaluations. The CPSE administrator testified at the hearing in this proceeding that the CPSE determined that it did not have sufficient information about the child to recommend an educational program for him. In a letter dated May 10, 1994 to the Director of the Parkside School, who had attended the CPSE meeting, the administrator noted that the CPSE had not received a general medical history of the child, and that the child's social history indicated that he had been evaluated by a neurologist whose report the CPSE did not have. He also noted that the information provided to the CPSE had indicated that the child had received an audiological evaluation, and that he appeared to need an occupational therapy evaluation because of his "toe walking." The administrator asked for reports of those evaluations. He also requested that the child be observed in one of his current educational settings: Tomorrow's Learning, Church Street Music School, or "Music Together." The CPSE administrator also requested a description of the behavioral modification services which the child was receiving in his home. He also sought clarification of the results of the child's psychological evaluation which had been performed on February 1, 1994, since one of the test instruments used was not scaled for a child who was less than three years old.
On May 10, 1994, the Associate Director of Tomorrow's Learning Center wrote a letter to the Director of the Parkside School, in which she indicated that there was marked improvement in the child's receptive language and social relatedness, and improvement in his expressive language skills, since he began in the program on February 28, 1994. She reported that the child could make eye contact in response to having his name spoken, imitate gross-motor and fine-motor movements, follow 20 one-step directions, point to desired items, and match like items. She further reported that the child could verbally imitate sounds and simple words, expressively label two objects, answer two social questions, and use "yes" and "no" expressively in response to certain questions. She indicated that the child continued to have deficits in receptive and expressive language, and age appropriate play. At the hearing in this proceeding, the CPSE administrator testified that the CPSE made two more requests to the Parkside School to provide additional evaluation information. By letter dated June 13, 1994, the Director of the Parkside School advised the CPSE administrator that the results of a medical examination had been sent to the CPSE, and that she did not believe that an occupational therapy evaluation was warranted, but would obtain an evaluation if the CPSE believed it to be necessary. I note that on April 24, 1994, the child was examined by his personal physician, who reported that the child's vision and hearing were within normal limits. The physician did not recommend that the child receive an occupational therapy evaluation. The Director of the Parkside School also indicated that she, the speech pathologist, and the social worker who had prepared the child's social history recommended that the child continue in the behavioral program in which he was currently enrolled, and that a center-based program also be provided, because the behavioral program was not " ... an approved State funded program."
In a letter to petitioner, dated June 20, 1994, the Director of the Parkside School asked petitioner to provide copies of the neurologist's report, and any additional progress reports from the child's current educational program. She also indicated that a new psychological evaluation needed to be conducted. Petitioner sent a copy of the neurologist's report to the Director on July 14, 1994. In a subsequent letter dated July 24, 1994, petitioner indicated that the child would be evaluated by a psychiatrist selected by petitioner, and asked that the psychiatrist evaluation be used in lieu of the additional psychological evaluation requested by the CPSE. He further indicated that the child had been evaluated on July 14, 1994, at the George Jervis Clinic of the Institute for Basic Research, and that he would provide the CPSE with a copy of the results of that evaluation. The record reveals that the Director of the Parkside School wrote to petitioner on October 26, 1994, to indicate that she had not received the psychiatrist's report, or any other information about the child. However, in a letter dated September 14, 1994, to the Director of the Parkside School, the Tomorrow's Learning Center indicated that the child had made significant progress in his expressive and receptive language skills, and his play skills. The Director also noted that petitioner had declined her offer of July 21, 1994 to have the child evaluated by a psychologist. The Director also indicated that if the necessary reports were not provided to her by November 1, 1994, she would recommend to the CPSE that the child's case be closed. Shortly thereafter, the CPSE received the report of a psychiatric evaluation which had been performed in July and August, 1994, and the psychological evaluation performed in the George Jervis Clinic in September and October, 1994.
The psychiatrist reported that the child spoke in a monotone, and that many of his words were misarticulated. With much redirection by his parents, the child was able to identify many of his body parts. During the evaluation, the child flapped his hands and engaged in echolalic speech. He maintained some eye contact. The psychiatrist opined that the child met the criteria for being diagnosed as having an autistic disorder. He recommended that the child continue to receive an intensive program of ABA, and that ABA be provided continuously throughout the day. It must be noted that the psychiatrist indicated that the child was two years and one and one-half months old at the time of his evaluation, when in fact the child was three years old at the time the evaluation was completed.
