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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF WHITE PLAINS for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Plunkett and Jaffe, P.C., attorney for petitioner, Phyllis S. Jaffe, Esq., of counsel

Harold, Salant, Strassfield and Spielberg, Esqs., attorneys for respondents, Leonard I. Spielberg, Esq., of counsel


       Petitioner, the Board of Education of the City School District of the City of White Plains, appeals from the decision of an impartial hearing officer which ordered petitioner to provide respondent's son with 40 hours per week of instruction using the applied behavioral analysis technique (ABA) during the 1996-97 school year, rather than the 30 hours per week of such instruction which petitioner's committee on preschool special education (CPSE) had recommended that the child receive. Respondents cross-appeal from the hearing officer's denial of their request for an order requiring petitioner to reimburse them for the cost of the additional ABA instruction which they obtained for their son from July 1, 1996 until October 9, 1996 when the hearing officer rendered his decision. The appeal must be sustained. The cross-appeal must be denied.

        Respondent's son was born in June, 1992. Although there was some fetal distress at his birth, the child reportedly achieved his early motor developmental milestones, e.g., sitting, crawling, and walking, within normal time limits. His speech/language skills also developed in a normal way, until he was approximately 18 months old. At that time, he reportedly had a vocabulary of approximately 30 words. Thereafter, the child began to lose his language function, and he would not maintain eye contact with others. He reportedly communicated by gesturing.

        A neurologist who examined him in July, 1995 opined that the child evidenced signs of autism, or pervasive developmental disorder. He recommended that the child receive a more comprehensive neurological evaluation. The neurologist suggested that the child could greatly benefit from an intensive speech/language program, as well as an intensive behavior modification program for 40 hours per week.

        On July 18, 1995, the child was referred by his parents to petitioner's CPSE. He was evaluated at the Stepping Stones Special Education Preschool (Stepping Stones), which is an approved evaluator pursuant to Section 4410 (4) of the Education Law. On August 11, 1995, a Stepping Stones psychologist reported that the child did not engage in the testing process, when portions of a traditional IQ test and a test more geared to autistic children were administered to him. The psychologist opined that the child appeared to have a pervasive developmental disorder, based upon the information which respondents had furnished and what he had observed during his evaluation of the child. He recommended that the child receive a home behavioral program.

        The child's parents provided information about the child's adaptive behavior to a Stepping Stones educational evaluator on August 10, 1995. The evaluator reported that the boy had achieved standard scores of 52 in communications, 55 in daily living skills, 51 in socialization, and 53 in motor skills on the Vineland Adaptive Behavior Scales. The boy reportedly turned his head toward sound, and appeared to listen momentarily when addressed. He reportedly understood the phrase "come here", and the word "no". Although he showed interest in the play of others, he reportedly tended to watch them from several feet away. The evaluator reported that the child demonstrated emerging attending behaviors, and the ability to follow several verbal and non-verbal directions. She noted that the child's parents were providing a program of instruction with the ABA technique at home, and she recommended that he continue to receive such instruction for 40 hours per week.

        On August 17, 1995, a Stepping Stones speech/language therapist reported that the child had demonstrated splintered receptive language skills up to the level of a six to nine-month old child and that his expressive language skills were also splintered, but ranged up to the level of a twelve-month old child. She also reported that the child's communication disorder was characterized by limited range of social intentions in the presence of restrictive verbal language. Although the boy reportedly had normal hearing, the therapist noted that the child placed his hands on his ears, and that his response to auditory input was unreliable. She suggested that the child might have a sensory disorder. The speech/language therapist recommended that the child receive speech/language therapy to develop his receptive and expressive language.

