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Application of a CHILD WITH A DISABILITY, by his parents, 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


Advocates for Children of New York, attorneys for petitioners, Sonia Mendez-Castro, Esq., of counsel

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Muriel Goode-Trufant, Esq., and Tania M. Torno, Esq., of counsel


       Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioners’ son be enrolled in a specialized instructional environment-III (SIE-III) class in respondent's P. 811 for the 1997-98 school year. The hearing officer denied petitioners’ request that the board of education be required to pay for their son's placement in the Brooklyn Blue Feather Early Learning Center (Blue Feather), which is a private school for special needs children. The appeal must be sustained in part.

        At the age of 18 months, petitioners' son reportedly stopped responding to his name and uttering words. Petitioners had the boy evaluated at the Brooklyn Speech Center. He was thereafter evaluated at New York Eye and Ear Hospital, which reportedly found that the boy's hearing was normal. At that time, the child was receiving speech therapy twice per week at the New York Eye and Ear Hospital.

        In September, 1995, petitioners had their then almost three-year old son evaluated at the Beachbrook Nursery School for preschool special educational services because they were concerned about the child's lack of communicative language, his inability to relate to others, and his severe resistance to limits. A Beachbrook social worker recommended that the child be placed in a therapeutic nursery program.

        Petitioners enrolled their son in the Northside Therapeutic Early Childhood Center (Northside) in January, 1996. In April, 1996, the child was referred for a psychiatric evaluation, because the Northside staff were concerned about the child's autistic-like behavior and lack of speech. The private psychiatrist noted that the child had manifested marked impairment in social interaction, severe speech and language deficits, and restricted and stereotypical behavior when he had been evaluated by a psychologist in September, 1995. He reported that the boy had not appreciably interacted with him, and displayed only limited relatedness to his mother. Finding that the child continued to have a marked impairment in social interaction, severe deficits in his speech/language skills, and manifested restricted and stereotypical behavior, the psychiatrist diagnosed the child as autistic.

        Petitioners were concerned that their son was not progressing at Northside. The Northside staff suggested that petitioners consider the Joan Fenichel Therapeutic Nursery at the League Treatment Center (Joan Fenichel Nursery) which provided a more specialized program for autistic children in a smaller, more structured setting. Petitioners enrolled their son in the Joan Fenichel Nursery commencing October, 1996.

        In an occupational therapy evaluation which was performed at the Joan Fenichel Nursery in July, 1996 prior to his placement there, the child was described as actively avoiding eye contact, and having significant sensory processing problems, limited strength in his hands and limited sitting tolerance. The occupational therapist opined that the child needed a special preschool with 12-month programming and a low student to teacher ratio. She recommended that the child receive occupational therapy three times per week. An occupational therapy update was completed in December, 1996, after the child had completed two months at the Joan Fenichel Nursery. The occupational therapist noted that the child’s eye contact was more frequent, sometimes lasting up to three seconds, and that he was beginning to explore and manipulate with his hands. She reported that he continued to be hypersensitive to visual, tactile and auditory stimuli, and that he had fine motor, gross motor, and activities of daily living delays.

        A speech, language and hearing update was completed on December 2, 1996 by staff at the Joan Fenichel Nursery. At the time, the child was receiving speech/language therapy for thirty minutes twice per week on an individual basis. The child scored at the three month level in auditory comprehension, the six month level in expressive communication, and achieved a total language score of five months on the Preschool Language Scale–3, placing him in the 1st percentile. The speech/language pathologist noted that the child exhibited a profound expressive and receptive language disorder which was characterized by extremely diminished verbal output, an inability to follow directions and an inability to relate to peers and adults. She recommended that he continue to receive individual speech/language therapy three times per week.

