Application of the BOARD OF EDUCATION OF THE SACKETS HARBOR CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hogan and Sarzynski, L.L.P., attorneys for petitioner, Edward J. Sarzynski, Esq., of counsel
Joyce B. Berkowitz, Esq., attorney for respondents
Petitioner, the Board of Education of the Sackets Harbor Central School District, appeals from an impartial hearing officer's decision which held that petitioner had violated the Individuals with Disabilities Education Act (IDEA) by not counting the votes of certain individuals who were present at a meeting of its committee on preschool special education (CPSE) on September 18, 1998. At that meeting, the CPSE denied respondents' request that petitioner provide a home-based applied behavioral analysis (ABA) program to their son. The hearing officer directed petitioner to reimburse respondents for their expenditures for a home-based ABA program since September 19, 1998. Respondents cross-appeal from the hearing officer's determination that the individualized education program (IEP) which the CPSE developed for their son should not be invalidated because of certain alleged procedural violations which occurred prior to the September 18, 1998 CPSE meeting. The appeal must be dismissed. The cross-appeal must be sustained in part.
Respondents' son is four years old. On June 9, 1997 the child was evaluated by a school psychologist, speech/language pathologist, and an occupational therapist employed by the Benchmark Family Services, Inc. (Benchmark), at the request of the Jefferson County Early Intervention Services Coordinator. I note that children with disabilities who are below the age of three are eligible to receive appropriate services pursuant to the State's Early Intervention Program (Title III-A of the Public Health Law). On the Bayley Scale of Infant Development (Bayley), the child achieved an age equivalent score of eight months, indicating a delay of 16 months. His age equivalent scores on the Vineland Adaptive Behavior Scales (Vineland) were similarly depressed, as was his age equivalent score on the Peabody Developmental Motor Scale. On the Pre-School Language Scale-3, the child earned an age equivalent score of one year for both auditory comprehension and expressive communication. The Benchmark evaluators recommended that the child be enrolled in a language enhanced toddler developmental play group, and that he receive speech/language therapy and occupational therapy (Parent Exhibit 1). On July 2, 1997, Jefferson County Services prepared an individualized family service plan which provided that the child would receive speech instruction at home twice per week, and occupational therapy at home three times per week. In addition, the child was to participate in Benchmark's developmental toddler group at a BOCES facility for 90 minutes, twice per week. The speech/language pathologist who directed the activities of the toddler group testified at the hearing that the group's goals focused upon interacting with each other and playing appropriately with toys (Transcript, page 937). Respondents accepted the plan.
The plan also provided for the child to be evaluated by Dr. Catharine Church, a psychologist who is the Director of the Center for Autism and Related Disorders of the State University of New York Health Science Center in Syracuse. Dr. Church evaluated the child on August 18, 1997. She reported that the child had achieved an age equivalent score of 11 months on the Bayley Scales of Infant Development-Mental Scale. Dr. Church opined that respondents' son demonstrated characteristics which were consistent with a diagnosis of mild autism, but that he might have stronger cognitive abilities than he had demonstrated. She recommended that the child be tested again after he had participated for several months in the program outlined in his family service plan. Dr. Church also recommended that the boy's participation in the toddler group be increased to four or five days per week, and that an individual aide be assigned to him. She suggested that American Sign Language, sensory integration, and a visually oriented program be used with him.
The child reportedly began attending the Benchmark toddler group program on a three day per week basis in July, 1997. In November, 1997, the frequency reportedly increased to five days per week. On January 5, 1998, Jefferson County Community Services revised the boy's individualized family service plan to include 30 minutes of speech instruction at home three times per week, 60 minutes of occupational therapy at Benchmark once per week, 60 minutes of sensory motor group training at Benchmark once per week, and 90 minutes of participation in the Benchmark toddlers' group with an aide five times per week. The child's mother approved the amended plan.
