97-030

       Petitioners appeal from the decision of an impartial hearing officer who concluded that respondent was not obligated to assume the cost of providing petitioners’ then preschool aged child with fifteen hours of home instruction per week in addition to the thirty-hour program of instruction which respondent’s committee on preschool education (CPSE) had recommended that the child receive during the 1995-96 school year. The appeal must be sustained.

        In the fall of 1993, petitioners referred their two-year old son to an infant toddler outreach program because they and the child’s pediatrician were concerned about delays in the boy’s speech and language development. The speech pathologist who evaluated the child reported that the child’s receptive and expressive language skills were delayed by at least one year. His pragmatic language skills, phonology and articulation were reported to be similarly limited. The boy’s hearing was thought to be normal, and deafness was not suspected as the cause of the boy’s speech/language deficits. The speech pathologist recommended that petitioners’ son be placed in a center-based educational program which was language-based, and that he receive speech/language therapy. The child was also evaluated by a school psychologist, who reported that the boy’s cognitive skills could not be accurately assessed because of his difficulty responding to structured test items. The boy’s gross motor skills were described as being adequate. On the Vineland Adaptive Behavior Scales, the child achieved age equivalent scores of 8 months for communication, 14 months for daily living, 10 months for socialization, and 22 months for motor skills.

        In February, 1994, the child was placed in the Starting Early Program of the Developmental Disabilities Institute (DDI), under the auspices of the New York State Early Intervention Program (Title II-A of the Public Health Law). At DDI, the boy received special education instruction in a class of no more than eight children for two and one half hours per week, as well as one hour of speech/language therapy per week. In March, 1994, a DDI team leader recommended that the boy’s special education instruction be increased to four hours per day during the 1994-95 school year, and that petitioners receive one hour of training per month. An occupational therapist who evaluated the boy in April 1994, noted that the child had a brief attention span, and was highly distractible. She reported that the child displayed self-stimulatory movement, and was over-sensitive to touch. She opined that the child appeared to have a poorly modulated sensory system, and she recommended that he receive occupational therapy twice per week.

        In April, 1994, the child was referred to respondent’s CPSE to recommend a placement for the 1994-95 school year, because he would be three years old during that school year and would be under the CPSE’s jurisdiction. In May, 1994, the CPSE recommended that the child be placed in a 6:1+2 class at DDI for four hours per day, with individual speech/language therapy three times per week, individual occupational therapy twice per week, and individual psychological services twice per week. The CPSE adopted individualized education program (IEP) annual goals to improve the boy’s speech/language skills, his ability to visually and auditorially attend to questions and directions, and his ability to interact and play at an appropriate age level. The child’s mother reportedly accepted the CPSE’s recommendation. Upon receipt of a recommendation from DDI in August, 1994 that the child’s instructional program be lengthened to six hours per day, the CPSE amended his IEP accordingly..

        The child remained in the Starting Early Program through the summer of 1994. In September, 1994, he entered the six-hour per day program at DDI which the CPSE had recommended for him. The applied behavior analysis (ABA) methodology was used in that program to instruct the boy. ABA is an instructional technique which is used with autistic children. It involves analysis of a child’s strengths and weaknesses in various "domains", and the use of data-based programming to increase or decrease certain behaviors of the child (Exhibit 29). Petitioners also arranged to have their son instructed at home, in addition to his DDI program, at their expense. At the hearing in this proceeding, the child’s mother testified that she was dissatisfied with her son’s class because it did not provide him with sufficient structure. In November, 1994, the boy was placed in another DDI class which had only one other student, which allowed him to receive much more individual instruction. However, other children were assigned to that class during the spring of 1995.

