99-027

        Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order requiring respondent Board of Education to reimburse them for their expenditures for certain parent and staff training in the use of the Applied Behavioral Analysis (ABA) technique in their son's home based instructional program during the 1997-98 school year. They also appeal from her decision that the school district's program of 30 hours of ABA services per week was adequate, and which denied their request for reimbursement for the 10 extra hours of ABA services per week which they provided to the child. Respondent cross-appeals from the portion of the hearing officer's decision awarding petitioners reimbursement for the cost of the training provided by an ABA trained consultant for the time period covering November 8, 1997 through December 12, 1997. The appeal must be sustained in part. The cross-appeal must also be dismissed.

        Petitioners’ son was four years old when the hearing was held in this proceeding. He was referred by his mother to respondent's committee on preschool special education (CPSE) in May, 1997, because of her concern that he might be developmentally delayed in the area of speech/language. On May 19 and 28, 1997, the child was evaluated by the Monroe-Orleans BOCES Birth to Five Diagnostic Team. The child did not interact sufficiently with the evaluator for the latter to use standardized speech/language testing. When administered the Childhood Autism Rating Scale, the child received a score of 33. Children with scores between 30 and 36 are considered to be mildly to moderately autistic. The child’s expressive and receptive language skills appeared to be delayed by more than twelve months, and his social skills emerged as a significant need. The child achieved an academic age of seventeen months, and a communication age of twelve months. Communication was found to be the child’s greatest weakness. The evaluators recommended that the child be classified as a preschool student with a disability, and that he be placed in a small, specialized, language-based preschool. In addition, the evaluators recommended speech/language therapy, that would focus on reciprocal communication skills, for 150 minutes per week. The evaluators further recommended that the child receive twelve-month programming and be evaluated by an audiologist (Exhibits Parent(P) 1 and School District(D) 17).

        Respondent's CPSE met with petitioners on June 24, 1997 to review the BOCES report. The CPSE recommended that the child begin a summer program at BOCES beginning on July 7, 1997. The recommended program included a consultant teacher twice per week for sixty minutes, speech/language therapy twice per week for sixty minutes, and audiological services once per week for fifteen minutes (Exhibit D8). For the 1997-98 school year, the CPSE recommended the child be placed in an 8:1:1 special education class at the BOCES for 2.5 hours per day, with 30 minutes of speech/language therapy five times per week (Exhibit D9).

        In a letter dated August 15, 1997, the child’s mother asked the CPSE to reconsider her child’s special education program for the 1997-98 school year, and to recommend that it include 30-40 hours of ABA training per week. The parent indicated that petitioners had been advised to implement an ABA program by Dr. John McEachin, and that their son was on the waiting lists of Dr. McEachin and Dr. Stephen Bauer for consultation. The parent wrote that the child had exhibited improvement in his behavior and abilities, since petitioners had implemented an ABA program (Exhibit P2).

        The CPSE reconvened on August 27, 1997 and revised the child's individualized education program (IEP) for the 1997-98 school year. In lieu of its previous recommendation for a special class placement, the CPSE recommended that the child receive one hour of direct and two hours of indirect consultant teacher services per week by a special education itinerant teacher (SEIT), 30 hours per week of 1:1 paraprofessional services, and 30 minutes of speech/language therapy per week. In addition to direct and indirect services, the CPSE also recommended staff training throughout the school year including thirty hours of speech/language, sixty hours of paraprofessional, and thirty hours of consultant teacher training (Exhibit P3 and D7). Although the IEP does not state that the ABA methodology would be employed, the school district and parents agreed that the ABA methodology was being recommended (R. 196).

        The recommended program which was scheduled to begin in September, 1997 could not be fully implemented by respondent because it was unable to obtain the services of either of the two psychologists on the Monroe County list of approved providers to train the staff who were working with the child (R. 54). However, respondent did provide the child's other IEP services.

        In October, 1997, the parents had the child evaluated at the Developmental Unit of the Genesee Hospital in order to clarify characteristics of the child’s autism (Exhibit P5). The evaluation consisted of a speech/language assessment, a neurological assessment, neurodevelopmental assessment, and a psychological assessment. When administered the Peabody Picture Vocabulary Test, the child achieved an age equivalent score of less than 1.9. He was three years seven months old at the time of the test. On the Sequenced Inventory of Communication Development Test, the child achieved a receptive age consolidated at the twelve month level, with a scatter to twenty-eight months. The mother was asked to complete the Vineland Adaptive Behavior Scale, which approximates a child’s functioning in communication, socialization, daily living skills, and motor skills. The child was found to have a low adaptive level in communication and socialization, a moderately low adaptive level in daily living skills, and an adequate adaptive level in motor skills. The evaluators at Genesee Hospital reported that the child exhibited some self-stimulatory stereotypical behavior, and made poor eye contact with others. He had some strong, isolated visual-spatial skills, but had marked difficulty comprehending complex verbal input. They noted that the boy had been receiving ABA programming, and that he appeared to be benefiting from it. They indicated that he might also benefit from the use of the TEACCH program. The evaluators suggested that the boy would require a highly structured approach to develop his academic and social skills (Exhibit P5).