        The child was also seen by a private psychologist on August 31, 1995, and September 8, 1995. The psychologist noted that the child showed minimal attention to testing materials and her requests, and that he appeared to often be inner directed. However, the child was capable of exhibiting more sustained attention, when food reinforcers were used. She cautioned that the child's test results could represent only minimal estimates of his cognitive potential. On the Merrill-Palmer Scale of Mental Tests, the child's score equated to a mental age of twenty months, which was two and one-half standard deviations below the mean. The level of his perceptual motor skills varied between 18-29 months and his fine motor skills were also described as inconsistently developed. He appeared to have appropriate gross motor development. On the Vineland Adaptive Behavior Scales, he achieved standard scores ranging from 55 for communication to 87 for motor skills. The psychologist reported that the child's attention span, interest, problem solving skills, and learning ability improved markedly when he received one-on-one instruction. She recommended that the child receive instruction with the ABA technique for a minimum of 40 hours per week to maximize his capacity to learn and to eventually function independently. She also recommended that he receive speech/language therapy.

        On September 27, 1995, the CPSE recommended that respondents' son be classified as a preschool child with a disability, and that he receive speech/language therapy for 45 minutes, twice per week. It also recommended that he receive the services of a special education itinerant teacher (SEIT) for three hours per week, and the services of a teaching assistant for 22 hours per week. The individualized education program (IEP) which was prepared for the boy indicated that he was to receive the recommended special education services in his home. His IEP annual goals focused upon improving his academic readiness skills, speech/language skills, socialization skills, and activities of daily living skills.

        On October 10, 1995, the child's father gave his consent for the implementation of the CPSE's recommendation, but he indicated that he believed that the CPSE's recommendation of 25 hours of instruction per week was inappropriate for the boy. Although respondents reportedly paid for additional instruction of their son during the 1995-96 school year, they did not request that an impartial hearing be held to review the appropriateness of the CPSE's recommendation. The boy's IEP was amended in December, 1995, to provide that the parents would receive consultant services from the SEIT and the child's speech/language therapist for 30 minutes twice per month.

        In monthly progress notes which she prepared, the child's SEIT indicated that the boy's speech/language, academic readiness, social, and activities of daily living skills improved during the period from November, 1995 to March, 1996. In March, 1996, the SEIT reported that the boy had exhibited the greatest growth in his speech and communication skills, especially with regard to developing an age-appropriate vocabulary. She described the boy's conversational speaking skills as emerging, and reported that he responded to one-step directions or commands with 90 percent accuracy. He could also follow some multi-step directions. His eye contact with other persons had increased. The SEIT reported that respondents' son was able to focus his attention for increasingly longer periods of time.

        Respondents were invited to attend the CPSE's annual review of their son at a meeting which was held on April 19, 1996. In a letter which was dated April 12, 1996, respondent advised the CPSE chairperson that they had been providing their son with eighteen hours per week of individual behavioral therapy and speech therapy, in addition to the services which the child was receiving pursuant to his IEP. They asked that the child's behavioral therapy, i.e., the instruction which the teaching assistant provided, be increased from its present level of twenty-two hours per week to forty hours per week.

        At its meeting of April 19, 1996, the CPSE made two recommendations. For the summer of 1996, it recommended that the child continue to receive three hours of SEIT services, twenty-two hours of service by a teacher aide, and three forty-five minute sessions of individual speech/language therapy per week, with an additional hour per month of consultant services. For the period from September, 1996 to June, 1997, the CPSE recommended that the child receive four hours per week of SEIT services and twenty-six hours of service in a program which combined the services of a teacher aide and a speech/language therapist from Stepping Stones in a home-based program. At the hearing in this proceeding, the CPSE chairperson testified that the CPSE had recommended the Stepping Stones program for the 1996-97 school year because respondents had agreed to have the child participate in the program. She also testified that the CPSE's recommendation that the child receive twenty-five hours of instruction per week, exclusive of related services, was based upon an alleged policy of the State Education Department and/or the school district. The IEPs which the CPSE prepared for the summer of 1996 and the 1996-97 school year continued to emphasize the development of the boy's speech/language skills, pre-academic skills, socialization skills, and activities of daily living skills.

        In a letter dated April 19, 1996, respondents requested that an impartial hearing be held to review the CPSE's recommendations. A hearing was held on July 1, 1996. After hearing the testimony of the CPSE chairperson, and considering the arguments of the parties, the hearing officer issued an interim order. He found that the child's parents had raised a number of questions about the appropriateness of the child's educational program for the 1996-97 school year, and he remanded the matter to the CPSE to prepare a new IEP for the boy on or before the second week of August, 1996. For the child's summer program, the hearing officer found that the child should receive three hours of SEIT services, and twenty-five hours of teacher aide services per week. He made no explicit provision for the child to receive speech/language therapy during the summer.