        On May 4, 1995, the child was evaluated by a psychologist at the Institute for Basic Research, which is located on Staten Island. The child showed an interest in putting together one simple puzzle, and could count numbers with hand over hand prompts. He could identify some letters of the alphabet, and was attentive while his mother read him a story. The psychologist reported that the child was able to imitate the sounds of certain words, such as clock, dinosaur, elephant, frog and girl, which had been pronounced for him. The child could complete the simple statement "I want ," but he exhibited quite a bit of echolalia (repetitive sounds), especially when he was inattentive. Based upon information provided to him by petitioners, the psychologist reported that the child was beginning to use two words in simple sentences which he had been taught. The child reportedly did not become upset by changes in his routine, but did engage in repetitive behavior. With information provided by petitioners, the psychologist reported that the child had achieved age equivalents of 17 months for communication skills, 21 months for daily living skills, 13 months for socialization, and 27 months for motor skills. He diagnosed the child as having an autistic disorder, and he recommended that the child should continue to be instructed using the ABA technique. The psychologist recommended that the boy initially receive 1:1 instruction, and that his parents be trained in the use of the ABA technique. I must note that the record reveals that petitioners had been trained by DDI for that purpose during the 1994-95 school year. I should also note that although there is no dispute about the child having autism, his classification by the CPSE as a preschool child with a disability was appropriate (see 8 NYCRR 200.1 [ee]).

        The CPSE conducted its annual review of the child on May 11, 1995. In the boy’s IEP for the 1995-96 school year, which was prepared at the annual review, the CPSE indicated that petitioners’ son continued to have severe difficulty relating appropriately to adults and peers, and that he continued to need a great deal of structure and strong supervision in order to function successfully in an educational setting. A comparison of his annual goals for the 1994-95 school year with those for the 1995-96 school year suggests that the boy made modest progress during the 1994-95 school year. For the 1995-96 school year, the CPSE recommended that petitioners’ son continue to attend the DDI, on a twelve-month basis, in another class with a 6:1+2 child to adult ratio. The recommended class was in DDI’s Young Autistic Project, which was to provide the child with intensive, 1:1 ABA training for six hours per day. Since the child would be receiving language training within that program, the CPSE did not recommend that he receive any related service in addition to his ABA training in the Young Autistic Project. The child’s mother accepted the CPSE’s recommendation. The boy entered the new program in May, 1995.

        In a letter to respondent’s special education supervisor which was dated November 27, 1995, the child’s mother asserted that her son required more than six hours per day of instruction. She indicated that she had been paying for additional instruction for the boy in his home after school, and on the weekend. The child’s mother requested that he be provided with another 15 hours of instruction per week at the public’s expense. In response to the parent’s request, the CPSE met with her on December 21, 1995. A summary of the CPSE meeting (Exhibit 18) revealed that the CPSE questioned the child’s teacher about his progress in the DDI program. The teacher reported that the boy had made some progress in developing his receptive and expressive language skills, and that he would now come when called by an adult. An educational supervisor from DDI also described the boy’s progress in the DDI program to the CPSE. Th child’s teacher reported that the boy’s academic needs were being addressed in the DDI program. Nevertheless, the boy’s teacher and the DDI supervisor recommended that the amount of the boy’s instruction be increased to 40 hours per week. The CPSE voted not to change the child’s educational program.

        On January 10, 1996, the boy’s mother requested that mediation be held pursuant to Section 4404-a of the Education Law to resolve her disagreement with the CPSE. Mediation was held in February, 1996, but the parties were unable to resolve their differences. The impartial hearing in this proceeding began on April 22, 1996. The hearing concluded on June 12, 1996. However, the hearing officer did not render his decision until March 1, 1997. In his decision, the hearing officer found that the tutorial assistance which had been provided to the boy in his home, at petitioners’ expense, was not a necessary component of the child’s educational program. With regard to petitioners’ concern that their son would regress unless he received additional instruction at home, the hearing officer found that the parent training which DDI provided " … may reasonably be resumed to assume continuity between the school program and the more extended periods at home during regression may take place".