        In a letter to petitioners dated October 31, 1997, Mr. Michael Wolff, the Director of the Early Intervention Center in New York City, recommended that the child receive 40 hours of 1:1 ABA instruction per week in his home (Exhibit P8). Petitioners contracted with Mr. Wolff to serve as a consultant for the coordination of their child’s educational program. The parents paid for Mr. Wolff’s services, as well as a portion of his transportation and lodging when he traveled to Rochester to meet with the child’s instructional team (R. 214). Mr. Wolff conducted an in-home workshop for the child’s instructors on November 8-10, 1997 (Exhibit D29).

        In a letter dated December 1, 1997, the parents requested that the school district provide the program which Mr. Wolff had developed for their son. The program consisted of 40 hours per week of direct 1:1 instruction using the ABA technique, quarterly full-day meetings of Mr. Wolff and the staff, videotape consultation on a 6 week basis, and telephone consultation on a weekly basis. The parents requested that the school district pay for Mr. Wolff services as consultant, including his travel expenses and accommodations. Petitioners requested that the program be provided on a twelve-month basis. The parents also requested reimbursement for expenses they had incurred in hiring Mr. Wolff, as well as the staff which they had hired to provide an additional 10 hours of ABA per week. Petitioners asserted that respondent did not have an educational program which was designed to meet their child's needs (Exhibit D6).

        The CPSE reconvened on December 4, 1997. The child’s teacher and speech therapist advised the CPSE that they needed additional time to adequately implement the child’s program. However, they both felt that the child had made significant progress (CPSE R. 6-8). The mother opined that the child had made progress, but that he was still lacking some lower level skills (CPSE R. 13). The parents requested that the ABA programming be increased to 40 hours per week in accordance with Mr. Wolff’s recommendation (CPSE R. 42). The CPSE recommended that indirect speech/language services be increased from one hour per week to two hours per week, direct consultant teacher services be increased from one hour per week to three hours per week, indirect consultant teacher services be increased from two hours per week to three hours per week, and two hours of indirect paraprofessional services be provided. In addition, the CPSE recommended up to twenty hours of consultant services from a Monroe County approved clinical psychologist. The CPSE denied the parents’ request for 40 hours of direct 1:1 ABA programming per week. Instead the CPSE recommended that the child continue to receive 30 hours of 1:1 ABA programming. On the IEP which resulted from the meeting, the CPSE indicated that it believed that 30 hours of direct 1:1 programming was appropriate. The CPSE also declined to reimburse petitioners for their expenditures for Mr. Wolff's services because the State Education Law required that it recommend only "approved" providers from the list prepared by the County." (Exhibit D6). At the CPSE meeting, the child’s mother reported that her son had not in fact received 30 hours of 1:1 ABA programming each week, but it was agreed that future staffing assignments could make up the difference.

        In a letter dated December 18, 1997, the CPSE chair informed the parents that Dr. Karen Kaufman, a clinical psychologist on the Monroe County list of approved service providers, would be available to serve as a consultant beginning in mid-January, 1998 (Exhibit D22). The parents did not contact Dr. Kaufman because they believed that changing consultants might interfere with their child’s progress (R. 299, 313,314). They continued to use Mr. Wolff as a consultant.

        In March, 1998, the child's special education itinerant teacher reported to the CPSE that the child appeared to have made considerable progress. The boy had mastered 200 receptive object labels, 175 expressive object labels, 105 action labels, color matching, and numeral and letter identification. The child's social skills had also improved and his level of aggression had decreased. She recommended that he continue to receive SEIT services on a 12-month basis (Exhibit D5). The child's speech/language therapist reported that the child's overall receptive language skills were delayed by twelve months. On the Preschool-Language Scale-3, the child achieved an age equivalent score of two years and three months, indicating that his expressive language skills were severely delayed. The speech/language therapist recommended that the child’s speech/language services continue unchanged, and she suggested that he would benefit from placement in a small, specialized, language-based preschool classroom (Ibid.). When evaluated by an occupational therapist, in March, 1998, the child was found to be functioning at a 39-month level, indicating a delay of nine months. The evaluator recommended that the child receive occupational therapy twice per week to improve his sensory processing, visual motor control, and bilateral motor integration (Exhibit P12).