In anticipation of the child coming within its jurisdiction at three years of age, petitioner's CPSE met with respondents on February 23, 1998 to review reports from the child's service providers. The CPSE recommended that respondents' son be classified as a preschool child with a disability. It further recommended that he be enrolled on a 12-month basis in a 10:1+1 preschool program at Benchmark for three hours per day, five days per week, and that he receive speech therapy four times per week at Benchmark and once per week at home, and occupational therapy twice per week at Benchmark and once per week at home. The child's IEP noted that he used sign language to communicate but could imitate many sounds and words, and that he was able to follow directions (Exhibit D-6). He reportedly played well in a group, but preferred to play alone. The child's mother accepted the CPSE's recommendations on March 8, 1998 (Exhibit P-5). However, respondents reportedly chose to have their son remain in the early intervention program until July, 1998.
In a letter dated April 15, 1998, Dr. Church indicated that although the child had made progress in his program at Benchmark, he "has not made the progress that we anticipated or would like to see" (Exhibit P-3). She did not reveal when she had last seen the child, or the basis for her opinion about the child's rate of progress. Dr. Church noted that respondents had suggested that the ABA methodology be employed with their son. She described ABA as breaking down the behaviors a child needs to make sense of his world into tiny simple steps, and then teaching the child to string those behaviors together. Dr. Church went on to state that:
"While I believe ABA is only one approach to the treatment of autism, I believe that it may hold an important key for [respondent's son]. I would recommend 20 hours per week of direct ABA intervention and at least 10 more hours for data collection and observation. In addition, [the child] will need his 20 hours per week at an inclusion Preschool program".
In a letter to petitioner's CPSE chairperson dated May 2, 1998, the child's mother enclosed a copy of Dr. Church's April 15, 1998 letter, and asked if she could meet with the CPSE prior to its scheduled June 4, 1998 annual review of the child. She indicated that she wanted her son's IEP to be revised to include a home-based ABA program of approximately 25 hours per week of direct service and five hours per week for data analysis and bimonthly team meetings. The child's mother also indicated her intention to have her son transition into Benchmark's preschool program with an individual aide trained in the use of ABA in July, 1998 (Exhibit P-7).
On May 12, 1998, the child's mother met with Benchmark staff to discuss her proposal to implement the ABA methodology in Benchmark's program. Her proposal was reportedly not accepted, and she informed a Benchmark administrator that she intended to propose to the CPSE that her son's preschool program at Benchmark be reduced to 6 hours per week, and that he receive 36 hours of ABA per week at home to help him acquire language and reduce or extinguish behavior which could result in injury to himself or others (Exhibit P-8).
The CPSE met with the child's parent on June 4, 1998 to review her request that the child's IEP be revised. Its chairperson testified that the CPSE agreed to add an individual aide to the child's IEP, but it wanted more time to consider the request for ABA training. An ABA consultant observed the child for two hours on June 16, 1998. She reported that the child had engaged in several maladaptive behaviors and displayed severe deficits across all learning domains (Exhibit D-17). She recommended that the boy be included in a regular education preschool program for approximately six to ten hours per week, but that he also receive 35 to 40 hours of ABA training per week.
The consultant's report was apparently available to the CPSE when it reconvened on June 18, 1998. At the hearing, the CPSE chairperson testified that the CPSE wanted to obtain objective baseline data about the child's present levels of performance before determining whether to recommend that the child receive the ABA training sought by his parents. The CPSE did prepare a new IEP for the child (Exhibit D-18-b). It recommended that the child be enrolled in the 10: 1+1 preschool program at Benchmark with a 1:1 aide for 3 hours per day 3 times per week, and that he receive 2 hours of special education itinerant teacher (SEIT) services per week. The CPSE further recommended that the child receive 40 minutes of speech services 3 times per week at Benchmark and once per week at home, 40 minutes of occupational therapy 3 times per week at Benchmark and twice per week at home, and 40 minutes of physical therapy 3 times per week at Benchmark and twice per week at home. The CPSE also reportedly recommended that the parents receive 6 hours of training per month, according to the then CPSE chairperson. However, the IEP did not indicate that training would be provided (cf. 8 NYCRR 200.13 [d]). The parents did not accept the CPSE's recommendations.
