98-056

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order requiring respondent to reimburse them for the cost of the after-school, home-based instructional program for their son which employed the Applied Behavioral Analysis (ABA) technique to supplement the instructional program which respondent provided to the boy during the 1997-98 school year. The hearing officer found that the board of education had met its obligation to provide a free appropriate public education to petitioners' son. The appeal must be dismissed.

        Petitioners' son is eleven years old. The boy was initially suspected of having an autistic-like condition at the age of 18 months. Petitioners, who were then residing in New York City, placed their son in an infant and toddlers program of the New York League for Early Learning from October, 1989 to June, 1990. Petitioners moved to respondent's district, and referred the child to respondent's committee on preschool special education (CPSE). The CPSE classified the child as multiply handicapped, speech impaired and orthopedically impaired in August, 1990, and recommended that he be placed in the North Shore Preschool Development Program at North Shore Hospital in Manhasset, New York. The child reportedly attended that program for one month, but was then removed at petitioners' request. Petitioners began a program of home instruction using the ABA technique in September, 1990.

        The child came under the jurisdiction of respondent's committee on special education (CSE) because of his age, in the fall of 1992. The CSE reportedly classified the child as autistic in order to make him eligible to attend a program for autistic children in the Martin C. Barell School, which the child apparently attended from February, 1993 until December, 1993. Petitioners continued to provide the child with a home instruction program during his attendance at the Barell School. Petitioners reportedly determined that the Barell School wasn't appropriate because of differing views regarding the enhancement of their son's language (Exhibit 10). On January 6, 1994, the CSE recommended that the child receive home instruction pending an opening in the Eden II Institute for Autistic Children on Staten Island, which petitioners favored. The CSE also recommended that the boy receive individual speech/language therapy, physical therapy, and occupational therapy while on home instruction (Exhibit 2). The boy briefly attended one of respondent's kindergarten classes before attending Eden II. During the spring of 1994, the child began to attend the Eden II program on a part-time basis.

        The CSE attempted to have the child evaluated by a school psychologist in early April, 1994. However, the school psychologist reported that the child was very distressed during testing, which was discontinued before results could be obtained. In April, 1994, the child's occupational therapist reported that the child manifested moderately severe gravitational insecurity. She indicated that the boy's fine motor skills were limited by tactile defensive behavior and poor bilateral integration. Although he could consistently perform many of his daily living skills, the child could not put them together for function. The child was able to remain engaged throughout each 45-minute therapy session (Exhibit 7).

        Petitioners' son began to attend Eden II on a full-time basis in the summer of 1994. His parents continued to provide him with a home instructional program of approximately 20 hours per week. In January, 1995, his teacher at Eden II reported that the child was beginning to answer simple "who, what and where" questions about reading. The child was reportedly building a sight-word vocabulary and beginning to phonetically sound out the letters of the alphabet. He could identify coins, and was making horizontal and vertical lines. The teacher also reported that the child participated in a daily language and play groups, and performed certain basic activities of daily living (ADL) skills, such washing his hands and brushing his teeth. His maladaptive behavior was reportedly being managed with a token economy, i.e., he received tokens for every 30 minutes of acceptable behavior, but his teacher noted that he needed to generalize appropriate behavior from school to the home environment (Exhibit 19).

        On January 26, 1995, the CSE conducted its annual review of the child. The CSE recommended that the child remain in a 6:1+2 class at Eden II on a 12-month basis, with individual physical therapy twice per week and individual speech/language five times per week. A transportation matron was added to the boy's individualized education program (IEP) because of concerns about his behavior in the car which transported him to Eden II. Petitioners approved their son's IEP (Exhibit 20).

        The CSE conducted another review of the child on May 21, 1996. To assist the CSE at that meeting, the child's teacher reported on his achievement. She indicated that his sight word vocabulary was more than 100 words, and that his reading comprehension skills were at the second grade level. The teacher also indicated that the child could add double-digit numbers while using a number line, and could tell time up to 25 minutes. She reported that he had difficulty concentrating while in a larger group, and was continuing to use the token economy to manage his behavior. The Eden II speech/language therapist reported that petitioners' son used 4-6 word utterances to communicate his wants and needs. A school psychologist who had observed the child at Eden II reported that his teacher had not noted there were any significant concerns about the child's behavior.