        At its annual review on May 4, 1998, the CPSE recommended that the services of the consultant teacher be reduced over the summer from three hours of direct services and three hours of indirect services to a total of three hours of consultant teacher services. Occupational therapy was recommended for 30 minutes each week, and 28 hours of training was recommended for those providing services to the child during the summer. For the 1998-99 school year, the CPSE recommended that the child receive three hours of direct and three hours of indirect consultant teacher services per week, 30 hours of direct and two hours of indirect paraprofessional services per week, two hours of direct and two hours of indirect speech/language therapy, and up to 20 hours of service per year by a county approved clinical psychologist (Exhibit D4).

        In a letter dated August 5, 1998, the parents, then attorney requested an impartial hearing. The attorney challenged the child's recommended program for the 1998-99 school year on the ground that it should have provided 40 hours of ABA programming per week. She also indicated that petitioners would seek reimbursement for the 10 additional hours of ABA programming per week which they had paid for during the 1997-98 school year and related costs (Exhibit 20).

        The CPSE chairperson wrote to the parents on September 21, 1998 informing them that a clinical psychologist at the Strong Center for Developmental Disabilities would be available to begin working with their child in late November or early December, 1998. He asked them to make arrangements for those services for their child (Exhibit D21). In a letter dated November 19, 1998, the CPSE chair informed the parents that a County approved clinical psychologist was available to work with their child. The parents were encouraged to contact the consultant prior to December 4, 1998 with their decision regarding services (Exhibit D37).

        An impartial hearing took place on November 30 and December 1, 1998. The issues before the hearing officer were the appropriateness of the child's IEP's for the 1997-98 and 1998-99 school years, and whether the parents were entitled to reimbursement for services they obtained for their child in addition to the services provided by the school district. The hearing officer found that educational programs which the CPSE had recommended for the child were appropriate. However, she further found that the IEP which the CPSE developed on August 27, 1997 should have specified who would train the staff who would be working with the boy, and that respondent had not actively sought out the party who would provide such training. The hearing officer found that respondent had remedied these deficiencies at the December 4, 1997 CPSE meeting. She also found that petitioners had met the criteria for reimbursement of their expenditures for Mr. Wolff's services up to the December CPSE meeting. However, the hearing officer determined that there was no basis for reimbursing petitioners for Mr. Wolff's services after the December meeting. On the issue of the appropriateness of the CPSE's recommendation for 30 hours of ABA programming per week during both school years, the hearing officer found that respondent had met its burden of proof. Therefore, she declined to order that petitioners be reimbursed for their expenditures for additional ABA training in either school year.

        Petitioners challenge the hearing officer's decision with respect to the appropriateness of their son's educational program for the 1997-98 and 1998-99 school year. They contend that their son's educational program was appropriate during both years only because of the additional hours of ABA programming provided under Mr. Wolff's direction and at petitioners' expense.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Petitioners do not appear to challenge their son's IEP for the 1997-98 school year, except with regard to the amount of ABA programming which was to be provided to their son. They rely primarily upon Mr. Wolff's testimony at the hearing. At the outset, I note that the record reveals that Mr. Wolff was not a certified teacher or school psychologist, nor was he a licensed psychologist. Mr. Wolff testified that a child needs forty hours of instruction in order to progress using the ABA method (R.186). He referred to studies conducted by Dr. Ivar Lovaas to support his assertion. These studies compared three groups of children. The first group received forty hours of ABA instruction, the second group received ten hours of ABA instruction and the third group received no instruction. The group that received forty hours of instruction achieved the greatest progress. However, Mr. Wolff acknowledged that the child would receive benefit from thirty hours of instruction (R. 213).

        The child's mother had prepared a graph of the child’s progress (Exhibit P16). The graph indicated how many hours of ABA instruction the child was received each week and how many tasks the child mastered. The mother testified that the child mastered more tasks when he received forty hours of ABA instruction than he did when he received thirty hours of ABA instruction (R. 328). The evidence showed, however, that the child progressed when he received thirty hours of instruction (Exhibit P16). The parents did not present any evidence proving that but for the additional ten hours of instruction the child would not have progressed. According to the parents’ own graph and testimony, the child received educational benefit from the program recommended by the CPSE (exhibit P16 and R. 284). I find that there is no scientific evidence in the record which is before me to afford a basis for concluding that ABA programming must be provided to a child for a minimum of 40 hours per week. I must look at the child's individual needs, and his progress with the services which he has received. While I am aware that the child received additional hours of ABA programming at petitioners' expense during the 1997-98 school year, I must find that it would be pure speculation for me to conclude that the child would not have made appropriate progress towards achieving his IEP goals during that school year without those additional ten hours of ABA programming per week (Application of a Child with a Disability, Appeal No. 96-58). Therefore, I find that the educational program which the CPSE recommended for petitioners' son was appropriate for him during the 1997-98 school year.

