Application of a CHILD WITH A DISABILITY, by his parent, 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
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Masako C. Shiono, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be classified as autistic and be educated in respondent's specialized instructional environment-III (SIE-III) program. Additionally, petitioner appeals the hearing officer's denial of his request for tuition reimbursement for the cost of his son's tuition at the Association in Manhattan for Autistic Children (AMAC) for the 1998-99 school year. The appeal must be dismissed.
Respondent has raised some procedural issues which I will address before reaching the merits of this appeal. Initially, respondent asserts that petitioner's appeal is untimely. State regulation requires that a notice of intention to seek review of an impartial hearing officer's decision be served within 30 days after receipt of the decision, and that the petition be served within forty days after receipt of the decision (8 NYCRR 279.2 [b]). The hearing officer's decision in this proceeding was dated December 3, 1998. Although there is no evidence in the record as to when petitioner received a copy of the decision, the record shows that the notice of intention to seek review, dated January 4, 1999, was not served upon respondent until January 12, 1999. In an attorney's affirmation, petitioner's attorney indicates that he made arrangements to have the notice of intention to seek review served on January 4, 1999. However, on January 12, 1999, he discovered that it had not yet been served, then promptly served respondent. Respondent acknowledges in its answer that it was served on January 12, 1999. The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer. The record in this matter was so provided. I find that petitioner's minimal delay in serving the notice of intention to seek review had no impact upon this proceeding.
Respondent further argues that the petition was served less than 10 days after service of the notice of intention to seek review in violation of state regulation. However, respondent has failed to show that it was prejudiced by such action. Under the circumstances, I will exercise my discretion and excuse petitioner's failure to comply with the requirements of Section 279.2 [b] of the Regulations of the Commissioner of Education (Application of a Child with a Disability, Appeal No. 95-20; Application of a Child with a Disability, Appeal No. 97-37).
Respondent asks that I excuse its delay in serving the answer. It asserts that it was unable to file an answer within 10 days from the day the appeal was served because petitioner did not allow 10 days between service of the notice of intention to seek review and the petition. I must note that the trigger for filing an answer is the service of a petition, not service of the notice of intention to seek review. However, there is no indication in the record that petitioner was prejudiced by respondent's delay in filing an answer. Under the circumstances, I will excuse the delay and accept respondent's answer.
Petitioner has annexed those portions of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) that describe pervasive development disorders to his petition for the purpose of completing the record and challenging the testimony of respondent's witnesses. Respondent argues that such information should not be considered because it was available at the time of the hearing and it fails to establish that the classification of autism is improper. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). Given that the child's classification is at issue, in this proceeding, I will accept the information so that I will have a more complete record. However, I note that for the child to be classified as autistic for the purposes of this proceeding, he must meet the definition of an autistic child which is set forth in 8 NYCRR 200.1 (mm) (1), rather than the definition contained in the DSM-IV.
Petitioner's son was five years old and attending AMAC at the time of the hearing. He was initially evaluated by the Community School District 11 committee on preschool special education at the request of his mother for possible preschool special education services. The record does not include any additional information about that evaluation. In a medical documentation form dated May 7, 1996 when the child was nearly three years old, a physician indicated that the child had a progressive developmental disorder and feeding problems, and recommended that he receive occupational therapy to address the feeding problems. There was also a notation on the form that the child had poor interaction and no speech.
In July, 1996, the child entered the Herbert G. Birch Early Childhood Center (Birch). In a medical record dated April 29, 1997, the physician indicated that the results of the child's physical examination were normal, except for communication. However, she also listed autism, developmental delay and eating problems in the diagnosis portion of her report (Exhibit 14). In another medical record dated April 27, 1997, the same physician diagnosed the child as having a pervasive developmental disorder (Exhibit B). The physician recommended that the child receive one-on-one instruction for eating.