        The CSE amended the child's IEP to provide that he would attend the Genesis School in Plainview, New York, as of July 1, 1996. I note that at the hearing, the child's mother testified that her son began to attend Genesis School in September, 1996. The Genesis School is a satellite of Eden II, and offered a comparable 6:1+2 placement in which the ABA technique was used. The CSE changed the boy's placement to the Genesis School because it was closer to petitioners' house than Eden II. Petitioners approved their son's amended IEP (Exhibit 27).

        The CSE reconvened on September 2, 1996 to consider petitioners' request that their son be transported from an after-school recreation/respite program at the Sid Jacobson Jewish Community Center (JCC) in East Hills, New York to petitioners' home. Respondent was then transporting the child from his home to Genesis and from Genesis to the JCC twice a week when the program was held. The CSE declined to recommend that respondent provide the requested transportation because it believed that the program at Genesis met the child's special education needs. The CSE reconsidered the issue at a meeting which was held on December 11, 1996, but it reached the same conclusion. An impartial hearing was held at petitioners' request to review the CSE's determination. An impartial hearing officer upheld the CSE's position, and petitioners appealed to the State Review Officer. In Application of a Child with a Disability, Appeal No. 97-36, I sustained petitioners' appeal, and ordered respondent to provide the requested transportation, upon a finding that respondent's transportation policy significantly limited their child's access to extracurricular activities. My decision was reviewed and upheld by the Supreme Court of the State of New York for Albany County on January 13, 1999, in a decision which was not officially reported (Roslyn UFSD v. Univ. of the State of New York et al.). An appeal from the Court's decision is still pending.

        On December 11, 1996, the CSE met to discuss the provision of physical therapy to the child. At the request of the child's mother, who was concerned about the loss of instructional time for her son when he was removed from the classroom to receive physical therapy, the CSE agreed to allow the boy's gross motor deficits to be addressed by his classroom and adaptive physical education teachers. On the following day, the child was observed at Genesis by one of respondent's school psychologists. She noted that the child's teacher had reported that he had made progress since transferring to Genesis, but that he still required individual supervision to assist him to focus his attention and reduce his self-stimulating behavior. The school psychologist reported that the child had responded well to prompts and reinforcers during lunch at the school, and that he had interacted with another student. She noted that his speech articulation was poor, but that he could make his needs known (Exhibit D-43).

        In February, 1997, the child's teacher at Genesis prepared a written report for the CSE, in which she indicated that the child had made significant gains in all areas of his educational programming since September, 1996. She noted that he related well to staff and other students, and that his attending skills had improved. The teacher reported that the child could remain on task, requiring only one or two prompts to control his self-stimulatory behavior. She also reported that he had participated in various peer interactions, and that his spontaneous conversational skills were improving. The teacher further reported that the child had become more academically independent and could do simple math problems without the use of a number line. She indicated that coin/money skills had become generalized to his homework, i.e., he could apply the skills which he had learned in the classroom to other situations. The child's teacher also reported that the child's activities for daily living (ADL) skills were weak, but he had made progress improving those skills (Exhibit 48).

        The CSE met again on March 20, 1997, when it recommended that the boy receive a physical therapy evaluation. It also agreed to petitioners' request to discontinue the child's speech/language therapy, after they indicated that they would privately provide such therapy to the boy after school (Exhibit 51). The child was evaluated by a physical therapist on May 5, 1997. The physical therapist described the boy as a pleasant youngster who was able to follow simple commands, and who ground his teeth and rocked from side to side when he was anxious. The child's range of motion was within normal limits, while his muscle tone was described as being in the low-normal range. The physical therapist indicated that the child's decreased strength in his lower extremities affected his gait, stair climbing, and gross motor ability. She indicated that the child's eye-hand coordination was fair to good, and his eye-foot coordination was fair. The physical therapist recommended that the child receive individual physical therapy for 30 minutes twice per week, and that he receive an occupational therapy evaluation.

