97-078

       Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to pay for the cost of the day care program in which respondent had placed her son for the period from February, 1997 through September, 1997, based upon his finding that the child needed to receive his special education itinerant services in a regular preschool or comparable setting in order to achieve the annual goals in the child's individualized education program (IEP). Petitioner further appeals from the hearing officer's order requiring it to pay for the cost of the child's transportation to the day care facility, and requiring the district's committee on preschool special education (CPSE) to re-evaluate the child to ascertain whether the amount of speech/language therapy which the CPSE had recommended for the child was adequate. The appeal must be sustained in part.

        Respondent's son was born on January 9, 1994, and has been identified as a preschool child with a disability by petitioner's CPSE. I note that although the parties described the child as autistic at the hearing, there is no formal diagnosis of that condition in the record before me. In November, 1996, he was referred by the CPSE to the Rainbow School for Child Development for an evaluation. In a social services intake report completed on November 7, 1996, a Rainbow School social worker reported that the child attended day care because respondent worked full-time. The day care facility, about which there is virtually no information in the record, is identified in the record as the Mosholu Montifiore Day Center (MMDC). Respondent advised the social worker that she was fluent in English and Spanish, but that she spoke only English to her son. Respondent indicated that her son tended to copy and model behavior, but did not interact with other children and was unable to express his needs or desires verbally. The social worker observed that the child was unable to understand nonverbal communication of others. She noted that he communicated in a peculiar speech, but was able to imitate sounds and words appropriate for his skill level. The social worker observed that the child showed little interest in toys. She reported that he occasionally displayed inappropriate emotional reactions, such as excessive agitation, tantrums, and aloofness or an unawareness of adults. The social worker observed that the boy demonstrated significant delays in all areas of functioning and she opined that he would benefit from intensive intervention services to assist with his development.

        In a bilingual psychological evaluation completed on November 7, 1996, when the child was two years, 10 months old, the evaluator noted that the child's performance was hindered by Attention Deficit Disorder (ADD) characteristics, lack of motivation to cooperate, inability to follow directions and model, and limited communication skills. The child was unable to respond, and resisted all forms of interaction. The boy's overall ability to concentrate, participate in structured tasks and follow the evaluator's model was reported as being significantly delayed. On the Bayley Scales of Infant Development: Second Edition (BSID II), the child obtained a Mental Developmental Index of less than 50, which corresponds to a developmental age of 19 months, placing him in the significantly delayed range of performance. The child's play skills were reported to be limited. He preferred to play alone, and chose toys designed for a child 12 to 18 months old. The child's auditory processing and comprehension skills were assessed to be commensurate with a 12-month old child, placing him within the deficit range. The evaluator reported that the child followed simple commands such as "sit down" and "give me", but he was unable to follow simple two-step commands, point to major body parts or discriminate among three objects. He inconsistently attended to the examiner's voice, responded to his name and associated words with objects and requests. The child's expressive language skills were assessed to be commensurate with a child between 16 and 18 months of age, placing him in the deficit range. The evaluator reported that the boy communicated his wants and needs by pointing, gesturing, protesting and using unintelligible vocalizations rather than using words. The boy's nonverbal abilities were also found to be in the deficit range. His overall ability to use visual perceptual and organization skills, see spatial relationships, and participate in visual motor tasks was commensurate with a 12-13 month old child. The evaluator also noted delays in the child's fine motor skills.

        Respondent provided the information to the evaluator for the Vineland Adaptive Behavior Scale. Based on respondent's responses, the evaluator assessed the boy's receptive communication skills to be delayed by 20 months and his expressive communication skills to be delayed by 18 months. The child evidenced an overall communication delay of 17 months, placing him in the low range. The boy's socialization skills fell within the moderately low range when compared to his peers. He preferred to play alone, did not imitate adult phrases, and did not share readily or play well with other children. The evaluator reported that the child exhibited atypical social relatedness, the characteristics of a child with a severe communication disorder, and delays in visual perceptual and social/emotional development. She noted that the boy's self-absorption and idiosyncratic social relatedness severely limited his ability to be tested formally, and cautioned that the test results should only be considered an estimate of the child's current functioning. She recommended that the child be given experiences which would improve his receptive and expressive language skills, and his socialization skills.

