99-090

       Petitioner, the Board of Education of the Monroe-Woodbury Central School District, appeals from three interim decisions by an impartial hearing officer with regard to the child's pendency placement. The hearing officer ordered petitioner to provide applied behavioral analysis (ABA) training to respondents’ autistic son at his home, pending a hearing to review the appropriateness of the educational program which petitioner's committee on special education (CSE) had recommended for the boy during the 1999-2000 school year. The appeal must be sustained in part.

        Respondents’ son will become seven years old this month. The child has reportedly been diagnosed as having "static encephalopathy, associated with autistic features"(Joint Exhibit 2). He reportedly received early intervention services prior to becoming classified as a preschool child with a disability by petitioner’s committee on preschool special education (CPSE). While under the jurisdiction of the CPSE during the 1997-98 and 1998-99 school years, the boy attended the Warwick Preschool in Goshen, N.Y. His educational program for the first half of the latter school year consisted of two and one-half hours of instruction per day in a 12:1:2 class, plus twelve and one-half hours per week of individual special education itinerant services (Joint Exhibit 4). In addition, he received the related services of speech/language therapy, physical therapy, and occupational therapy. Each of his related services was provided to him at the Warwick Preschool.

        The special education itinerant services were added to the child’s educational program in October, 1998, at the suggestion of the Warwick Preschool staff. Special education itinerant services are defined by the Regulations of the Commissioner of Education as "…services provided by a certified special education teacher of an approved program on an itinerant basis at a site determined by the board [of education] including but not limited to an approved or licensed prekindergarten or head start program; the student’s home; a hospital; a State facility; or a child care location as defined in section 4410 of the Education Law." ( 8 NYCRR 200.16 [h][3][iii]). The teacher who provided the boy’s special education itinerant services used the ABA technique. Those services were provided at the child’s home because there was no available space at the Warwick Preschool for that purpose (September 9, 1999 Transcript p.5).

        In January, 1999, the CPSE amended the child’s individualized education program (IEP) by increasing the amount of his special education itinerant services to seventeen and one-half hours per week to address concerns about significant delays in his language skills (Joint Exhibit 3). The CPSE reviewed the boy’s progress on June 21, 1999, when it prepared his IEP for the months of July and August, 1999. The IEP provided that the child would continue to receive to receive a total of twelve and one-half hours per week of instruction in a 12:1:2 class at the preschool and seventeen and one-half hours of individual direct special education itinerant services per week (Joint Exhibit 1).

        Respondents’ child passed from the CPSE’s jurisdiction to that of the CSE when he became eligible to attend kindergarten in September, 1999. The CSE met with respondents on July 6, 1999 to prepare their child’s IEP for the 1999-2000 school year. The CSE recommended that the child be placed in a special education kindergarten class with a 12:1:1 child to adult ratio at petitioner’s Sapphire Elementary School for a total of 28 hours per week (Joint Exhibit 2). The CSE further recommended he receive individual resource room services for two hours per day at the same location. Those services would "focus on behavioral analysis and behavioral instruction". The CSE also recommended that the child continue to receive the related services of speech/language therapy, physical therapy, and occupational therapy.

        Respondents had requested that their son receive a half-day kindergarten program, and at least 20 hours of individual instruction at home per week (Joint Exhibit 2). In denying their request, the CSE indicated that it would review the child’s program after the first ten weeks of school, and it recommended a "second opinion" be obtained from its consultant on autism.

        By letter dated July 15, 1999, respondents requested that an impartial hearing be held to review the CSE’s recommendations. A hearing officer was appointed shortly thereafter. The hearing was reportedly scheduled to begin on August 23, 1999, but it was adjourned until September 7, 1999. On September 7 and 8, 1999, the hearing officer took evidence and listened to the parties’ arguments about what the child’s pendency placement should be during the due process proceedings to review the CSE’s recommendations.