A psychologist in the George Jervis Clinic reported that the child was able to attend, and occasionally imitate, during a video taped observation. He noted that the child talked to himself with an intonation which was characteristic of autistic individuals, and that his speech was occasionally echolalic. The child did not exhibit repetitive behavior. On the Vineland Adaptive Behavior Scales, the child achieved standard scores of 80 in communication, 78 in daily living skills, 78 in socialization, and 90 in motor skills. The psychologist reported that the child's scores were all within the low-average range. He opined that the child had an autistic disorder, and recommended that he be provided with an intensive ABA program. The psychologist suggested that discrete trial learning and incidental learning techniques be used to help the child acquire specific social skills, and that concepts be presented to the child by a variety of people in a variety of situations in order to help the child learn to generalize. He also recommended that the child receive speech/language therapy on a daily basis, and that the child's parents be trained as part of the child's therapeutic program. The psychologist recommended that the child be tested to determine his verbal IQ and non-verbal IQ.
On October 24, 1994, the child was evaluated again at the George Jervis Clinic. He achieved an IQ score of 74. However, the evaluators cautioned that the child's score might be an underestimate of his abilities, because the child had refused to verbalize, or to complete many of the tasks required by the IQ test. His uncooperative behavior was thought to have also impaired the validity of the results of a standardized test of his language skills. He achieved a standard score of 83 for receptive language vocabulary skills. The evaluators re-administered the Vineland Adaptive Behavior Scales to the child. They reported that he had achieved a six-month gain in the communication domain, in the one-month interval between tests.
On January 23, 1995, the CPSE met again with petitioner, who requested that the CPSE recommend that the child remain in his home-based ABA instructional program, with respondent assuming the cost of that program. The Executive Director of AMAC also attended the meeting because the child had been referred to, and evaluated at, that facility for possible enrollment in its educational program. She advised the CPSE that AMAC could provide an appropriate educational program for the child. The CPSE recommended that the child be classified as a preschool child with a disability (see 8 NYCRR 200.1 [ee]). It also recommended that the child be enrolled for five hours per day, five days per week, in AMAC's Children's House program. The CPSE recommended that the child be instructed in a class with a child-to-adult ratio of 7:1:1, and that he be provided with an individual aide. The CPSE recommended that the child be enrolled in the AMAC on a twelve-month basis. It further recommended that the child receive individual speech/language therapy twice per week, and speech/language therapy in a group of five three times per week. The individualized education program (IEP) which the CPSE prepared for the child included annual goals for the child to purposefully explore toys, increase his pretend play skills and ability to interact with others during play, and increase his ability to pay attention. Another IEP annual goal was to decrease the child's self-stimulatory behavior. There were also IEP goals to improve the child's comprehension of spoken language, and his ability to "produce language," i.e., his expressive language skills. Other annual goals involved improving the child's grapho-motor skills and his activities of daily living skills. As noted below, the short-term objectives for the child's activities of daily living annual goal were deleted from the IEP.
The child's parents were notified of the CPSE's recommendation, in a notice dated January 23, 1995. Although I note that the notice of recommendation did not comply with the State requirement that the CPSE include in its statement the reasons why the committee recommended a program or service other than that preferred by the parent (Section 4410 [b][ii] of the Education Law), the record reveals that the CPSE subsequently informed petitioner of the reasons for its recommendation. Under the circumstances, I find that respondent's error does not afford a basis for annulling its CPSE's recommendation (Application of a Child with a Disability, Appeal No. 96-33). However, respondent should revise its notice of recommendation form, and instruct its CPSE to comply with the statutory requirement.
In a letter dated February 22, 1995, petitioner advised the CPSE that he would not give his consent for the child to be placed in AMAC for the program which the CPSE had recommended. He renewed his request that the CPSE recommend that the child receive 40 hours per week of discrete trial ABA instruction in the child's home. He also requested that respondent reimburse him for his expenses to date in providing the child with ABA instruction at home. He indicated that if the CPSE failed to grant his request, he wished to have an impartial hearing.
A CPSE administrator advised petitioner by letter dated March 20, 1995 that the child's case was being closed because respondent could not implement the CPSE's recommendation without petitioner's consent. Petitioner responded to that letter on March 27, 1995, with a request that his son's case be immediately reopened and that he have a hearing. On May 9, 1995, the CPSE administrator wrote a letter to petitioner, in which he indicated that petitioner's request for a forty-hour program with the ABA technique in the child's home had been carefully considered by the CPSE, but was rejected. He also indicated that:
"The home based services that you requested are not considered to be within the confines of available services pursuant to State education regulations. We also believe that [the child] would be appropriately served in AMAC with the 1:1 para." (Exhibit 4)
Petitioner, who is an attorney, indicated that he intended to consult legal counsel. Petitioner reportedly reiterated his request for a hearing approximately one month before the hearing in this proceeding began in October, 1995. The hearing concluded on January 5, 1996.