        A psychologist who was the treatment coordinator for the child's class evaluated the child in December, 1996. The psychologist reported that petitioners' son had scored below the first percentile for each domain of the Vineland Adaptive Behavior Scales, Interview Edition. The psychologist noted that the child had deficits in the areas of speech, social relatedness, and cognitive functioning when he began attending the Joan Fenichel Nursery, and he reported that the child was now making brief eye contact and sat for longer periods of time. However, the child often cried and tantrummed during transitions, and did not interact at all with his peers. The treatment coordinator opined that the Applied Behavioral Analysis (ABA) instruction that the child received was instrumental in his progress. The ABA methodology generally involves breaking down a skill or task into many small steps, which the child is then taught to do in a series of discrete trials. The child's performance is carefully monitored and recorded. After the child has mastered a skill or task in the carefully controlled environment, i.e., a discrete trial, the child's teacher then attempts to have the child "generalize" his newly acquired ability, i.e., apply that ability in other settings, or contexts. Additionally, the psychologist noted that the child had significant problems with language, social interactions, and the ability to tolerate sensory stimuli. He recommended continued placement in a therapeutic setting which utilized ABA as its primary methodology.

        In an educational evaluation update completed by the child’s teacher on December 16, 1996, the child was reported to have severe delays in all functional levels. However, the teacher indicated that the child had made progress in imitating some simple gestures, making better eye contact, and tolerating hand over hand assistance to scribble on paper. She indicated that the child continued to need individualized lessons in a very structured classroom, with short activity periods and a behavioral program.

        The child aged out of the preschool program at the end of the 1996-97 school year. To prepare for his next educational program and placement, he was referred to respondent's CSE. A CSE school psychologist who evaluated the child on April 2, 1997 reported that the child had scored at the four month old developmental level on the Bayley Scales of Infant Development. Although the child’s gross motor skills were found to be age-appropriate, his fine motor skills were below age level, which, reportedly, contributed to both coordination difficulties and resistance to tasks. Cognitively, the child performed some tasks at the 13 month level, but most of his abilities were the four month level. His language and social skills were the least developed. The school psychologist recommended a structured program for the child which focused on small steps and offered immediate reinforcement. She opined that an additional year in a pre-K setting would be to the child’s advantage because of his need for consistency.

        An educational evaluation and classroom observation were completed on April 2, 1997 by the district’s educational evaluator. The evaluator noted that the child was extremely low functioning, and that he required step-by-step instruction, prompts and reinforcement from his teacher. The evaluator reported that the child was able to feed himself with direction and that he required toileting assistance. She noted that the child was non-verbal, and he did not play directly with other children. He did engage in parallel play. She also noted that during ABA activities the child was resistant to the reinforcement schedule, and that he did not focus on stimuli unless prompted. The educational evaluator observed that the child had few socialization skills, no academic readiness skills, and was at a sensory motor level of functioning.

        On April 30, 1997, respondent's CSE met with the child's parents and his teacher to recommend a classification and placement for the child during the 1997-98 school year, which was his first year as a school-aged child. The CSE recommended that he be classified as autistic, and that he be placed on a twelve-month basis in a SIE-III class with a 6:1+1 child to adult ratio, and that he have a 1:1 crisis management paraprofessional. It also recommended that the child receive individual speech/language therapy three times per week and individual occupational therapy three times per week. The child's individualized education program (IEP) indicated that the child "requires a highly structured class that is self contained geared for autistic children including applied behavioral analysis methodology plus individualized para [aide]" (Exhibit 16). By notice dated June 16, 1997, respondent informed petitioners that a placement would be available for their son in P. 811, which is a special education "school" within respondent's P. 329 in Brooklyn.

        At the hearing in this proceeding, the child's mother testified that her son had made progress in his receptive language skills and he had learned to drink from a cup, feed himself, and undress himself, while in an ABA class at the Joan Fenichel Nursery. She also testified that after receiving the letter advising her of the CSE's recommendation, she visited the school where her son would be placed. As the program was not yet operational, the assistant principal for P. 811 had described the plans for the program, but was unable to describe the other students in the class in terms of age or similarity of needs. The child’s mother also testified that the assistant principal was unable to provide any information with respect to the training of the teachers who would be teaching the class. She expressed the concern that her son would not be successful in a program, unless it was similar to the ABA program of the Joan Fenichel Nursery. The child's mother testified that Blue Feather would provide a similar educational program.