        On July 17, 1996, the CPSE reconvened, and revised the child's IEPs for the summer of 1996, and the 1996-97 school year. For the summer program, it recommended that the child receive three hours of SEIT services, and twenty-seven hours of teacher aide services per week, plus thirty minutes per month of consultant speech services. For the 1996-97 school year, the CPSE recommended that the boy receive four hours of SEIT services and twenty-six hours of teacher aide services, per week, plus thirty minutes of consultant speech services twice per month.

        Respondents challenged the CPSE's recommendation for the 1996-97 school year. The hearing resumed on September 9, 1996. The CPSE chairperson testified that the CPSE had recommended that the child receive thirty hours per week of instruction with the ABA technique during the 1996-97 school year:

" Because the committee is guided by the school day, which says 25 hours. Okay. And we gave 30 hours to [the child] for the fall, again based on the hearing. We felt that it would be somewhat silly to give 25 hours when a hearing officer recommended 30 hours for the summer." (Transcript, page 176)

        The Stepping Stones' Program Director, who had performed the child's educational evaluation on August 8, 1995, testified that she was aware that respondents had begun to provide their son with ABA instruction, prior to the evaluation, and she opined that the ABA technique was appropriate for the child. She further testified that in 1994 Stepping Stones had created a program which provided forty hours per week of instruction, and that her experience with the program supported the concept of providing such instruction for forty hours per week. The Program Director acknowledged that she had not seen the child since she evaluated him. With regard to this child's needs, she testified that:

" I don't have a recommendation in terms of whether a 40-hour week is appropriate except to rely on what I know in terms of our own delivery of services being appropriate for the children and when - how they have made the gains that they have and the improvement in the rate of acquisition of skills." (Transcript, page 211)

        The Program Director was then asked by respondents' attorney whether she still continued to recommend that the child receive forty hours per week of instruction using the ABA technique. She answered that it was still her recommendation, based upon what respondents had told her during the course of the year.

        The hearing officer also heard the testimony by petitioner's Director of Special Education, who described the findings in an article about research on the treatment of young children with autism which had appeared in the Journal of Autism and Developmental Disorders (Exhibit Z). She testified that research indicated that autistic children are most able to benefit when intervention with the ABA technique is begun between the ages of two and four, and when they receive at least fifteen hours per week of intervention. The Director of Special Education also testified that the results which children who had received twenty-five hours per week of intervention had attained were not necessarily significantly different from those of children who had received forty hours per week of intervention. She conceded that she had no personal knowledge of respondents' son.

        In his decision which was dated October 9, 1996, the hearing officer noted that in Malkentzos v. DeBuono, 923 F. Supp. 505 (S.D. N.Y., 1996), the court had granted a preliminary injunction to the parents of an eighteen-month old autistic child, which required the New York State Health Department and the New York City Department of Mental Health, Mental Retardation and Alcoholism Services to provide the child with forty hours of ABA instruction per week, and to reimburse the parents for the expenses they had previously incurred in paying for the child's instruction. Although the Malkentzos decision involved the application to another child of the Federal "Infants and Toddlers" portion of the Individuals with Disabilities Education Act (20 USC 1471) and the State "Early Intervention" program (Section 2540 of the Public Health Law), the hearing officer found the Court's reasoning to be persuasive with regard to the appropriateness of a forty-hour ABA program for respondents' child. The hearing officer ordered the CPSE to revise the child's IEP for the 1996-97 school year to provide that the respondents' son would receive forty hours per week of instruction using the ABA methodology. The hearing officer declined to rule upon respondents' request that he direct the Board of Education to reimburse them for their expenditures for private ABA instruction over and above that which the Board of Education had provided because he questioned his authority to grant that relief.

        Petitioner challenges the hearing officer's decision on the grounds that he applied an erroneous standard in determining the appropriateness of the program which CPSE had recommended for respondents' son, and that his decision was not supported by the record which was before him. Petitioner bears the burden of proving that its CPSE recommended an appropriate educational program for the boy (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child with a Disability, Appeal No. 96-33; Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-79). To meet its burden of proof, petitioner must show that the recommended program was reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. of Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]).