The hearing officer rendered her decision on March 29, 1996. She noted that there was no disagreement about the child's need for a language-based instructional program, using the ABA technique. Although the child had reportedly achieved some of his IEP short-term objectives in the year since the IEP was prepared, the hearing officer found that the child's IEP annual goals were generally appropriate. She further found that there was no basis for concluding that the child's IEP goals and objectives could only be achieved in a home-based program, as petitioner sought. The hearing officer concluded that the center-based 25 hour per week program which the CPSE had recommended would have afforded the child a reasonable opportunity to meet his IEP goals and objectives while allowing him the chance to develop needed socialization skills. She found that the program of home instruction preferred by petitioner would not be appropriate because it was not the least restrictive environment for the child. With regard to petitioner's request for reimbursement of its expenditures in providing the program at home for his child, the hearing officer found that petitioner had failed to prevail on any of the three criteria for tuition reimbursement articulated by the United States Supreme Court in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985).
Petitioner challenges the IEP goals and objectives for his son as not being reasonably related to his son's levels of achievement. He contends that the AMAC could not have successfully implemented his son's IEP because it lacked the requisite personnel and did not understand the correct methodology to be used with his son. Petitioner also contends that the proposed AMAC placement was not the least restrictive environment for his child.
Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation for the child's educational program (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child with a Disability, Appeal No. 96-29; Application of a Child with a Disability, Appeal No. 96-33). Respondent must show that the recommended program or services were reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the program or service is provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h]; 8 NYCRR 200.6 [a]). A school district which fails to provide all of the services which a preschool child with a disability needs to have for an appropriate educational program may be required to reimburse the child's parents for the cost of the educational services which they have obtained for the child (Application of the Bd. of Ed. of the Eastchester UFSD, Appeal No. 95-58).
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). I have reviewed the child's IEP, and I find that it accurately reflects the results of the child's evaluations. It describes the child's cognitive, communication, motor, and social skills. The IEP includes a description of the results of the child's formal evaluations, as well as a description of the manner in which he related to other children, when he was observed on April 8, 1994 at the Parkside School. In addition, it includes a description of his skills from the Tomorrow's Learning Center. The child had deficits in his use of language, ability to attend, and social relatedness, which his IEP identified.
Petitioner contends that his son's IEP annual goals and short-term instructional objectives bore no reasonable relationship to the child's level of achievement. In reviewing the child's IEP, I am cognizant of the fact that an IEP is a "snap shot" taken at a particular point in time (Roland M. v. Concord School Committee, 910 F. 2d 983, 992 [1st. Cir., 1990], cert. den. 499 U.S. 912 ). The IEP was prepared in January, 1995, on the basis of the information which had previously been provided to the CPSE. At the hearing, petitioner acknowledged that he had probably not provided the CPSE with Exhibit A, which is a report from the Tomorrow's Learning Center detailing the child's level of performance as of December, 1994. He also acknowledged that he had not provided copies of the data logs which recorded his son's progress in his ABA instructional program at home. I find that petitioner bears some responsibility for the CPSE's alleged failure to have information about the child's current levels of performance. In any event, I further find that the CPSE had adequate information to prepare the IEP.
An IEP annual goal must be directly related to the child's special education needs. Four of this child's IEP goals relate to the development of his play skills, which was a need identified in the September, 1994 psychological evaluation at the George Jervis Clinic (Exhibit J). There were also annual goals for the improvement of the child's expressive, receptive, and interpersonal (pragmatic) language skills, all of which have been identified by various evaluators as special education needs for the child. The IEP annual goals to decrease the child's self-stimulatory behavior, and to increase his ability to remain on task addressed needs identified by various evaluators, such as the psychiatrist who examined the child in July, 1995 (Exhibit G). Although the CPSE failed to replace the objectives which were deleted from the child's annual goal for activities of daily living, I find that the goal was related to the needs identified in the child's social history (Exhibit C). The IEP's annual goals for improving the child's gross-motor and fine-motor skills reflect the fact that the child exhibited delays in both skills when he was evaluated at the George Jervis Clinic in September, 1994 (Exhibit J). I find that the child's IEP annual goals addressed his special educational needs.
At the hearing in this proceeding, petitioner asserted that the various IEP short-term objectives were inappropriate because his son had already mastered them. For example, one of the IEP short-term objectives was for the child to follow two-step directives without visual cues during the school day. Petitioner asserted that the Tomorrow's Learning Center report dated September 14, 1994 (Exhibit H) established that his son had mastered that objective. However, that report indicated that the child could follow "simple directions." It did not elaborate on the number of steps, or whether the use of cues was required. I have considered petitioner's testimony with regard to each of the objectives which the child had reportedly mastered by January 23, 1995, when the child's IEP was prepared. While the child may have acquired some of the skills necessary to attain mastery of those objectives, I am not persuaded that he had in fact achieved mastery of them to the degree required by the IEP. I must also note that short-term instructional objectives must be revised on a continuing basis, as a child makes progress. I find that the child's IEP objectives were reasonably related to the child's needs and the attainment of his IEP annual goals. However, the CPSE should have included objectives to support the annual goal for improving the child's activities of daily living skills. That omission does not, in my opinion, afford a basis for annulling the CPSE's recommendation.