In an educational progress report conducted on December 12, 1997, when the boy was approximately 52 months old, a Birch special education teacher indicated that the child exhibited global developmental delays as well as autistic-like characteristics. She reported that the child displayed solid non-verbal cognitive skills up to the 30 month level. She further reported that he was able to follow the classroom routine 90 percent of the time with the support of a variety of cues. The evaluator indicated that on most occasions, the child would turn his head and make eye contact in response to having his name called. Additionally, the child was able to follow many verbal directions and could understand less familiar commands with the aid of two-dimensional visuals, photographs and gestural prompts. With respect to the child's expressive communication skills, the evaluator noted that the child knew words within a familiar context such as circle time song lyrics and frequently used expressions. However, she noted that the child would not speak when requested to do so, appeared to be speaking more to himself than others, and continued to reach or point to objects that he desired.
The evaluator further reported that the child demonstrated eating skills up to the 18-month level. He was able to drink from a cup and feed himself independently with a spoon, but preferred finger foods. The evaluator noted that the child's food repertoire and tolerance to new textures had increased since her last report. The child's socialization and play skills were assessed to be up to the 24-month level. The evaluator described the child as variably related, able to recognize and discriminate between familiar adults, with little interest in his peers. She noted that transitions were difficult for the child especially if he had to relinquish a favorite toy. At such times he would clench his fists, whine or tantrum.
The evaluator noted that the child enjoyed swinging on swings and sliding down slides. She further noted that less adult coaxing was required for him to participate in group gross motor activities. The evaluator indicated that the child's tolerance for imposed movements, such as climbing stairs, had increased. While the child enjoyed playing with playdoh and sand, he had limited tolerance of sensory material. The evaluator indicated that the child received individual occupational therapy twice per week.
A speech/language progress report was completed on December 1, 1997. The speech/language pathologist indicated that in addition to receiving intensive communication programming in the classroom, the child received individual speech/language therapy twice weekly for 30-minute sessions. She further indicated that the Kennedy Center was monitoring the child's development. The speech/language pathologist described the boy as a variably related child who exhibited fair eye contact. She noted that the child's overall attention to a task had increased, though it remained shortened for his chronological age, and that his distractibility varied significantly depending on surrounding activities and preference for the activity. The speech/language pathologist indicated that the child had made meaningful progress as his flexibility and ability to transition had improved, positively affecting his overall performance in school. She further indicated that the child used eye contact more frequently and in a more social and communicative manner. Additionally, with adult support that structured his play, the child focused on toys for longer periods of time, and explored and played with a greater variety of toys more appropriately and purposefully. The speech/language pathologist noted that the child continued to play by himself or with adults, rather than with his peers, although he began to play in closer proximity to his peers and showed more interest in them. She indicated that the use of the daily picture symbol/photo schedule had proven to be successful in helping the child understand and anticipate the activities in his daily schedule and had supported his verbal language development.
The speech/language pathologist noted that the child's overall initiation of communication had increased, both in frequency and with respect to the number of individuals with whom he communicated. She reported that he was able to imitate single words that adults modeled for him. The speech/language pathologist assessed the child's receptive language skills to be at the 18 to 22-month level. She noted that the child responded with greater frequency to environmental sounds and speech. The child's expressive language skills were assessed to be at the 18-month level. He communicated his wants and needs using a combination of pointing, manual signs, certain single words, vocalizations and facial expressions, photograph and picture symbols, and non-verbal means such as retrieving an item independently and manipulating an adult's hand to perform an action. The speech/language pathologist opined that individual and small group attention and interaction improved the child's participation in activities and facilitated his ability to learn language and communicate. Her assessment of the child's feeding skills was consistent with the special education teacher's evaluation.
In an occupational therapy annual review also dated December 1, 1997, the occupational therapist indicated that the child had been receiving occupational therapy since July, 1996. She reported that the child showed improvement in gross motor isolated skills and assessed his overall gross motor functioning to be at the three and one half year old age range. The child's overall fine motor skills were assessed to be at the 32-34 month age range. The occupational therapist described the boy as a visually and tactilely defensive child, hyper-active to vestibular input. She recommended that the child continue to receive occupational therapy twice per week.