        Although the recommended program was appropriate for the 1997-98 school year, I must concur with the hearing officer that the parents are entitled to partial reimbursement for the expenses they incurred in hiring a consultant. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). Although the CPSE developed an appropriate IEP in August, 1997, the school district was not prepared to adequately implement the program until January, 1998. In the interim, the parents hired Mr. Wolff. The fact that Mr. Wolff did not possess a bachelor’s degree or any relevant certification or license does not per se preclude petitioners from obtaining reimbursement for the cost of his services between August, 1997 and January, 1998.

        Respondent correctly states in its cross-appeal that State regulations require that remedial services be provided by appropriately certified or licensed individuals (8 NYCRR 200.6(b)(1)). However, the Supreme Court held in Florence County School District Four et al. v. Carter by Carter 510 U.S. 7 (1993) that when a school district fails to implement an appropriate IEP, parents can be reimbursed for appropriate services they obtain for their child even if the service providers are not on the state approved list. Similarly, in this case, the question I must ask is not whether the parents hired a service provider with a license or certification, but whether the parents hired a service provider who conferred educational benefit to the child. The evidence shows that the parents did hire a service provider who conferred educational benefit. Because the child progressed during the period when the school district was unable to provide adequate services, I find that the parents should be reimbursed for their expenditures during this period. Therefore, respondent's cross-appeal must be dismissed.

        Petitioners appeal from the hearing officer's limitation upon their recovery for the cost of Mr. Wolff's services for the period between August, 1997 and January, 1998. The consultant from the county approved list became available in January, 1998. The parents testified that they chose not to contact the provider because they were concerned that a change in consultants would cause their child to regress due to lack of consistency (R. 299, 313, 314). I find the parents’ argument unpersuasive because all of the individuals working directly with the child remained unchanged. Although there may have been some differences in procedure, there is no basis in the record for me to conclude that the consultant from the county list would not have been able to have effectively coordinated the child's ABA program for the remainder of the 1997-98 school year. Therefore, I must concur with the hearing officer's determination to limit petitioners' reimbursement for the cost of Mr. Wolff's services to those which he provided in the months of November and December, 1997.

        Petitioners also challenge the appropriateness of the educational program which the CPSE recommended for the 1998-99 school year because it did not provide 40 hours of ABA programming per week. Although they did not raise the issue at the hearing, I note that the attendance sheet for the CPSE meeting on May 4, 1998 at which the child's IEP was prepared reveals that there was no parent member of the CPSE. A printed notation at the bottom of the attendance sheet indicates that the:

"Parent(s) were apprised of their right to postpone CPSE meeting and to reschedule with parent CSE [sic] representative present. Parent(s) agree to proceed with the meeting despite the absence of the parent representative." (Exhibit D-3).

        A parent member of the CPSE is mandated by Section 4410 (3) (a) of the Education Law. As respondent well knows, an IEP which is prepared in the absence of the parent member is void (Applications of the Board of Education of the Greece CSD and a Child with a Disability, Appeal Nos. 97-14 and 97-19). The purported waiver by a child's parents of the parent member's participation in the development of the child's IEP is ineffective (Application of the Board of Education of the North Rose-Wolcott CSD, Appeal No. 97-1). Under the circumstances, I have no choice but to invalidate the child's IEP for the 1998-99 school year.

        Although petitioners have prevailed with respect to the first of the three criteria for a reimbursement award pursuant to the Burlington and Carter decisions, they must also show that the additional hours of ABA programming which they obtained for their son during the 1998-99 school year were "proper under the act" [Individuals with Disabilities Education Act] (Burlington, supra 370). I have already determined that the child did not require 40 hours of ABA programming per week to receive an appropriate education under the Individuals with Disabilities Education Act during the 1997-98 school year. I find that there is nothing in the record to suggest that his educational needs were greater in the 1998-99 school year than in the 1997-98 school year. Therefore, I find that the additional services which petitioners obtained for their son during the 1998-99 school year were not appropriate under the Individuals with Disabilities Education Act, and I must deny their claim for reimbursement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that respondent had met its burden of proof regarding the appropriateness of the child's educational program for the 1998-99 school year.