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Application of a CHILD WITH A DISABILITY, by her parents, 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


Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Susan Fingerle, Esq., of counsel


       Petitioners appeal from an impartial hearing officer's decision denying their request for an order requiring respondent to provide 15 hours per week of applied behavioral analysis (ABA) therapy to their daughter at home in addition to the child's preschool program at the Joan Ann Kennedy School (Kennedy) during the 1999-2000 school year. The appeal must be sustained.

        Respondent asks that I accept its answer to the petition. The answer should have been served by October 15, 1999, but it was not served until October 20, 1999. Respondent points out that petitioners served their notice of intention to seek review simultaneously with the petition (cf. 8 NYCRR 279.2 [b]). I will excuse respondent's brief delay, and accept the answer.

        Petitioners’ daughter was born January, 1996. In July, 1997, child was diagnosed by a neurologist as having a pervasive developmental disorder. The child began receiving home-based early intervention services provided by the Toddler Infant Program Special Education (TIPSE) in December, 1997. She reportedly began receiving ABA therapy at home in June, 1998 (Exhibit 3). During the 1998-99 school year, she was reportedly enrolled into a half-day center-based program, and received ABA therapy, oral motor therapy, and occupational therapy at home.

        The girl became old enough to receive special education services under the jurisdiction of respondent's committee on preschool special education (CPSE) during the 1999-2000 school year. A school psychologist who attempted to evaluate the girl on two occasions in March, 1999, reported that the girl could not be formally evaluated because of her behavior during the testing sessions. With her mother serving as the informant for the Vineland Adaptive Behavior Scales, the child achieved age equivalent scores of 1.2 for communication, 1.7 for daily living skills, 1.1 for socialization, and 1.8 for motor skills. Her overall adaptive functioning was reported to be three standard deviations below the mean for her age. The psychologist recommended that the child attend a center-based educational program in order to stimulate her developmental growth (Exhibit 15).

        The child was also evaluated in March, 1999 by a speech/language pathologist and occupational therapist. The speech/language pathologist reported that the girl manifested two-year delays in auditory comprehension, expressive communication, and total language, and that she was unable to effectively communicate her wants or feelings during routine activities. She recommended that the child receive "maximum" speech/ language services on an individual basis (Exhibit 14). The occupational therapist noted that the child had a difficult time transitioning to the therapy room, and did not respond well to her directions during the first thirty minutes of evaluation. She reported that the girl, who was 39 months old, had gross motor skills at the 24-48 month level, and fine motor skills at the 18-month level. She recommended that the child receive thirty minutes of individual occupational therapy three times per week in a school-based program (Exhibit 16).

        The CPSE met with petitioners on April 28, 1999 to prepare their child’s individualized education program (IEP) for the 1999-2000 school year. The CPSE recommended that the girl be classified as a preschool child with a disability. I note that there is no dispute about her classification. The CPSE also recommended that the child be enrolled in a center-based educational program, and that she receive 30 minutes of individual speech/language therapy three times per week and thirty minutes of individual occupational therapy three times per week (Exhibit 10). The CPSE offered petitioners the option of placing their daughter at any of three preschool special education facilities. Petitioners selected Kennedy, which accepted the child. Petitioners do not dispute the CPSE's recommendations with respect to their daughter's center-based educational program, or her related services of speech/language therapy and occupational therapy.

        Petitioners asked the CPSE to also recommend that their child receive ABA therapy at home. The CPSE administrator testified at the hearing that she advised parents that the CPSE could not recommend the additional services because it was limited to recommending either related services or a center-based educational program (Transcript, p. 10). She further testified that Kennedy provided one and one-half hours of ABA during the day, while two other center-based programs provided more ABA during the day. The administrator asserted that petitioners could have chosen either of those two facilities, but had instead elected to send their child to Kennedy in order for her to obtain more socialization.

        Petitioners requested an impartial hearing to challenge the CPSE’s refusal to recommend the additional services they had requested for their child. The hearing was held on July 7, 1999. At the hearing, the child's mother testified that her daughter had made very little progress prior to receiving an intensive program of ABA at home, and that the child could concentrate more effectively and learn more easily since an intensive ABA behavioral management program had been implemented. She asserted that her child required a total of 40 hours of ABA training per week, and that respondent should be required to provide 15 hours of such training per week at the child’s home to supplement the 25 hours of instruction per week which the child would receive at Kennedy. In support of petitioners’ position, the child’s speech/language therapist and her occupational therapist testified that more ABA training would be better for the child.

        The hearing officer rendered his decision on August 24, 1999. He found that the Board of Education's proposed placement was reasonably calculated to allow the child to receive educational benefit. Therefore, he found that the Board of Education's proposed placement was appropriate, and denied the parent's request for additional ABA training at home.