        Petitioners challenge the hearing officer's decision on various grounds. They argue that the hearing officer should not have allowed respondent to present a rebuttal witness, after the close of petitioners' case, and that the hearing officer needlessly delayed the closing of the hearing by doing so. Petitioners' case was concluded on May 23, 1996. Respondent requested that it be allowed to call Dr. Nancy Shamow as a rebuttal witness. The hearing officer granted respondent's request. Dr. Shamow testified on June 12, 1996, which was reportedly the next available hearing date. In general, each party must present all of its evidence for those issues on which it has the burden of proof. Rebuttal evidence is not simply additional evidence. It is evidence to refute some affirmative fact which the other party has presented. In this instance, the Director of DDI's Young Autistic Program, the child's teacher, and the child's mother testified that the additional instruction which petitioners sought was an essential part of the child's educational program. Dr. Shamow testified, as an experienced educator of autistic children, that a home instructional program was not an essential part of any ABA program (Transcript, page 750). I find that her testimony was admissible as rebuttal evidence. I also note that the hearing officer overruled petitioners' objection to the admission into evidence of the child's progress report and proposed IEP for the 1996-97 school year, both of which were prepared at DDI after respondent's CPSE had denied petitioners' request for additional educational programming. I concur with the hearing officer's decision. The fact that an exhibit postdates the CPSE's decision does not per se make the exhibit inadmissible.

        Petitioners also object to the hearing officer's delay of approximately eight months in rendering his decision. While I share petitioners' concern about the delay, I find that the delay does not afford a basis for annulling the hearing officer's decision (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child with a Disability, Appeal No. 97-62).

        Before I address the merits of the parties' claims about this child's educational program for the 1995-96 school year, I must note that both parties have referred in their papers to prior judicial and State Review Officer decisions involving the education of autistic children with the ABA methodology. As the State Review Officer in this proceeding, I must base my decision about what was appropriate for this child solely upon what is in the record which is before me (8 NYCRR 279.10). The parties do not dispute the appropriateness of the ABA methodology for this child. Although there was some testimony at the hearing about the results of a research study in which certain children had received 40 hours of ABA instruction per week, petitioners do not contend that ABA instruction must be provided for at least 40 hours per week to be effective. Indeed, the Director of the Young Autism Program testified there had been no research which demonstrated that a child had to receive 40 hours of ABA instruction per week to gain educational benefit from his or her educational program (Transcript, pg. 367). Therefore, the central issue in this appeal is whether, because of his individual needs, the extra programming sought by petitioners was necessary for this child to have received the free appropriate public education to which he was entitled.

        Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child with a Disability, Appeal No. 96-33). Respondent must show that the recommended program or service is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the program or services provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h] [1]; 8 NYCRR 200.6 [a] [1]). A school district which fails to provide all of the services which a preschool child with a disability requires in order to have 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 their child (Application of the Bd. of Ed. of the Eastchester UFSD, Appeal No. 95-58). An appropriate program begins with an individualized education program which accurately reflects the results of the child's 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). Petitioners do not challenge their son's IEP description of his needs, nor do they challenge the appropriateness of the boy's IEP goals and objectives. They do challenge the amount of special education services which the CPSE has recommended for their child in his IEP.

        At the hearing in this proceeding, the CPSE chairperson testified that the CPSE had denied petitioners' request for additional services because it had concluded that the child was making adequate progress in his center-based program in DDI, and that the additional services were not warranted in accordance with certain guidelines which the State Education Department had issued in a field memorandum dated August, 1995 (Exhibit 18). That memorandum suggested that CPSE's consider establishing a standard of five hours per day (25 hours per week) of programming for preschool children, and noted that appropriate special education programs and services could typically be provided within the course of the regular school day. However, the memorandum also indicated that educational programming could be provided in excess of the school day when the extraordinary needs of the child required that more special education services be provided. The testimony by the parent member of the CPSE and that by the Suffolk County representative member of the CPSE was consistent with that by the CPSE chairperson.