Respondents arranged to have their son evaluated by the Newmeadow Preschool in Scotia, New York (Newmeadow) on June 23, 1998. On the Battelle Developmental Inventory, the child earned age equivalent scores of 23 months in the cognitive domain, and 15 months for adaptive behavior. His receptive and expressive language skills were found to be at or about the 12-month level. On the Peabody Developmental Motor Scales, the child tested at the 17-month level for gross motor skills, and at the 20-month level for fine motor skills. The Newmeadow evaluators recommended that the child be enrolled in "an intensive preschool program designed to strengthen receptive and expressive language skills, socialization and cognitive functioning" through "hands-on experiences" (Exhibit P-13). The evaluators also recommended that the child receive 150 minutes of speech/language services per week. They did not refer to ABA or to any home-based program. The Newmeadow evaluation team suggested 18 annual goals, with supporting objectives, for the child.
By letter dated July 16, 1998, Dr. Church indicated that she was in complete agreement with the child's "current" educational program (Exhibit D-26). However, she opined that the child had "the best chance for maximizing his potential if a much more structured, intensive, behaviorally based model of education" was added to his current program. She asserted that the child had made very slow progress in reaching his educational goals with regard to certain basic skills, and that those skills were best addressed with ABA.
On July 17, 1998, the CPSE met with the child's parents, his teacher at Benchmark, and three representatives of the Early Intervention Program. A representative of Jefferson County attended the meeting as a CPSE member (see Section 4410  [a] of the Education Law. The CPSE reportedly reached a consensus with the parents about reducing the amount of the child's occupational therapy to 30 minutes once a week at Benchmark, and once a week at home, and his physical therapy to 30 minutes once per week at Benchmark and once per week at home. The CPSE also revised the child's IEP goals and objectives in accordance with the recommendations by the Newmeadow evaluators. The CPSE minutes reveal that it did not reach a consensus to accept the parents' request to amend their son's IEP to include a program of home-based intervention services consisting of direct 1:1 instruction, non-direct services including data collection, measurement, and team meetings, training and supervision by an ABA consultant, and follow-up consultation with the consultant (Exhibit D-27c).
Within days after the CPSE meeting was held, the child transitioned from Benchmark's toddler program to its preschool program, and he began an ABA program provided by his parents at home. The latter program included a variety of goals relating to both school and home (Exhibit P-18).
In a letter to the CPSE chair dated August 3, 1998, respondents' attorney asserted that four of the six voting members of the CPSE had allegedly voted in favor of the ABA program which the parents had requested, but their vote had been "negated". The attorney requested that an impartial hearing be held to review the alleged "violation of procedure", as well as the adequacy of the child's IEP (Exhibit D-29). Three days later, the child's mother rejected her son's amended IEP, and noted that the copy which she had received did not contain some of the changes which had been agreed upon at the CPSE's July meeting. A mediation session was reportedly held on September 9, 1998, but the parties did not resolve their differences.
In a letter to respondents dated September 10, 1998, the CPSE chairperson acknowledged that one of the CPSE's required members, a regular education teacher, had not attended the July 17 CPSE meeting (Exhibit D-38). As a result of that omission and the uncertainty about the positions taken by the CPSE members, another CPSE meeting was held on September 18, 1998.
Prior to that meeting, the child's special education teacher reported that the child's aggression against his peers had decreased, and his ability to follow the classroom routine had improved (Exhibit P-19). A Benchmark speech/language therapist reported that there had been a significant improvement in the boy's language skills since he began the ABA program (Ibid). A Benchmark occupational therapist also reported that there were "many improvements and emerging skills" since respondents' ABA program began (Ibid).
At the September 18, 1998 CPSE meeting, there were 16 people in attendance, including the parties' respective attorneys. The CPSE chairperson identified 6 voting members of the CPSE: herself, the child's parents (1 vote), a regular education teacher, the child's special education teacher, the Jefferson County representative, and a parent member of the CPSE. By a vote of 4-2, the CPSE decided not to amend the child's IEP to include a home-based ABA program. The child's teacher at Benchmark and his parents voted in favor of adding the ABA program. It was agreed that the views of the non-voting participants would also be recorded. Six of the non-voting participants supported the parents' request for a home-based ABA program, and the remaining non-voting participant indicated that he believed that the child's existing IEP was appropriate.