        In his first interim decision, which was rendered on September 12, 1999, the hearing officer noted that respondents had accepted the CSE’s recommendation with respect to their son’s placement in a kindergarten class at the Sapphire Elementary School, and that they did not dispute the CSE’s recommendation with respect to the child’s related services. However, the parents did not accept the recommendation for ten hours per week of individual ABA training (resource room services) at the Sapphire Elementary School, and they sought a determination that petitioner should provide seventeen and one-half hours of that training to their son in his home. The hearing officer found that the boy had been receiving seventeen and one-half hours of ABA training per week. He further found that the proposed resource room program to provide that training for two hours per day, five days per week, would result in a decrease of seven and one-half hours of ABA training per week. The hearing officer held that the proposed reduction in the number of hours of the training was a significant change in the child’s program which could not be implemented without his parents’ consent. He also determined that the Board of Education must continue to provide the seventeen and one-half hours of training in the child’s home. The decretal provision of his decision indicated that the child was to receive seventeen and one-half hours of ABA services at home "in the same manner and time frames as provided by the Warwick School" (Exhibit A to Petition).

        A dispute arose between the parties about the manner and time frames for providing the child’s ABA training. When the hearing resumed on September 27, 1999, the hearing officer was asked to decide whether the Board of Education could implement his interim order by providing 17 hours of ABA training to the boy in his home in three and one-half hour sessions, Monday through Friday. Petitioner asserted that its proposal was consistent with the manner in which the boy’s program had been provided by the Warwick Preschool, and that in any event, it had the authority to make adjustments in the schedule for delivering services to the child. The child’s parents sought a determination that the ABA services be provided in sessions of no more than two and one-half hours, Monday through Sunday.

        On September 28, 1999, the hearing officer issued his second interim decision. While agreeing with the Board of Education that it had some flexibility in providing services to the boy, the hearing officer found that 77% of the boy’s ABA training had previously been provided in sessions of no more than two and one-half hours, and the remaining 23% of the sessions had been for no more than three hours. He ruled that petitioner must provide 80% of the child’s ABA training in sessions of no more than two and one-half hours, except that 40% of those sessions could be increased by no more than 30 minutes, and the remaining 20% of the ABA training sessions were to be provided in sessions of no more than three hours, except that 20% of those sessions could be increased by one-half hour (Exhibit B to Petition).

        In his second interim decision, the hearing officer did not resolve the issue of whether the boy’s services were to be provided on a five-day or seven-day per week basis. The parties continued to disagree about this, and requested further guidance from the hearing officer when the hearing resumed on October 7, 1999. In an oral decision, the hearing officer reportedly established the schedule for the boy’s ABA training, which was to take place on a Monday through Friday basis (Exhibit C to Petition).

        The Board of Education appeals from all three of the hearing officer’s interim decisions. Petitioner notes that special education itinerant services are by definition a service for preschool children with disabilities, and that the relevant statute provides that a preschool child with a disability shall be entitled to such services in the home if "the board determines that documented medical or special needs of the preschool child indicate that the child should not be transported to another site" (Section 4410 [1][k] of the Education Law). It contends that its CPSE never determined that the boy required services at his house, and that his special education itinerant services were provided to him in his home during the 1998-99 school year because it was not convenient for the Warwick Preschool to provide them at its facility. It further contends that there was no fixed schedule for providing ABA services to the boy at home, and that services were provided in a manner to accommodate the schedules of the service providers. Petitioner argues that the hearing officer incorrectly applied the pendency provisions of Federal and State law to the facts of this case and reached an erroneous conclusion. Respondents dispute that argument.

        The current Federal statutory pendency provision reads, in material part, as follows: "... during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child…until all such proceedings have been completed" (20 USC 1415 [j]). The statute makes no distinction between preschool children with disabilities and school age children with disabilities, and it applies to a child transitioning from preschool to kindergarten (Application of a Child with a Disability , Appeal No. 96-48).

        Although not defined by statute, the term "then-current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Application of a Child with a Disability, Appeal No. 97-80). The U.S. Office of Education has opined that a child’s then-current placement would "… generally be taken to mean current special education and related services provided in accordance with the child’s most recent [IEP]" (EHLR 21:48), (see also Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]; Gregory K. v. Longview School District, 811 F. 2d 1307 [9^th Cir., 1987]). In this instance, the child’s related services are not at issue.