A classroom observation was conducted on December 2, 1997 by one of respondent's educational evaluators. The child was observed in his classroom of seven students, one teacher and two assistants for one hour and twenty minutes. The educational evaluator observed that the child played with simple toys and did not interact with other children during free play. He was able to complete tasks including color matching, puzzles and shape sorting. The educational evaluator noted that the child's sensitivity to noise distracted him. During circle time, the child did not sing the words to the song, but he did attempt to imitate the hand and body gestures. The educational evaluator reported that the child's reading readiness skills were beginning to develop. He recognized and was able to label some upper case letters and could count by rote to ten when counting was modeled. He listened to stories and books read to the class, but did not appear to have an understanding of stories and pictured scenes.
An updated social history evaluation dated December 12, 1997 was prepared by a social worker based upon an interview with the child's mother. The child's mother advised the social worker that she was in the process of toilet training her son. The child's mother also expressed her concerns about her son's feeding problems. With respect to the child's speech and language development, the child's mother indicated that her son could communicate using two word utterances. She indicated that her son was beginning to recognize and name letters, and that he enjoyed looking at books and magazines. The child's mother further indicated that the child enjoyed music.
In a psychological evaluation conducted on March 26, 1998, the school psychologist observed that the child appeared to be at ease with the physical world. She noted that except for an occasional one syllable utterance, the child did not speak. She further noted that the child looked to his teacher for support, permission and/or reinforcement, and there appeared to be a nonverbal connection between them. The child had minimal contact with his peers. The school psychologist reported that in July, 1997, the child received a total score of 41 on the Childhood Autism Rating Scale (CARS), placing him in the severely autistic classification. The school psychologist reported that the child's areas of relative strength included body use, object use, visual response and activity level. The child's areas of greatest impairment included relating to people, initiation, adaptation to change, listening response, sensory response, verbal and nonverbal communication and level and consistency of intellectual response. The school psychologist concluded that the child was moderately to severely autistic. She recommended that he receive full-time small group instruction in a highly structured setting designed for autistic children.
A note signed by the child's physician dated April 7, 1998 indicated that the child had pervasive development disorder. A notation by an unidentified writer on the physician's note indicated that the child's physician believed that autism was an appropriate description for the child.
The CSE met on April 7, 1998. It classified the child as autistic, and recommended that he be placed in a SIE-III program with counseling, speech/language therapy, and occupational therapy, as well as the assistance of an aide for feeding. The child's individualized education program (IEP) developed at the meeting includes the results of the evaluations and reports described above. Respondent offered the child a placement in its Bronx School for Children with Autism, also known as P.S. 176. P.S. 176 is a "school within a school", located in P.S. 153.
On August 25, 1998, the child's parents advised the CSE that they believed that the recommended program would not meet their son's needs, because the teaching methodology was not appropriate. They indicated that their son responded best to the Applied Behavioral Analysis (ABA) approach to teaching, and they were concerned that such methodology might not be employed in the recommended program. The parents indicated that they were enrolling their son in the AMAC.
The child was evaluated by a private psychiatrist at the request of his parents in September, 1998 to assess his psychiatric and functional status. She noted that the child had been found to have globally delayed development, with most significantly impaired functioning in the areas of language and socialization, consistent with a diagnosis of PDD when he was two years old. The private psychiatrist reported that when he entered the examination room, the child made roving eye contact, jumped on and off furniture, moved around the room actively and made "several speedy assaults on the computer." The private psychiatrist observed that the child vocalized softly with cooing sounds, not recognizable as words, though with prompting he said "hi" and "bye". The child did not respond to repeated commands and only responded to his name when called by his mother. He ignored verbal directions to build a tower, but began to do so when it was demonstrated for him. He was unable to select playdoh by color or copy a circle or a cross correctly. He identified the letters of the alphabet in a book and correctly pointed to and named all the common body parts. The private psychiatrist noted that the child made frequent eye contact with her and his mother. She indicated that the child appeared affectionate and well-related.
The private psychiatrist indicated that the child met the criteria for the medical diagnosis of a pervasive developmental disorder, not otherwise specified (PDD-NOS). She further indicated that the child was functioning at a mentally retarded cognitive level. He demonstrated severely delayed expressive language, as well as marked delays in receptive language, lack of spontaneous imaginative play, no peer relationships, mild stereotyped motor mannerisms and perseverative, non-function related use of objects and toys. She did note however, that he seemed emotionally well-related to his parents and was able to engage with her. The private psychologist recommended that the child be placed in a school setting where he would be grouped with other children with similar disorders in a small class in which the ABA technique was used.