On October 1, 1998, Dr. Church re-evaluated the child. She reported that the child responded to his name, and was compliant, but required frequent breaks during testing. The child evidenced very few self-stimulatory or repetitive behaviors. On the Vineland, respondents' child achieved age equivalent scores of 1.6 for communication, 1.9 for daily living, 1.3 for socialization, and 2.5 for motor skills. On the Early Language Milestones, he achieved age equivalent scores of 20 months for auditory expressive, 30 months for auditory receptive, and 23.5 months for global. His age equivalent score on the Peabody Picture Vocabulary Test-Revised was 36 months. Dr. Church also administered the Bayley to the child, who achieved an age equivalent score of 23 months on the mental scale and 28 months on the motor scale. Dr. Church opined that the child had made remarkable progress, but continued to demonstrate the characteristics of autism. She recommended that he continue to participate in the Benchmark preschool program on a 3-day per week basis. Dr. Church also opined that he should continue to participate in his intensive ABA program at home which she believed to be "critical for his continuing ongoing success" (Exhibit D-47).
In a progress report dated October 19, 1998, the child's speech/language therapist reported that his expressive vocabulary had increased to approximately 20 words. She also reported that the child had learned to independently hold a cup and use more age appropriate drinking skills. The speech/language therapist indicated that the child was becoming less frustrated by his inability to communicate, and that his maladaptive behaviors had decreased. She opined that he needed both a center-based and a home-based program (Exhibit D-41).
The CPSE convened again on October 20, 1998 to review Dr. Church's October 1, 1998 letter, and to obtain a clarification from the psychologist member of the Newmeadow evaluation team about the team's recommendation that the child be enrolled in "an intensive preschool program". The CPSE, by a vote of 4-2, amended the child's IEP to increase his program at Benchmark to five days per week, and to provide for monthly progress reports (Exhibit D-43).
The impartial hearing in this proceeding began on November 12, 1998. The parties agreed that the primary issue to be determined was whether the child's IEP, which did not include the home-based ABA program sought by his parents, was appropriate. During the hearing, the parents challenged the IEP on procedural as well as substantive grounds. Their procedural challenges included the fact that no special education teacher attended the CPSE meetings in February and June, and no regular education teacher attended the July meeting. Respondents also asserted that the Board of Education had failed to notify them in writing of the reasons why ABA training was not included on their son's IEP (cf. 8 NYCRR 200.5 [a][c]). In addition, they contended that the CPSE members were, on balance, supportive of their request for a home-based ABA program at the July 17, 1998 CPSE meeting, and that the CPSE's vote in favor of that program had been improperly negated. Respondents further contended that petitioner had violated the IDEA, as amended in 1997, by not counting the votes of certain individuals who attended the September 18, 1998 CPSE meeting.
The hearing continued for four additional days, ending on November 22, 1998. In his decision dated December 31, 1998, the hearing officer found that the boy's IEP, as developed on February 23, 1998 and modified at subsequent meetings, was reasonably calculated to enable the child to receive educational benefits, and that the Board of Education was not obligated to employ the ABA methodology which was preferred by the child's parents. However, he further found that petitioner had violated the provisions of 20 USC 1414 (d)(1)(B) because the votes of other individuals who had knowledge or special expertise regarding the child were not counted at the September 18, 1998 CPSE meeting. The hearing officer determined that if the votes by those individuals had been counted, the CPSE would have recommended the inclusion of a home-based ABA program in the child's IEP, and he directed the CPSE to submit a new recommendation to the Board of Education. He also ordered the Board of Education to reimburse the child's parents for the costs of providing their son's ABA program since September 18, 1998.