        The principal of Blue Feather testified that there would be a new program for school-aged children in the Fall of 1997, consisting of two classes for children with autism. Eight children would be in each classroom. The teacher in each class would be assisted by four assistant teachers. Three interns would also work in the classroom. The principal testified that the students would have a full day of discrete trial teaching. She opined that petitioners’ son was appropriate for the program. She also testified that there was no opportunity for mainstreaming at Blue Feather, and that the only related service that the school could offer was speech/language therapy.

        The treatment coordinator at the Joan Fenichel Nursery also testified on behalf of petitioners. He testified that he accompanied the child’s mother to visit the proposed program at P. 811. He stated that he was concerned about the lack of information about the program. He believed that the child benefited from a one-to-one discrete trial training program. He further testified that he could not conclude that the recommended program was appropriate for the child because it incorporated traditional techniques and would not provide sufficient discrete trial training to benefit the child.

        The education supervisor at the Joan Fenichel Nursery and the child’s teacher also testified on behalf of petitioners. Though neither of them had observed the proposed program, based on the information that the treatment coordinator had given them, or their knowledge of other SIE III programs, they both believed that such a program was not appropriate for the child. The education supervisor and the child’s teacher indicated that they were concerned that the recommended program was not yet operational, because of the time and effort required to set up such a program. The education supervisor testified that the program at P. 811 would rely upon sensory motor training, which worked well for some autistic children, but which had been unsuccessful for this child while he attended Northside. The education supervisor also testified that she visited Blue Feather with the child’s mother. She stated that it was very similar to the child’s current program, and she felt it would be an appropriate educational setting for the child.

        The district’s educational evaluator and psychologist, and the assistant principal of P. 811 testified on behalf of respondent. The educational evaluator testified that based on the evaluations she reviewed, the SIE-III program would be appropriate for the child because of the low student to teacher ratio and the related services it offered. She further testified that it employed task analysis, i.e., the breaking down of a task into its smallest teaching component. She indicated that the proposed program could also utilize ABA instruction and discrete trial training. However, she had no personal knowledge of how the program would be implemented at P. 811. The district’s psychologist testified that the SIE-III program would be an appropriate program for the child because it is a multifaceted program that, in addition to ABA, would employ other techniques, such as sensory motor training. She suggested that the child might have difficulty benefiting from the use of the ABA methodology because he did not yet have the concept of symbolic representation.

        The assistant principal at P. 811 testified that he had been trained to use the ABA methodology, and that he was training the teachers who had been hired for the two SIE-III classes at P. 811 to use that methodology. He also testified that respondent's standard SIE-III curriculum would be used, but it would be modified once the staff became aware of the children's specific needs. The assistant principal further testified that the SIE-III program would stress total communication, and teach functional academic and vocational skills. He opined that it would be appropriate for petitioners' son.

        In his decision, which was rendered on August 19, 1997, the impartial hearing officer noted that one of the parents' objections to the recommended SIE-III placement was that respondent's educational program did not make sufficient use of the ABA teaching methodology. However, he found that the parents' preference for the use of a particular methodology was not dispositive. He further noted that respondent's assistant principal had testified that the ABA would be used, albeit not exclusively, in the SIE-III placement. The hearing officer also noted that the parents had been unable to obtain a class profile of the children in the recommended placement. However, he found that the lack of a profile was not fatal because the child's proposed class was still being created at the time of the hearing. The hearing officer held that the board of education had met its burden of proving that it had offered an appropriate educational placement to petitioners’ son.

        In this appeal, petitioners do not challenge their son's classification as autistic, or the CSE's recommendation that the child should receive the related services of speech/language therapy, occupational therapy, and the services of a crisis paraprofessional. They contend that the hearing officer wrongly characterized their dispute with the CSE's recommendation as merely a disagreement about teaching methodologies. Petitioners further contend that the record does not support the hearing officer's determination that the recommended SIE-III placement would have provided an appropriate educational program to her son. Specifically, petitioners assert that respondent's failure to provide them with a class profile deprived them of an opportunity to make an informed judgment about the proposed SIE-III placement, and it precluded respondent from demonstrating that their son would have been suitably grouped for instructional purposes with children who have similar needs and abilities.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program 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 recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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).