        The child's annual review was conducted by the CSE on June 10, 1997. The CSE recommended that he continue to attend the Genesis School on a 12-month basis during the 1997-98 school year. It also recommended that the child be evaluated by an occupational therapist, and that he receive individual physical therapy twice per week. The child's IEP for the 1997-98 school year (Exhibit 57) indicated that petitioners' did not want their child removed from class to receive physical therapy, and the record reveals that he did not begin to receive physical therapy at Genesis until February, 1998. The child's IEP included goals and objectives to improve his reading, math, computer, calendar, money, time-telling, writing, language arts, and ADL skills. One of his IEP objectives was that he would generalize skills learned in school to the home setting through homework work sheets. Petitioners reportedly approved the CSE's recommendations.

        In an August, 1997 progress report (Exhibit 61), the child's teacher at the Genesis School indicated that the child's ADL skills such as dressing and using a bathroom had improved during the 1996-97 school year. She also reported that he had made progress in listening and reading comprehension, recognition of functional site words, phonics, some mathematics tasks, and writing with a computer. His spontaneous and reciprocal conversational/speech language skills had also improved, and his teacher noted that the increase in the child's spontaneous language skills had decreased his inappropriate behavior.

        In September, 1997, the child's mother corresponded with the CSE chairperson about the provision of physical therapy to the child, which had been discussed at the June CSE meeting. The child's mother requested that respondent provided physical therapy to her child after school. The CSE chairperson responded that the CSE had determined that two thirty minute pull-outs per week for physical therapy would have a minimal impact upon the child's educational program, but noted that the therapy could be provided as a push-in service in the child's classroom.

        The child was observed in class at the Genesis School by the CSE chairperson and the school psychologist member of the CSE on October 31, 1997. They observed him in two short reading activities, a mathematics activity, and a writing activity. They noted that coins were used as a reward for the boy's on-task behavior. The child was described as reading at a first grade level, and could answer questions about a story his teacher had read to him.

        The boy's occupational therapy evaluation was done on November 26, 1997. The evaluator reported that the child's fine motor skills were intact, and that he had demonstrated accurate number and letter formulation. However, he was unable to reproduce angular shapes without visual cues. The evaluator reported that the child did not perform self-skills independently, but had demonstrated that he had the pre-requisite skills to become efficient and independent in ADLs. She recommended that ADL skills be practiced at school and at home. She opined that the child did not need direct occupational therapy, but could benefit from a parent/teacher consultation with an occupational therapist to set up a structured training program for home and classroom use to improve the child's independence in school related dressing skills (Exhibit 75).

        In an unsigned report allegedly prepared by the child's teacher on December 5, 1997, it was noted that the child had engaged in 103 incidents of self-injury and/or aggression since September 22, 1997 (Exhibit 76). The report indicated that the number of "head hits" i.e., self-injury, had decreased during the fall, but the number of acts of aggression had increased during that period. The report identified seven strategies which would be used to prevent similar incidents.

        The CSE met with petitioners and their attorney on January 15, 1998 to consider the results of the child's occupational therapy evaluation and petitioners' request for an additional program for their child in their home. Notwithstanding the evaluator's recommendation that only consultant occupational therapy services be provided, the CSE recommended that the child receive 30 minutes of direct occupational therapy twice per week in his classroom. Petitioners and the CSE agreed that the boy's next triennial evaluation would not involve formal testing. However, they did not agree upon petitioners' request for an additional program of home instruction for their son. The CSE denied petitioners' request on the ground that the child was making progress in his day program at the Genesis School (Exhibit 82).

        On January 26, 1998, petitioners through their attorney requested that an impartial hearing be held to review the CSE's denial of their request for an additional instruction program, for which petitioners had been paying. They sought an order requiring respondent to reimburse them for their expenditures for the home program during the 1997-98 school year. The hearing began on March 2, 1998. Petitioners did not challenge their son's classification as autistic, nor they did they argue that their son's educational program at Genesis was inappropriate. They did contend that their son required an additional instructional program in order to remain in the Genesis program, and that their son would probably require a residential placement if he did not have an at-home program in addition to his Genesis placement. The hearing concluded on June 8, 1998.