The impartial hearing in this matter was held on September 16 and October 8, 1998. The hearing officer rendered his decision on December 3, 1998. He rejected the parents' contention that the CSE should have included a regular education teacher when it prepared the child's IEP. He found that the ABA technique would be used in the proposed class, and that the CSE had recommended an appropriate placement for the child. Accordingly, the hearing officer denied petitioner's request for tuition reimbursement.
Petitioner appeals the hearing officer's decision on a number of grounds. Initially, he challenges the impartiality of the hearing officer. He asserts that sometime after the hearing, the child's mother learned that the hearing officer's wife was employed by respondent as a teacher in another unspecified community school district, and that he failed to disclose this fact prior to the hearing, precluding petitioner from making a motion for the hearing officer to recuse himself. He contends that the hearing officer should have disclosed his wife's employment, and recused himself from the hearing. Respondent acknowledges that the hearing officer's wife is employed as an educational evaluator in Community School District 15, but it asserts that she was not involved in this child's classification and placement. It also asserts that information about the hearing officer's wife was on file and available in accordance with the provisions of 34 CFR 300.507 (c) and 8 NYCRR 200.2 (e) (1). A challenge to the hearing officer's impartiality on similar grounds was recently dismissed in another appeal (Application of a Child with a Disability, Appeal No. 98-51). As I noted in that decision, I am troubled by the hearing officer's failure to at least disclose his wife's employment by respondent in another community school district, however, I find that his failure to do so does not afford a sufficient basis for annulling his determination. Having reviewed the transcript and the hearing officer's decision, I find that there is no evidence of any actual bias against petitioner.
Additionally, petitioner argues that a regular education teacher should have been present at the CSE meeting at which his son's IEP was developed. Pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA), as amended effective July, 1, 1998, at least one regular education teacher of such child, if the child is, or may be participating in a regular education environment, must participate in the CSE meetings at which the child's IEP is prepared (20 USC 1414 [d][B][ii]). The record shows that the IEP was prepared on April 7, 1998, prior to the effective date of the amendment. Moreover, there is no indication in the record that the child was even being considered for participation in a regular education environment. I find that the CSE was properly composed.
Petitioner raises several issues with respect to the appropriateness of the child's classification as autistic. He contends that his child does not meet the criteria for classification as autistic which are found in 8 NYCRR 200.1 (mm) (1). Petitioner argues that since his son has been diagnosed with PDD and PDD is not a classification, his son should be classified as emotionally disturbed/speech impaired.
The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). An autistic child is defined by the Regulations of the Commissioner of Education as:
"A student who manifests a behaviorally defined syndrome which occurs in children of all levels of intelligence. The essential features are typically manifested prior to 30 months of age and include severe disturbances of developmental rates and/or sequences of responses to sensory stimuli, of speech, of language, of cognitive capacities, and of the ability to relate to people, events and objects. " (8 NYCRR 200.1[mm])
Autism is defined for educational purposes by Federal regulation as:
"…a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitious activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has a serious emotional disturbance, as defined in paragraph (b) (9) of this section." (34 CFR 300.7 [b] )
The record shows that the child was first evaluated at the age of two and found to have globally delayed development, with most significantly impaired functioning in the areas of language and socialization, consistent with a diagnosis of PDD. In July 1997, when he was four years old, the child scored in the severely autistic range on the CARS. The record further shows that the child has been diagnosed by various professionals as autistic and/or as having a PDD. Although the CSE did not have the results of the child's September, 1998 private psychiatric evaluation before it, I note that the psychiatrist's description of the child's condition are consistent with the descriptions of the child in the earlier evaluations. Based upon the information before me and notwithstanding the fact that the professionals disagree as to the appropriate medical diagnosis, I find that the child's condition is consistent with the definition of autism as set forth in the Regulations of the Commissioner of Education, and the comparable Federal regulation.