        Formal testing could not be completed during an educational evaluation which was performed on November 19, 1996 because of the child's inability to sit and follow a structured task. The evaluator estimated that the child's cognitive skills were from the six-month to the five-year age level. The evaluator reported that the child was able to state colors upon request, but had difficulty matching colors, identifying pictures, and pointing to body parts. The boy also had difficulty with number concepts. The child's language skills were judged to be within the six to 12-month age level. He did not consistently respond to his name when called, and was unable to follow directions. The child spoke in English, but did not use language to communicate his needs. The child's social and emotional skills were judged to be in the six to 12-month level. The evaluator noted that the boy's eye contact was fleeting, and that he did not show any interest in interacting with peers or adults. The child's fine motor skills were assessed to be in the 12-month age level. He had difficulty building a tower out of blocks and putting objects inside a container. The evaluator recommended goals to improve the child's socialization skills, fine motor skills and speech/language skills including requesting and labeling.

        A speech/language evaluation conducted on November 19, 1996 was based on clinical observation and information obtained from the parent because the evaluator concluded that the child was not a candidate for formal testing. The evaluator reported that the boy did not respond to auditory stimuli, and could only follow commands which were accompanied by visual cues and guidance. The boy completed receptive language tasks inconsistently and unpredictably. Expressively, the boy used gestures to reject, request, regulate and show. He vocalized to label and engage in familiar routines. However, he did not respond, engage in conversation, narrate or sequence. The speech/language pathologist reported that the child demonstrated poor auditory attention skills and limited eye contact and engaged in few communicative exchanges. She indicated that the boy's functional skills ranged from over two years below age expectancy in language processing and comprehension to approximately one year below age expectancy in gestures. She recommended that the child's speech/language goals focus on improving his auditory attention skills, facilitating age appropriate content/form skills, and increasing communicative functions with both adults and peers.

        The child was observed for one hour in his MMDC class of 11 children, one teacher and one assistant, on November 20, 1996. The children ranged in age from 18 months to just under three years old. The evaluator reported that respondent's son loved to sing, and could speak in three to five-word sentences. She noted that the child responded to his name inconsistently. He followed simple commands only when he was focused and prompted, or if the commands were repeated several times. She observed that when the child was not working with someone on a one-to-one basis, he tuned out his immediate environment. The evaluator observed that the boy played alone, and withdrew if others attempted to join him. He demonstrated an uneven relatedness in the classroom. The child's teacher reported that the boy understood all the letters of the alphabet, and could read some sight words. The teacher also reported that the boy had an agenda all his own. The evaluator opined that the child required a small, highly structured classroom environment with one-to-one assistance to develop structured play and social interaction skills. She also recommended that the child's fine motor skills be assessed by an occupational therapist.

        On December 23, 1996, the CPSE identified respondent's son as a preschool child with a disability. The CPSE recommended that the child receive Special Education Itinerant Services (SEIS), 30 minutes of individual speech/language therapy three times per week, and 30 minutes of individual occupational therapy once per week. SEIS is defined in Section 4410 (1)(k) of the Education Law as an approved program provided by a certified special education teacher on an itinerant basis at a site determined by each board of education. Those sites include an approved or licensed prekindergarten or head start program, the child's home, or a child care facility such as a day care facility. The child's IEP indicated that the SEIS and related services would begin in February, 1997, and did not identify the site at which those services would be provided. The boy's SEIS and related services were reportedly provided by employees of the Association For the Help of Retarded Citizens (AHRC) at MMDC.

        In a speech/language update completed on May 27, 1997, the child's speech/language pathologist reported that the child had developed a rapport with her, and was able to tolerate a shared activity with her for a brief period of time. The boy's eye contact with the therapist was fleeting, but it had increased. The boy's expressive language skills were described as inconsistent, and he did not use language to request an object. He enjoyed playing games with the speech/language pathologist and at times took turns, laughed and reacted appropriately. She reported that the boy's limited attention, impulsiveness and atypical behaviors significantly impeded his therapeutic progress. The speech/language pathologist recommended that the child continue to receive individual speech/language therapy three times per week.