        In his decision rendered on August 7, 1998, the impartial hearing officer noted that petitioners had been supplementing the instruction which their son had received in his various schools for a number of years, and found that there was no way of ascertaining whether the child's educational progress was solely the result of his school programs, or a combination of his school and home instructional programs. He further found that the boy had made steady progress toward achieving his IEP goals while attending the Genesis School, and that he would continue to make adequate progress without the after-school program which petitioners had provided. He concluded that respondent had met its burden of proving that it had provided petitioners' son with an appropriate educational program, and he denied petitioners' request for an order requiring respondent to reimburse them for their expenditures for the child's after-school instructional program.

        Petitioners assert that the decisions by the hearing officer and State Review Officer in the prior proceeding about the after-school transportation of their son during the 1996-97 school year should not have a preclusive effect upon their arguments about their son's educational needs during the 1997-98 school year. At the hearing, respondent's counsel had asserted that petitioners were estopped from challenging their son's educational program for 1997-98 because it was virtually identical to the boy's educational program for the 1996-97 school year which the hearing officer in the prior proceeding and I had found to be appropriate. I agree with petitioners that they are not estopped from challenging their son's educational program for the 1997-98 school year. In doing so, I note that petitioners assert in their petition that they have been satisfied with their son's placement in the Genesis School. However, they seek additional services for their son.

        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).

        In this instance, the parents do not dispute the IEP's description of their son's special education needs, nor do they challenge the appropriateness of the child's annual goals and short-term instructional objectives. Nevertheless, I have reviewed the IEP to ascertain whether those goals and objectives are appropriate and are reasonably achievable within a 12-month period, which in turn requires that I also consider this child's special education needs. Having reviewed the IEP, I find that it does accurately describe his needs, and that the IEP goals and objectives are appropriate. The central question is whether the CSE recommended an educational program which would enable the child to derive meaningful benefit from his education at the Genesis School (Application of a Child with a Disability, Appeal No. 96-29; Application of a Child with a Disability, Appeal No. 96-58).

        The child's annual goals and short-term objectives for the 1997-98 school year appear in the IEP which was prepared at the June 10, 1997 CSE meeting (Exhibit 57). A March 6, 1998 progress report from the Genesis School (Exhibit 91) shows the child's progress towards mastering these goals and objectives. The objectives supporting the goal of improving the boy's reading skills included identifying 25 new sight words, and improving his ability to independently identify the sounds of the letters of the alphabet and certain new consonant blends on a computer. The progress report indicates that the child had mastered over 20 functional sight words since September, 1997, had maintained his ability to recognize letters sounds, and had learned eight consonant blends. The child's reading comprehension skills were to improve to the point where he could answer "wh" questions after reading 2-3 sentences. The progress report indicates that he could answer such questions after reading one sentence. It further indicates that he had made substantial progress towards achieving goals related to his ability to tell time and make change. The progress report also indicates that the child had improved his ability to add numbers on a calculator, and to type sentences on a computer from a written model. The child's progress in art and science was in accordance with his goals and objectives for those subjects. The Genesis School also reported that the child was making steady progress in language arts, and could answer questions about past events and participate in a reciprocal language group involving the description of pictures. His spontaneous conversation during activities such as art and lunch had improved. The child's IEP indicates that he was expected to improve various ADL skills, such as zipping up his jacket and buttoning his shirt. The progress report reveals that the boy made progress toward achieving these objectives. He also improved his "independent skills", which was an IEP goal. The report notes that the boy had engaged in aggressive behavior, i.e., scratching, grabbing, and hitting others 4-5 times per day, and that proactive strategies were being used to address this aggression. I note that a chart of the frequency of that behavior (Exhibit 97) reveals that it was significantly reduced after March, 1998. I find that the boy's day program at the Genesis School provided meaningful educational benefit to him.