        Mr. Michael Darcy, the Director of DDI's Young Autistic Program, testified that petitioners' son had been initially enrolled in that program on a temporary basis for evaluation, but that he was subsequently permanently enrolled in the program because of the progress which he made after entering the program. He further testified that the instruction which was being provided to the boy in his home paralleled with the instruction which he received in the Young Autistic Program. Mr. Darcy opined that the child would not be able to generalize, i.e., apply the learning which he had achieved in the DDI program, to other settings, unless he participated in an instructional program at home, and would therefore not benefit from his educational program (Transcript, pg. 345). He further opined that the child's progress would be much slower, if petitioners discontinued providing and/or paying for the boy's instructional program at home. With regard to petitioners' request for additional instruction of their son during the weekends, Mr. Darcy testified that when the child had not received instruction on a weekend, he regressed to the extent of not returning to the level of the preceding Friday until Tuesday.

        Ms. Lisa Bencivenga, the child's teacher in the Young Autism Program, testified that as of September, 1995, petitioners' son had very little functional language, no interaction with his peers or adults, and minimal play skills. She also testified that the child's behavior was still "a big issue". Ms. Bencivenga further testified that by May, 1996, the boy had made some progress programmatically, but that he continued to need language training, and that his behavior was still inappropriate at times. She attributed some of the boy's progress to his receipt of instructional services at home, in addition to those which she had provided to him in school. She initially testified that the data sheets which had been used to record the boys' performance during the instruction he received at home would demonstrate that some of his progress was attributable to the home program. However, she subsequently conceded that it would be difficult to demonstrate that the boy's progress was specifically attributable to the instruction which he received at home (Transcript, pg. 536). She supported petitioners' request for additional instruction at home after school hours during the week, as well as additional instruction at home during the weekends. Ms. Bencivenga testified that, notwithstanding the progress which the boy had made, he nevertheless continued to lag well behind the other six autistic children with whom she worked. Her testimony about the relative severity of the child's deficits was supported by the testimony of Mr. Darcy, who indicated that the boy had the most severe difficulties among the children who were then in the Young Autistic Program (Transcript, pg. 321). Ms. Bencivenga, who was also one of the child's private instructors in his at-home program at the beginning of the 1995-96 school year, also testified that the boy's instruction at home carried over to that environment the learning which he had achieved in school. She opined that the child's mother and the other individuals whom petitioners had hired to instruct their son were suitably trained for that purpose. It should be noted that as part of its instructional program, DDI had trained the child's parents. At least some of the individuals whom petitioners had hired to instruct their son had also received some training from DDI.

        The central question to be answered is whether petitioners' son could have been reasonably expected to achieve his IEP annual goals with the amount of education services which the CPSE had recommended for him. Unfortunately, neither party exclusively addressed that question at the hearing. Since petitioners continued to provide after-school instructional services to their son during the 1995-96 school year, it cannot be determined with certainty what he would have achieved if he had only received the educational program which the CPSE had recommended. I have carefully considered the testimony of each of the witnesses as well as the documentary evidence in the record. In view of this child's relatively severe educational deficit, as well as the fact that he did make significant educational progress while participating in both the thirty-hour DDI educational program and the program provided by his parents, I am not persuaded that he could have achieved that progress without the parents' program. Therefore, I will annul the hearing officer's determination, upon a finding that the boy should have had one hour of instruction after school on weekdays and five hours of instruction on Saturdays and Sundays.

        I note that petitioners have submitted at least a partial record of their expenditures for the child's educational program at home (Exhibit F). To the extent that they seek reimbursement for services within the 15 hour limit which I have set which were not covered by the documentation in Exhibit F, I will require them to submit proper documentation for those expenditures to respondent.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for 15 hours per week of home instruction during the 1995-96 school year, upon petitioners' presentation to respondent of proof of those expenditures in accordance with the terms of this decision.