        Initially, I note that an impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision, and to permit a meaningful review of the issues (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25; Application of a Child with a Disability, Appeal No. 97-62). At the hearing in this proceeding, the hearing officer accepted the eleven documents offered by petitioners and the eighteen documents offered by respondent. The CPSE administrator briefly stated the CPSE's position, as noted above. She did not testify about the appropriateness of the educational program which the CPSE had offered, nor did she call any other witness to provide such testimony. The child's mother briefly testified, as did the child's speech/language therapist and occupational therapist.

        The child's mother raised an issue with respect to the composition of the CPSE when it prepared her child's IEP. She asserted that the parent member of the CPSE had not attended the April 28, 1998 CPSE meeting, even though a parent member's name appeared on the IEP (cf. Section 4410 [3][a][1] of the Education Law; Application of a Child with a Disability, Appeal No. 98-82). The mother also asserted that petitioners had not been afforded an opportunity to be equal participants in developing the IEP. The CPSE administrator did not respond to these assertions, and the hearing officer failed to address them in his decision. It is a hearing officer's responsibility to address procedural as well as substantive challenges to a CPSE's or CSE's recommendation. I find that the hearing officer failed to address petitioners' procedural objections to the IEP. I must note that there is no basis in the limited record before me to rule upon those objections.

        The primary substantive issue before the hearing officer was whether respondent had met its burden of demonstrating the appropriateness of the educational program which its CPSE had recommended (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child with a Disability, Appeal No. 96-33). Respondent was required to show that the program which the CPSE recommended would meet this child’s specific needs (Application of a Child with a Disability, Appeal No. 97-67). The parents have not specifically challenged the IEP’s description of their child, which I have reviewed and found to be accurate. Although they asserted at the hearing that they were not given a chance to help draft their child’s annual goals and short-term objectives, petitioners have not identified any specific disagreement with the goals and objectives. I have also looked at them, and find that they were appropriate.

        Petitioners challenge the adequacy of the special education services which the CPSE recommended for their child. In essence, they contend that those services are inadequate and that their child required the additional hours of ABA training at home which they sought for her in order for the child to receive a free appropriate public education (FAPE) (Application of a Child with a Disability, Appeal No. 97-30). They rely upon the written opinion of a developmental pediatrician who had evaluated the child at the Staten Island Hospital on April 1, 1999, and subsequently wrote to the CPSE about the child on May 11, 1999 (Exhibit D). In her evaluation report, the pediatrician recommended that the girl attend a "therapeutic preschool" with autistic children and receive ABA therapy on a daily basis with five day a week individual and group speech/language therapy. The pediatrician opined in her May 11 letter to the CPSE that the child required "15 home based hours a week of ABA therapy combined with speech and oral motor therapy in addition to her 25 hours per week at Joan Kennedy program to prevent regression and continue to promote advancement of her skills".

        Petitioners also rely upon a letter to the CPSE dated April 26, 1999, by the coordinator of the child’s home-based ABA program during the 1998-99 school year (Exhibit 2). The coordinator reported that the child responded well to the discrete trial methodology of ABA in special education, speech/language therapy, and occupational therapy. She opined that the child needed ABA training to address her learning, behavioral, and social needs, and would continue to need a home-based ABA program in addition to a full-day center-based program. She recommended that the child receive a minimum of 10 hours per week of ABA training at home.

        As noted above, respondent failed to present any witness to defend the educational appropriateness of the center-based program without the additional training sought by petitioners, or to refute petitioners’ contention that their child required the additional training in order to receive a FAPE (see Application of a Child with a Disability, Appeal No. 96-58; Application of a Child with a Disability, Appeal No. 96-29; Application of a Child with a Disability, Appeal No. 99-27). While petitioners must do more than merely assert that their child would not make satisfactory progress towards achieving her IEP goals without the extra ABA training, I find that the only relevant evidence in the record supports their position. In particular, I am persuaded by the pediatrician's opinion that the child would regress without the additional ABA training.

        The last question to be decided is what is an appropriate remedy in view of the fact that the 1999-2000 school year ended before this appeal could be decided. In essence, I have found that the child would not have received a FAPE during the 1999-2000 school year without the additional ABA training which her parents sought for her. The record does not reveal whether the child in fact received the additional ABA training from some other source. Since I cannot ascertain the harm which has resulted from respondent's failure to provide the extra 15 hours per week of ABA training at home, I will direct respondent's CPSE to review her present educational program and recommend additional amounts of appropriate special education services to address any deficiency caused by respondent's failure to provide that training during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 93-34).


IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent's CPSE shall conduct a review and make recommendations as indicated in this decision within 30 days after the date of the decision.

Topical Index

Annual Goals
CSE ProcessCSE Composition
CSE ProcessParent Participation
Parent Appeal
Preliminary MattersPleadingsService of Pleadings
Present Levels of Performance
ReliefCSE Reconvene