The Board of Education challenges the hearing officer's determination regarding the CPSE's vote at its September 18, 1998 meeting. Relying upon the provisions of Section 4410 (3)(a) of the Education Law as of that date, petitioner asserts that the hearing officer should not have included the votes of six of the individuals who attended the meeting, but were not members of the CPSE. At the time of the CPSE meeting, Section 4410 (3)(a) of the Education Law provided that for each CPSE meeting held to review or re-evaluate the status of a preschool child with a disability, the CPSE must include a school district employee qualified to teach or supervise the provision of special education, a parent of a child with a disability currently attending a preschool or elementary level education program, and the child's teacher. As noted above, a CPSE may also include a representative of the appropriate municipality, which in this case was Jefferson County.
Prior to the 1997 amendments of IDEA, the Federal statute did not specify the composition of the group which prepared a child's IEP, but the applicable Federal regulation did mandate that certain individuals participate in meetings to create or amend an IEP. The required participants were: a preschool district representative who is qualified to provide or supervise the provision of special education, the child's teacher, one or both of the child's parents, the child if appropriate, and other individuals at the discretion of the parent or agency (34 CFR 300.344 [a]). In its official interpretation of its regulations, the U.S. Department of Education indicated the child's parents were expected to be "equal participants along with school personnel, in developing, reviewing and revising the child's IEP" (34 CFR Part 300, Appendix C, Question 26). However, neither the regulations nor the official interpretation indicated how voting was to be conducted by an IEP team in the event that the group did not arrive at a consensus about the child's IEP.
In 1997, the IDEA was amended as of July 1, 1998, to define the composition of an IEP team (CSE and CPSE in New York) as follows:
"The term 'individualized education program team' or 'IEP Team' means a group of individuals composed of -
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
(iii) at least one special education teacher, or where appropriate at least one special education provider of such child;
(iv) a representative of the local education agency who -
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(II) is knowledgeable about the general curriculum; and
(III) is knowledgeable about the availability of resources of the local educational agency;
(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in classes (ii) through (vi);
(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
(vii) whenever appropriate, the child with a disability" (20 USC 1412 [d][B]).
I note that since this appeal was filed, new Federal regulations have been promulgated to implement the 1997 amendments to IDEA, and portions of the New York State Education Law have been amended to conform that statute to the amended IDEA. The new Federal regulation is also 34 CFR 300.344 (a). Section 4410 (3)(a) of the New York State Education Law was amended, effective July 20, 1999, to parallel the Federal definition of an IEP team. A CPSE must, among others, include "such other persons having knowledge or expertise regarding the child as the board or the parents shall designate, to the extent required under Federal law". While neither the new Federal regulations nor the 1999 amendments to the New York State Education Law (Chapter 311 of the Laws of 1999) were in effect on the date of the CPSE meeting, they do provide some guidance.
In essence, petitioner argues that while the child's parents had the right to be accompanied by such individuals as they desired at the CPSE meeting (see 8 NYCRR 200.5 [a][iii], only those individuals who had been designated as members of the CPSE pursuant to Section 4410 (3)(a) of the Education Law were entitled to vote at the September 18, 1998 CPSE meeting. I find that petitioner's reliance upon the provisions of State statute after the effective date of the amendments to the IDEA is misplaced. Therefore, I agree with the hearing officer's determination to include the certified service providers from Benchmark who attended the CPSE meeting as voting members of the CPSE, because those individuals had "knowledge or special expertise regarding the child". Petitioner's Director of Special Education, who had served as a CPSE chairperson at the February, 1998 meeting, was also properly included by the hearing officer as a voting member. I further agree with the hearing officer's determination to not count the vote by the individual who identified herself as an advocate at the meeting. Therefore, I find that the hearing officer correctly concluded that a majority of the CPSE had recommended that respondents' son receive a home-based program of intensive behavioral management in addition to his center-based educational program at Benchmark. Since petitioner lacks standing to challenge the recommendation of its own CPSE, it follows that respondents are entitled to be reimbursed for the reasonable cost to them of their son's home-based program during the 1998-99 school year. Petitioner's appeal is therefore dismissed.