        The question which I have to decide is whether the child could reasonably have been expected to make progress towards achieving his IEP goals and objectives without the additional instruction which he received in the after-school program which his parents provided to him during the 1997-98 school year (Application of a Child with a Disability, Appeal No. 97-30). I note that the March 6, 1998 progress report states, in material part, that the boy's "... progress is due to the intensive instruction he received at Genesis. Most of [the child's] skills had been acquired through 1:1 and 2:1 discrete trial teaching. Observational learning skills are emerging."

        The Executive Director of Eden II, of which the Genesis School is a satellite, was asked at the hearing if it was possible to determine whether the boy would benefit from his program at Genesis if he did not have a supplemental home program. She testified that "It's hard to say" (Transcript, p. 719), and that she didn't know if the boy could master his IEP goals without such a program (Transcript, p. 720). She opined that the child would be likely to regress without a home program (Ibid.). On cross-examination, the Executive Director attributed the child's acquisition of skills, at least in part, to the instruction provided by Eden II and Genesis, noting that he could not possibly have worked on every skill at home that had been addressed at school (Transcript, p. 729). She also admitted that the child could learn some of what was in his IEP at school, without having to practice it at home (Transcript, pp. 732-733). The Executive Director also admitted that she knew very little about the child's home program during the 1997-98 school year (Transcript, pp. 777-778).

        The supervisor of petitioners' home instruction program testified that there was no way to tell if the boy would have made progress at Genesis if he had not had a home program, but she insisted that the boy would not have generalized the skills which he had learned at Genesis without a home program (Transcript, p. 440). However, she admitted on cross-examination that the child had progressed in generalizing skills, and that she was unfamiliar with what was being done with the child in the Genesis program (Transcript, pp. 473-474). One of the child's tutors in the home program also testified that he was unaware of the provisions of the boy's IEP during most of the 1997-98 school year.

        The child's mother testified that her son required the additional instruction which she and her husband had paid for in order for him to generalize the specific skills which he had learned in school to another setting. However, she also testified that her son had not had any trouble generalizing from a program of simple addition and subtraction which he had learned at Genesis (Transcript, pp. 703-704). The mother also testified that her son required additional instruction to prevent regression, i.e., the loss of skills which he had previously acquired. I note that the child's occupational therapist testified that she had not observed any regression in the boy's skills between her Monday and Friday therapy sessions with him, and no witness identified any skill in which the child had in fact regressed because it had not been reinforced by practice in petitioners' after-school program.

        Respondent's CSE chairperson, the school psychologist member of the CSE, and an expert witness from the C.W. Post College testified in support of the CSE's recommendation not to provide the additional instruction which petitioners were providing to their son. The CSE chairperson and the school psychologist testified that they had relied upon reports from the child's teacher, as well as what they had personally observed when they visited the boy at the Genesis School, in determining that he did not require extra instruction. The school psychologist testified that the boy's behavior during her observation of him was typical of a child with his disability. She further testified that the needs of each child determined the number of hours of ABA instruction which the child required (see Application of the Board of Education of the City School District of the City of White Plains, Appeal No. 96-81). The expert witness, who had reviewed the child's records and had observed him for 90 minutes at the Genesis School, testified that generalization at home of what had been learned at school required good communication between home in school, but not necessarily a formal tutoring program (Transcript, p. 873). After reviewing some records pertaining to the child's program (Exhibit A), she noted that his program appeared to involve much discrete trial training, which is part of the ABA technique, but she opined that it was not appropriate to simply repeat in the home program which the student was allegedly learning in school (Transcript, p. 874). The expert further opined that it would be more appropriate for the child to use the skills which he had learned. Based upon which she had observed that the Genesis School and a review of the boy's records, the expert witness opined that the child would continue to make progress in the Genesis program without the extra instructional program provided by petitioners.

        Upon the record which is before me, I find that respondent has met its burden of proof with respect to its CSE's recommendation. A board of education maybe required to pay for educational services obtained for 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]). Since I have found that respondent has demonstrated the appropriateness of the services which it provided, petitioners' claim for reimbursement must be denied.

THE APPEAL IS DISMISSED.