Petitioner claims that the CSE should have resolved the conflict in the child's diagnosis. Under the circumstances presented in this case, I do not agree. As I noted above, the child's appropriate medical diagnosis is not the standard to be applied here. Petitioner further claims that the CSE should have conducted its own evaluation. However, a board of education may rely upon the results of a private evaluation, in lieu of performing its own evaluation (Application of a Child Suspected of Having a Disability, Appeal No. 92-12; Application of a Child with a Disability, Appeal No. 96-71). Additionally, petitioner argues that the CSE relied on stale reports. The record shows that while most of the evaluations were conducted in December, 1997, a psychological evaluation was completed on March 26, 1998 just prior to the April 7, 1998 CSE meeting. Despite petitioner 's assertion that his son had made progress since the December, 1997 evaluations, I find that the description of the child's condition set forth in the September, 1998 private evaluation is consistent with the descriptions of the child in the earlier evaluations. Those descriptions are in turn consistent with a classification of autism. For all of the foregoing reasons, I find that the CSE appropriately classified the child as autistic.
Petitioner argues that the recommended program is inappropriate because respondent failed to provide a class profile and it could not be determined whether his son would be placed in a class that offered ABA. 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). 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).
I have already found that the evaluations were consistent in describing the child's condition. Having reviewed the child's IEP, I find that it accurately reflects the results of the evaluations to identify his needs. While petitioner does not challenge his son's IEP annual goals and short-term instructional objectives, I have reviewed them because it is important to establish that they are appropriate before determining what educational services are required to afford the child a reasonable chance of achieving his goals and objectives. I find that the goals and objectives appear to be based upon the child's present levels of performance.
The record shows that the child had severe delays in speech, language and the ability to relate to people and objects. The professionals who evaluated the child were consistent in recommending that the child be placed in a small class setting. The CSE's recommendation of the SIE-III program would have placed the child in a class with a student to staff ratio of 6:1+1. The Principal of P.S. 176 testified that the school is for students ages five through 21 who are classified as autistic. The students have various levels of cognitive ability ranging from students who are moderately retarded to students who are able to be included in a regular education classroom. The principal further testified that the in addition to an inclusionary program and the use of ABA, the school offered a variety of other innovative programs. The school also offers the children community skills training, as well as training for parents. Based upon the information before me, I find that the program at P.S. 176 is reasonably calculated to allow the child to receive educational benefits.
Typically, a board of education demonstrates the similarity of needs and abilities by offering a class profile, i.e., a chart listing the needs and abilities of the children in the proposed class in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having a witness testify about the needs and abilities of the children in the proposed class (Application of a Child with a Disability, Appeal No. 97-67). The Principal of P.S. 176 stated that there were ten classes for the new students entering the school. She further stated that the children are assessed during the first month of school and then are placed in more permanent groupings based on functioning level. Because newly admitted students aren't grouped at P.S. 176 until after the assessment conducted during the first month of school, a class profile was unavailable at the time the child's mother visited the school in July, 1998. I find that respondent's failure to provide a class profile to the child's mother does not render the program inappropriate. As noted above, the principal testified about how the children are grouped. I find that the school's policy of assessing the newly admitted children during the first few weeks before grouping them is reasonable under the circumstances. Having found that the child meets the criteria for classification as autistic and given that the school serves children with varying levels of cognitive abilities who have been classified as autistic, I find that the school offered a sufficient variety of programs in its ten available classes for the newly admitted students that the child would have been placed with children with similar needs and abilities. I note that petitioner's mother requested that her son be placed in a class that utilized the ABA methodology. However, the precise teaching method to be used in instructing the child is a matter to be left to his teacher (Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269; Matter of a Handicapped Child, 23 id. 308).
Petitioner is seeking tuition reimbursement. 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 ). I have found that respondent met it's burden of proof with respect to demonstrating the appropriateness of the program it recommended. As petitioner has not prevailed on the first criteria for an award of tuition reimbursement, it is not necessary that I address the second and third. Based upon the above, petitioner's request for tuition reimbursement is denied.
I have considered petitioner's other assertions which I find to be without merit.
THE APPEAL IS DISMISSED.