        In a progress report which was apparently prepared by the child's SEIS teacher on May 20, 1997, the child was reported to have made progress in the social and adaptive areas of development since he began receiving SEIS and related services in February, 1997. It was noted that the boy was becoming increasingly more related to teachers and children, participated in meaningful play routines with adults, and better tolerated other children sharing his toys. He was reported to enjoy sensory play with certain materials. The boy's attention to toys was initially good, but diminished with repeated experiences, even with modeling and adult prompting. While the child used language to vocalize his desires, he did not direct his desires to any specific individual. The teacher expressed concern that although the child had made progress, he could encounter difficulties in an older class in the future because the classroom routine was more demanding. She also indicated that there could be problems addressing his management needs in a larger class with fewer adults.

        In an occupational therapy progress report, the occupational therapist reported that the child was receiving occupational therapy once per week for 30 minute sessions to improve sensory processing, visual perception and perceptual motor skills, postural control, and upper extremity strength/coordination. It was reported that the child had a poor attention span and a decreased ability to follow structured activities, but that he enjoyed activities that involved fine motor manipulation. The occupational therapist noted that the child's ability to process new information was slow. She recommended that therapy sessions be increased to two times per week for 30 minutes.

        Petitioner's CPSE convened on June 13, 1997, and recommended that the child be placed in a 12-month program. The recommended program included SEIS for 15 hours per week, as well as the related services of individual speech/language therapy three times per week for 30 minute sessions and occupational therapy twice per week for 45 minute sessions. The IEP's description of the child's management needs indicated that the child had significant behavioral and communication deficits which warranted SEIS services using applied behavioral analysis (ABA) techniques. 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 IEP included annual goals to be addressed by the child's SEIS teacher and separate goals for the speech/language therapy and occupational therapy.

        Respondent requested a hearing on July 25, 1997 seeking funding and transportation expenses for the 1996-97 and 1997-98 school years for her son's day care program. She also requested that the amount of speech/language services to be provided to her son be increased.

        The hearing was held on August 1, 1997. A representative of the CPSE, an AHRC coordinator, and a friend of respondent briefly testified. Respondent, who was not represented by an attorney, did not testify, but she expressed her position while cross-examining the first two witnesses. The hearing officer, who rendered his decision on September 18, 1997, found that the child needed to receive special education services in a regular education or comparable setting in order to achieve his IEP annual goals, and that a regular education setting was the least restrictive environment. He also found that the child's speech language goals required an educational setting for their realization. The hearing officer further found that the child's current IEP was inappropriate because it did not specify that the SEIS should be provided in a regular education preschool setting. He also found that the current placement was appropriate to meet the child's needs and that the equitable factors supported an award of tuition reimbursement pursuant to the Supreme Court decisions in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Accordingly, the hearing officer ordered petitioner to reimburse the child's parent for the cost of the day care program and transportation for the period from when special education services began in February, 1997 until the date of his decision. He directed the CPSE to amend the child's IEP to indicate that the SEIS be provided in a regular education preschool, and he remanded the issue regarding speech/language services to the CPSE to have the boy re-evaluated to determine if additional services would meet the boy's special education needs.

        The board of education challenges the hearing officer's decision on a number of grounds. Initially, petitioner asserts that the order awarding reimbursement should be reversed because it is not obligated to fund regular education preschool services for a preschool student with a disability. In addition, petitioner claims that the order awarding reimbursement violates the State Education Law, and the Individual with Disabilities Act (IDEA). Petitioner also claims that the order directing it to conduct a speech/language evaluation should be reversed because the evaluation is not necessary. Additionally, petitioner argues that transportation to and from MMDC is not necessary for the child to receive educational benefit.