        The initial question is what was this child’s last agreed upon placement when his parents requested a hearing to challenge the IEP which petitioner’s CSE had prepared on July 6, 1999? I note that his IEP for the 1998-99 school year as amended on January 13, 1999 (Joint Exhibit 3), and his IEP for the months of July and August, 1999 (Joint Exhibit 1) each provided that he was to receive twelve and one-half hours of classroom instruction per week and seventeen and one-half hours per week of individual special education itinerant service per week. I find that for pendency purposes, the boy’s program should have consisted of twelve and one-half hours of classroom instruction and seventeen and one-half hours of individual special education itinerant service per week. I agree with the hearing officer’s determination in his first interim decision that the Board of Education could not unilaterally reduce the amount of the child’s individual instruction from seventeen and one-half hours per week to ten hours per week in its proposed resource room program. The proposed change was not a mere scheduling adjustment (see Application of Board of Education of the Ellenville Central School District, Appeal No. 92-22).

        Petitioner also challenges the portion of the hearing officer’s first interim decision ordering the school district to provide the boy’s individualized instruction to him at home. It asserts that its CPSE never determined that the boy had special needs which required that he receive services at home, rather than in school, as it could have done pursuant to Section 4410(k) of the Education Law. I note that the boy’s initial and amended IEPs for the 1998-99 school year do not indicate that his special education itinerant service were to be provided to him in his home. His IEP for July and August, 1999 is also silent with respect to the site of the special education service. Petitioner's Director of Pupil Personnel Services acknowledged at the hearing that petitioner's staff was aware that the child was receiving his special education itinerant services at his home, but he insisted that the CPSE had not determined that those services should be provided at that location.

        Respondents admit that representatives of the Warwick Preschool testified at the hearing that their son’s individual instruction was provided at his home because there was no room to provide it at the school (Paragraph 12 of the Answer). They nevertheless assert that it would be detrimental to their son to receive all seventeen and one-half hours of individual instruction at school. While I have considered respondents’ assertion, I must note that neither the hearing officer nor I may base a pendency decision upon the educational merits of one educational program over another. In any event, I find that respondents’ assertion is not established by the limited record which is before me. However, that is not dispositive of the matter. Although the CPSE did not specify on the boy’s IEPs that his special education services were to be provided at his home, it is clear from the record that the CPSE and the parents understood that those services would be provided at the boy’s home.

        In 1994, the U.S. Department of Education's Office for Special Education Programs opined that a "change in educational placement" means a material alteration of a student's program, rather than a mere change in the physical location of the student's program (21 IDELR 992). Although a change of an educational program's location is not per se a change in that program or the child's placement, a change of location which involves moving a child's program from a more restrictive setting to a less restrictive setting is a change of placement for purposes of the pendency provisions of Federal and State law (Application of a Child with a Disability, Appeal No. 93-8). In this instance, the boy's special education services had been provided in his home. The Board of Education proposed to provide his 1:1 ABA training in its Sapphire Elementary School. I find that the proposed change of location is a change of placement for purposes of the pendency provisions of Federal and State law. Therefore, I find that petitioner's appeal from the hearing officer's first interim decision should be dismissed.

        Petitioner appeals from the second and third interim decisions of the hearing officer on the ground that they intrude upon petitioner’s right to schedule the delivery of services to children. It also argues that the child’s service providers did not adhere to a set schedule, but instead provided services to accommodate their personal schedules.

        The hearing officer reviewed the service providers’ attendance and billing forms, and found that while approximately 23 % of the boy’s ABA services had been provided in three-hour segments, none had been provided in three and one-half hour segments. He attempted to provide petitioner with some scheduling flexibility by authorizing it to provide up to 20% of the boy’s ABA services in three-hour segments, and indicating that hose services could be increased by one-half hour.

        I must agree with petitioner that at least for purposes of the pendency provisions of Federal and State law, the scheduling of the delivery of services should be left to the discretion of the school district. Therefore, I will sustain its appeal with regard to the second and third interim decisions.

THE APPEAL IS SUTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s second and third interim decisions are hereby annulled.