        An appropriate program begins with an IEP which accurately reflects the results of the 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). In this instance, there is no dispute about the boy's IEP, except with regard to the amount of services which the CPSE recommended. The Board of Education must show that the boy would derive meaningful benefit from his educational program, i.e., that the program would address his educational needs, and would enable him to achieve his IEP goals (Application of a Child with a Disability, Appeal No. 96-25; Application of a Child with a Disability, Appeal No. 96-29; Application of a Child with a Disability, Appeal No. 96-58).

        Each hearing officer's decision must be based upon the record which is before the hearing officer, as must my decision (8 NYCRR 200.5 [c][1]; 8 NYCRR 279.10). To the extent that the hearing officer relied upon the Malkentzos decision, which has since been overruled on other grounds (102 F. 3d 50 [1996]), I must note that it involved a different child and had other factual differences. The hearing officer's decision in this proceeding, as well as my decision, must also be based upon the individual needs of the child, rather than upon a State or local policy with regard to the amount of instruction to be provided (Battle v. Pennsylvania, 629 F. 2d 269 [3d Cir., 1980], cert. denied, 452 U.S. 968 [1981]). I must note that although the State guidelines (Exhibit R) to which the CPSE chairperson referred in her testimony mentioned a minimum standard of five hours of instruction during a full day (see 8 NYCRR 200.1 [o]), the guidelines did not preclude a CPSE from recommending that a child receive more than five hours per day/twenty-five hours per week of instruction. In any event, the CPSE recommended that respondent's child receive more than 25 hours of instruction per week during the 1996-97 school year. Nevertheless, the CPSE chairperson's testimony that the CPSE had recommended that the child receive thirty hours of instruction during the 1996-97 school year in order to be consistent with the hearing officer's prior order does not establish to my satisfaction that the CPSE considered the child's individual needs.

        I note that both parties have submitted copies of articles about the research which has been done with respect to the use of the ABA instructional technique. Having reviewed those articles, as well as the testimony adduced at the hearing I am not persuaded that a program of ABA instruction cannot be effective, unless it is given to a child for at least forty hours per week. Absent that kind of evidence, I must consider what this child accomplished during the 1995-96 school year with the services which petitioner provided to him.

        As noted above, the child's IEP for the 1995-96 school year had various annual goals which were related to the child's special education needs. The annual goals were supported by short-term instructional objectives. When the progress report by the SEIT teacher for the month of November, 1995 (Exhibit Q) is compared with the SEIT teacher's report for March, 1996 (Exhibit 16), it is obvious that the child had made significant progress with respect to his skills and behavior. I note that although the child was still working on many of the same skills in March, 1996 as he had done in November, 1995, his criterion level, i.e., the level at which he was expected to perform, had increased. For example in the area of language arts readiness, the criterion level in November was 60 percent. By March, the criterion level had increased to 70-80 percent. The supervisor of the child's substitute SEIT teacher during the summer of 1996 testified that the child had continued to make progress, although he was receiving less than forty hours of ABA instruction from petitioner (see also Exhibits X and Y). I am aware that during the 1995-96 school year and the summer of 1996 the child received extra ABA instruction in addition to that which petitioner provided. However, I find that it would be entirely speculative to assume that he would not have achieved satisfactory progress without the extra services which respondents obtained for him (Application of a Child with a Disability, Appeal No. 96-58). Upon the record which is before me, I find that petitioner has met its burden of proof with respect to demonstrating the appropriateness of the educational program which its CPSE recommended for the child at its meeting on July 19, 1996. Therefore, the hearing officer's decision must be annulled.

        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). Having found that the Board of Education offered to provide respondents' son with an appropriate educational program for the 1996-97 school year, I must dismiss respondents' cross-appeal.



IT IS ORDERED that the decision of the hearing officer which found that respondents' son needed to receive forty hours of instruction with the ABA technique per week in order to have a free appropriate public education during the 1996-97 school year is hereby annulled.

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