The primary area of contention in this appeal is whether the CPSE recommended appropriate special education services for the child. Its recommendation must be based upon the individual needs of the child (Section 4410 [b] of the Education Law). Although the CPSE administrator indicated in his May 9, 1994 letter to petitioner (Exhibit 4) that the CPSE was precluded by State regulation from providing special education services in a child's home, I note that the administrator subsequently acknowledged that there was no such restriction. Special education itinerant teaching services and related services may be provided to a preschool child in the child's home, when the documented medical or special education needs of the child indicate that he or she should not be transported to another site (Section 4410 [j] and [k] of the Education Law). In making its recommendation, the CPSE must ensure that the child will be educated in the least restrictive environment, within the continuum of services outlined in Federal and State regulations (34 CFR 300.556; 8 NYCRR 200.16 [h]). That requires the CPSE to consider what is the least restrictive environment in which a child can achieve his or her IEP goals (Mavis v. Sobol, 839 F. Supp. 968 [N.D. N.Y., 1994]). This child has reportedly participated in activities with non-disabled children, such as the play program of the Children's Aid Society. However, his evaluations reveal that he had significant special education needs which cannot be appropriately addressed in a regular education setting. The question is what would have been the appropriate special education setting for him.
The CPSE recommended that the child be instructed in the AMAC. Dr. Fredrica Blausten, the Executive Director of AMAC, testified that the school served autistic and probative developmentally disabled children, and that the focus of its educational program was to develop students' language and social skills. Dr. Blausten testified that AMAC provided an intensive ABA program, which included the use of an individual discrete trial methodology which was an integral part of the child's program of instruction at home. She testified that the staff of AMAC maintained data about the observed behavior of students, and regularly reviewed their progress. AMAC also provided parent training, as well as a parent support group, to assist parents in working with their children at home. Referring to the recommendations made by the psychologist who evaluated the child at the George Jervis Clinic, Dr. Blausten testified that the child would be instructed with the discrete trial method in the various social skills which the psychologist recommended. Dr. Blausten further testified about the abilities and needs of the children in the proposed AMAC class, in relation to the needs and abilities of this child. I find that her testimony established that the child would have been suitably grouped with these children for instructional purposes. In the proposed classroom, instruction was provided in groups of two or three children. However, there was an area in the classroom which was suitable for providing 1:1 instruction, including this child's discrete trial instruction. In this instance, the CPSE had recommended that the child have a 1:1 aide. Dr. Blausten testified that the aide would work with the child throughout the school day, and opined that the child's IEP could be successfully implemented with the assistance of an aide in the proposed AMAC class.
A therapeutic nursery program like that which AMAC provides is a fairly restrictive setting. However, I do not accept petitioner's argument that the AMAC placement would have been a more restrictive setting than having the child receive 1:1 instruction in his home, as petitioner requested. The child had social and communication needs which required that he be educated with other children to improve his social and communication skills. The AMAC program would have provided the child with that opportunity. I find his placement in the AMAC program would have satisfied the requirement that the child be educated in the least restrictive environment.
Although petitioner asserted at the hearing that his son required more ABA instruction than the AMAC could provide in its program of 25 hours per week, I find that the record does not support that assertion. Dr. Blausten testified that the AMAC program would address the child's needs, and enable the child to achieve his IEP goals. In other words, it would enable him to derive meaningful benefit from his educational program, which is the relevant standard in determining the appropriateness of the educational program recommended by the CPSE (Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra; Application of a Child with a Disability, Appeal No. 96-29). Dr. Blausten's testimony has not been refuted. Although the psychologist who evaluated the child at the George Jervis Clinic recommended that the child be enrolled in an intensive behavioral analysis program of at least 40 hours per week (Exhibit J), I must note that the psychologist did not make his recommendation in the context of a specific educational program for the child. Indeed, his recommendation appeared to be premised upon the research of others, rather than an assessment of this child's unique needs of this child. I further note that the psychologist did not testify at the hearing, or otherwise explain the basis for his recommendation.
I have considered petitioner's other contentions, but I find that they are without merit. Upon the record before me, I find that respondent has met its burden of demonstrating the appropriateness of the educational program which its CPSE recommended. In view of that finding, it follows that petitioner's request for an order requiring respondent to reimburse him for his expenditures for the child's program of instruction at home must be denied (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ).
THE APPEAL IS DISMISSED.