In their cross-appeal, respondents challenge the validity of their son's initial IEP which was prepared by the CPSE on February 23, 1998, notwithstanding their acceptance of the IEP on March 8, 1998 (Exhibit P-5). They contend that there was no special education teacher at the CPSE meeting, while petitioner asserts that there were two individuals who were certified to teach special education at the meeting. I note that Section 4410 (3)(a) specifies that the child's teacher attend the CPSE meeting, and that on the CPSE attendance form for that meeting the space for the child's teacher is blank. There is no evidence that the child's teacher at Benchmark, or a teacher designated to be the child's teacher, attended either the February 23 or June 18, 1998 CPSE meetings. However, the child's teacher did attend the next CPSE meeting which was held on July 17, 1998, at which the CPSE reviewed and revised the child's CPSE. As noted above, there was no regular education teacher at that meeting. However, the new requirement that a regular education teacher attend a meeting at which a child's IEP is prepared or amended applies if the child is, or may be, participating in the regular education environment (20 USC 1414 [d][B][ii]), which was not the case here. I find that the defect in the process to which respondents refer was cured at the July 23, 1998 meeting.
Respondents also contend that their son's IEP was developed without the required initial evaluation, including a physical examination, social history, and classroom observation. Upon receipt of a referral of a child, a CPSE must arrange for an individual evaluation which is to be conducted in accordance with 8 NYCRR 200.4 (b). That regulation provides that an individual evaluation must include a physical examination, an individual psychological examination, a social history, and other appropriate assessments, including an observation of the child in the current education setting. The Board of Education asserts that Dr. Church's evaluation of the child on August 18, 1997 included a physical examination. I have reviewed her report (Exhibit D-3), a portion of which describes the results of a physical examination. However, the report does not indicate whether the child's vision and hearing were tested. The report does contain sufficient information about the child and his family to constitute a social history. There is no evidence of a formal report of a classroom observation, although the then chairperson of the CPSE in June observed the boy at Benchmark, and his successor and the parent member of the CPSE observed him at Benchmark in September, 1998. Upon the record which is before me, I must find that the CPSE failed to evaluate the child in accordance with the requirements of 8 NYCRR 200.4 (b) and 200.16 (c).
The relief which respondents seek is an order requiring the Board of Education to reimburse them for the costs associated with providing an ABA program to their son during the period between July 20, 1998 and September 18, 1998. 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 ). In this instance, I find that petitioner did not meet its burden of proof with regard to the appropriateness of the educational services which it provided to the child because of its failure to properly evaluate him.
The burden of proof shifts to the parents with regard to the appropriateness of the ABA services which they provided to their son during the period in question (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34). In order to meet that burden, the parent must show that the services were "proper under the act" [IDEA] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370). The IDEA requires that each child with a disability be provided with a free appropriate public education. An appropriate educational program under IDEA is one which is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ). In this instance, the question is whether the home-based ABA program which respondents provided to their son in addition to the center-based program which he received from petitioner at Benchmark was necessary in order for the boy to receive a free appropriate education under IDEA.
This issue was carefully considered by the hearing officer in his decision. I have reviewed the extensive record in this proceeding, and have carefully considered the testimony by the witnesses for both parties. The record reveals that the child made progress educationally before respondents initiated their home-based program, as was indicated in the Newmeadow evaluation report (Exhibit P-13) and the progress reports by the child's speech/language therapist and his occupational therapist at Benchmark (Exhibit P-14). During her testimony, Dr. Church, who was a proponent of the parents' home-based ABA program, acknowledged that not all of the progress which the boy had achieved after the ABA program was started was attributed to that program, and that there was no objective way to determine what method of providing services had caused the child's progress (Transcript pages 402-403). She also acknowledged that she had recommended an ABA program to be consistent with respondents' desire to maximize their son's potential (Transcript, pages 390-395). The consultant who had recommended an ABA program in June, 1998 (Exhibit D-17) also acknowledged at the hearing that she had recommended ABA as a way to maximize the child's potential (Transcript, page 577). I find, as did the hearing officer, that this child did not require a home-based program of ABA in addition to the educational program at Benchmark in order to receive a free appropriate public education. Accordingly, I further find that respondents have not met their burden of proof about the appropriateness of the services which they provided, and that they are not entitled to a reimbursement award.
THE APPEAL IS DISMISSED.
THE CROSS-APEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that he found that petitioner had provided an appropriate educational program to respondents' child.