        The board of education contends that it is not required by either Federal or State law to provide or pay for the cost of regular preschool education services for a preschool child with a disability. That argument was made and found to be without merit in a prior appeal involving the education of another child during the 1994-95 school year (Application of the Board of Education of the City of School District of the City of New York, Appeal No. 96-79). In that decision, it was noted that Federal law requires that a free appropriate public education, as defined in 20 USC 1401 (a)(18)(now 20 USC 1401 [8]), be made available to all eligible preschool students with disabilities, regardless of whether New York State makes educational programs available without cost to non-disabled preschool children (20 USC 1412 [2][B]; now 20 USC 1412 [a][1][A]). The hearing officer relied in part on the decision in that appeal. Petitioner contends that it was improper for the hearing officer to do so because 8 NYCRR 279.10 provides, in part, that a State Review Officer's decision shall be binding upon the parties and the Education Department, but it " ... shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any form whatsoever." I find that petitioner's argument is without merit. While the prior decision of the State Review Officer may not have been a binding precedent upon the parties in this proceeding, the hearing officer was certainly not precluded from relying upon that decision.

        Petitioner also relies upon the amendment of Section 4410 (10) of the Education Law by the addition of a new paragraph (e), retroactive to July 1, 1996, which reads as follows:

"Public special education funding provided for the purposes of this section shall not be used to purchase regular preschool educational services, day care or other child care services, or to purchase any instructional service other than special services or programs as defined in subdivision two of section forty-four hundred one of this article or in this section, and the purchase of such regular preschool educational services and child care services shall not be approvable pursuant to this section as a charge upon the municipality or the board [of education]."

        This statutory provision was in effect during the time in question in this appeal. However, it does not, and cannot, alter the Federal statutory requirement that preschool children with disabilities must receive a free appropriate public education, whatever effect the New York statute may have on the way the State and its subdivisions pay for special services. I have considered petitioner's argument that the hearing officer's order violated IDEA and the New York State Education Law by requiring the board of education to reimburse respondent for the cost of the regular education services which she reportedly obtained for her son at the MMDC. I find that petitioner's argument is without merit. As noted in the prior appeal, the U.S. Department of Education has opined that if a CPSE determines that a preschool child with a disability needs interaction with non-disabled peers as part of the child's educational program, the child's school district must make an educational program of that nature available to the child, at no cost to the child's parents (22 IDELR 630).

        The central question in this proceeding is whether the educational program which petitioner's CPSE recommended was appropriate for respondent's son. At the hearing, the respondent did not contest the amount of SEIS which the CPSE had recommended for her son (Transcript, page 29). However, she contended then, as she does now, that her son must receive that special education service in a regular education setting in order to appropriately address his special education needs, and thereby receive a free appropriate public education. The CPSE concluded that the child did not need to be in a regular education setting in order to benefit from his special education program. However, the hearing officer found that it was a necessary component of the child's special education program.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CPSE (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).

        Respondent has not challenged her son's IEP in terms of its description of the child's needs, or his annual goals and short-term instructional objectives. I have nevertheless reviewed the IEP, and I find that it accurately reflects the results of his evaluations. I have reviewed the goals and objectives, and I find that they appear to have been based upon the child's present levels of performance, and that his annual goals describe what the child could reasonably be expected to achieve in a 12-month period. The question then is what services were necessary to afford him a reasonable opportunity of achieving his IEP annual goals and objectives.

        The first three IEP goals were for the child's occupational therapy. There is nothing in those goals or their short-term objectives which required that the child receive his occupational therapy in a group setting. The next goal was for the child to increase his play skills. The objectives for that goal included sharing a toy or food with peers, participating in a group activity, waiting for his turn in a group activity, and initiating play with another child. Additional IEP annual goals involved improving the child's visual perceptual skills, his self-help skills and his speech/language skills. There was nothing in any of those goals which would have required the child to be educated in a group setting. Indeed, I must note that the limited record which is before me suggests that the child interacted almost exclusively with adults. Nevertheless, it was perfectly appropriate for the CPSE to include the goal relating to the boy's play skills on his IEP. Indeed, the psychologist, educator and speech pathologist who had evaluated the child for the CPSE in November, 1996 had recommended that the child have IEP goals to improve his interaction with peers (Exhibits 9, 10, 11). Achievement of that goal would have required him to be educated with other children. The CPSE was obligated to first consider whether the child's needs could be met if he received only related services and SEIS (Section 4410 [5][b][I]). However, the IEP goal related to improving the child's play skills could not be achieved unless the child were enrolled in some educational program. I must note that at the hearing in this proceeding, petitioner's representative took the position that the child would not benefit from placement in a more restrictive setting, such as a center-based special education program (Transcript, page 46). The alternative to a center-based program would have been a regular education program. Although I agree with the hearing officer's determination that petitioner failed to meet its burden of proof with respect to the appropriateness of the special education program recommended by the CPSE, I do so on the grounds that the services which the CPSE recommended were inappropriate because they did not afford the child a reasonable opportunity of achieving his IEP goals and objectives. Having prepared an IEP with objectives such as having the child learn to share toys with his peers and to participate in group activities, the CPSE was required to recommend an educational program in which the child could have achieved those objectives. SEIS alone would not be adequate since the child's play skills goal and objectives required that he improve his interaction with peers, necessitating a placement in which he could interact with peers.