        Petitioners have not challenged their son's IEP, in terms of its description of the child's needs. I have nevertheless reviewed the IEP, and I find that it does accurately reflect the results of the child’s evaluations. Petitioners also have not challenged their son's IEP annual goals and short-term instructional objectives. I have reviewed them, however, because it is important to establish that the IEP goals and objectives are appropriate before determining what special educational services are required to afford the child a reasonable chance of achieving his goals and objectives. Having reviewed the child's IEP annual goals and objectives, I find that they appear to be based upon the child's present levels of performance, and that his IEP annual goals describe what the child could reasonably be expected to achieve in a twelve-month period (see 34 CFR 300, Appendix C, Question 38).

        The pivotal issue in this appeal is whether the special educational services recommended by the CSE, i.e., instruction in a SIE-III classroom, would have afforded petitioners’ son a reasonable chance of achieving his IEP annual goals and objectives. Respondent's assistant principal testified that the SIE-III program seemed to be appropriate for the child as it is a program for children with autism. He testified that it would provide ABA instruction, which would be consistent with the IEP notation to which I have referred. The assistant principal further testified that other techniques would also be used, which is consistent with the opinion expressed by respondent's school psychologist. Nevertheless, I am struck by the fact that respondent's witnesses testified that the SIE-III program would be appropriate primarily because that is respondent's program for autistic children. However, they did not, in my judgement, explain how this program would meet the child's specific needs and would enable him to meet his IEP goals. I recognize that the SIE-III class which had been recommended for this child was a new program for this school. Nevertheless, respondent had the responsibility to demonstrate that the proposed placement would have afforded the child a reasonable chance of meeting his IEP goals and objectives. I am constrained to find that upon this record respondent failed to do so.

        Respondent was also required to demonstrate that it had complied with the regulatory requirement to suitably group the child with other children for instructional purposes (8 NYCRR 200.6 [a][3]; 8 NYCRR 200.13 [a]). Typically a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile, i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having an employee testify about the needs of those children. At the hearing in this proceeding, the assistant principal was unable to provide information about the needs of the other children because the class was still being formed. Although I recognize that the hearing was held approximately one month before the beginning of school, I am not persuaded that respondent was relieved of its obligation to show that the boy would have been similarly grouped (Application of a Child with a Handicapping Condition, Appeal No. 91-25). At the very least, respondent should have provided information about the selection criteria which were to be used for placing students in the recommended classroom. Moreover, the assistant principal testified that site offers had been made to the parents of children who might be enrolled in the two SIE-III classes. Given the limited number of children involved, I see no reason why respondent could not have prepared a profile with the data for those children. I note that respondent has submitted a class profile with its answer. Although I may accept evidence which was unavailable at the time of the hearing to make the record which is before me complete, I find that the profile does not provide enough specificity for me to conclude that petitioners' son would have been suitably grouped for instructional purposes.

        Although I have found that respondent did not meet its burden of proving that it had offered an appropriate educational program to the child, I must deny petitioners' request that I order respondent to place the child in Blue Feather because there is very little information in the record about how that school's program would have met this child's needs. The program at Blue Feather provides a full day of discrete trial teaching with the goal of mainstreaming the child. However, it is by no means clear that he requires that methodology as his exclusive instructional methodology. I note that the child's evaluations describe a number of areas in which the child has reportedly progressed as a result of his ABA training. However, there is no clear mastery of these skills. The record shows that he has performed inconsistently and requires prompting. Additionally, this child has a variety of needs, in addition to his pre-academic or academic needs. The record does not disclose how those needs would have been met at Blue Feather. The child's parents bear the burden of proof with regard to the appropriateness of the services which they obtained for their child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In this case, I find that petitioners failed to meet that burden. Accordingly, petitioners' claim for tuition reimbursement must be denied.

        In view of the passage of time since respondent's initial offer of a placement and the fact that both parties have more information about the child's needs and the services which are available to him, I urge the parties to hold another CSE meeting to consider what would be an appropriate placement for the remainder of the 1997-98 school year.


IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that he found that the board of education had met its burden of proving that it had offered petitioners’ child an appropriate educational placement for the 1997-98 school year.

Topical Index

Educational PlacementSpecial Class
Implementation/Assigned SchoolGroupingFunctional
Parent Appeal
Unilateral PlacementAdequacy of Instruction
Unilateral PlacementProgress