        A board of education may be required to pay for educational services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). Having found that petitioner did not prevail with respect to the first of the three criteria for tuition reimbursement, I now turn to the second criterion, i.e., whether respondent has met her burden of proof regarding the appropriateness of the services which she obtained for the boy at MMDC (Application of a Child with a Disability. Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57). I must note that respondent chose not to present evidence about MMDC. However, I have considered the progress report which was apparently prepared by the child's SEIS teacher (Exhibit 4). That report indicated that the child had made some progress towards achieving the first, second, and fifth objectives under the goal of improving his play skills. In addition, he also made progress toward achieving the second objective of his behavioral goal, and the second and fourth objectives of the goal for improving self-help skills. Under the circumstances, I find that respondent met her burden of proof with respect to the appropriateness of the MMDC services for her child. There is nothing in the record to indicate that respondent failed to cooperate with the CPSE, or that her claim for reimbursement should be barred by laches. Therefore, I find that equitable considerations support respondent's claim for reimbursement, which is the third criterion for a reimbursement award.

        With regard to respondent's claim for reimbursement for the child's transportation to and from MMDC, I note that Federal statue defines the term "related service" to include transportation (20 USC 1401 [a][1]), while neither State statute nor regulation includes transportation within the definition of related services. Nevertheless, Section 4410 (8) of the Education Law requires the board of education to provide suitable transportation to preschool children with disability. Having found that the board of education should have provided the child with an educational experience in which he could have achieved his IEP goal and short-term objectives relating to his play skills, I find that petitioner is liable to respondent for the cost of expenditures for her son's transportation to and from MMDC for the period covered by the hearing officer's decision.

        The last issue to be determined is whether the hearing officer was correct in ordering that the child's speech/language needs be reassessed. The hearing officer found that the evidence was inadequate to determine whether the child required additional speech/language services. He directed petitioner's CPSE to direct that an evaluation be conducted and to convene to determine if additional services would meet the child's special education needs. Specifically, the hearing officer directed that the evaluation should address respondent's concern that her son's speech/language sessions should be for more than 30 minutes because of his attention problems and difficulty focusing. Petitioner contends that, in the absence of a finding that the completed evaluations were inadequate, there was no justification for the hearing officer's order. Although an impartial hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5 [c][6]), the power to order that an evaluation be performed is not unlimited. The hearing officer based his decision on his finding that the evidence was inadequate to determine that issue. I disagree. There is no evidence in the record indicating that the child would benefit from increased services. In the speech/language evaluation, the speech/language pathologist indicated that the boy was making progress. She noted that the boy's limited attention, impulsiveness and atypical behaviors impeded his therapeutic progress. However, she did not recommend that services be increased. In fact, the speech/language pathologist recommended that the child continue to receive the same amount of individual speech/language therapy in 1997-98 as he had received in the 1996-97 school year. At the hearing, the coordinator of the services provided to the child testified that he believed that the speech/language services were adequate. He further testified that he was never advised by the child's speech/language pathologist that 30 minute sessions were not adequate. Based on the record before me, I find that there is sufficient evidence to determine that the recommended speech/language services were appropriate.

        I have considered the other arguments raised by petitioner which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision, to the extent that it directed the child to be re-evaluated to ascertain his speech/language needs, is hereby annulled.