Application of the BOARD OF EDUCATION OF THE SYOSSET 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
Vanessa M. Sheehan, Esq., attorney for petitioner, Randy Glasser, Esq., of counsel
Pamela Phillips Tucker, Esq., attorney for respondents
Petitioner, the Board of Education of the Syosset Central School District, appeals from an impartial hearing officer's decision finding that the educational program recommended by its committee on special education (CSE) for respondents’ daughter during the 1999-2000 school year was inappropriate. Respondents cross-appeal from the hearing officer's determination upholding the CSE's recommendation to classify their daughter as multiply disabled. The appeal must be sustained in part. The cross-appeal must be sustained.
Preliminarily, I will address a procedural issue in this appeal. The Board of Education asserts respondents' answer and cross-appeal are untimely because they were served more than 10 days after respondents were served with the petition. An answer must be served within ten days of service of a petition (8 NYCRR 279.5). The petition in this appeal was served on March 7, 2000. Respondents' answer, which included a cross-appeal as authorized by 8 NYCRR 279.4[b], was due on Friday March 17, but was not served until March 20, 2000, the following Monday. Under the circumstances, I find that the delay was minimal. I note that petitioner has filed a reply to the cross-appeal, and therefore has not been deprived of an opportunity to address the issues raised therein. As petitioner has not demonstrated any prejudice as a result of the delay, I will accept respondents' answer and cross-appeal.
The child was five years old and attending a Nassau County Board of Cooperative Educational Services (BOCES) program at the Jamaica Avenue School in Plainview, New York at the time of the hearing. In March 1996, when she was 23 months old, the child was seen for a pediatric neurodevelopmental evaluation because of motor and developmental delays (Exhibit 8). The pediatrician who conducted the evaluation reported that the child was not cooperative during the testing. She made almost no eye contact with the examiner and her attention span varied from being under-focused for the testing to over-focused on the books in the room. Her speech was described as "babbling and jargoning". The pediatrician concluded that the child demonstrated global delays, noting that language was her lowest area of functioning. She indicated that the child's behavior met four of the criteria for a pervasive developmental disorder (PDD). Although the child appeared to be on the autistic spectrum, the evaluator cautioned that it could not be determined whether she met the criteria for an autistic disorder because of her age. She recommended that the child begin speech/language, educational and physical therapy, and advised the parents about Nassau County's early intervention program. She also recommended that the child participate in a toddler playgroup, or if the child was unable to function in that setting, the pediatrician suggested that the child be placed in a center-based program with related services.
The child began receiving early intervention services through the Developmental Disabilities Institute (DDI) in April 1996 (Transcript p. 1042). She was provided 20 hours of discrete trial training or teaching per week. Discrete trial training involves breaking down a task into manageable components. The components are taught to the student in a series of consistent sessions of stimulus, response and reinforcement. It is a technique used in a teaching methodology commonly referred to as applied behavior analysis (ABA), which is a highly structured, data-based approach frequently used with the autistic population. The child also received 30 minutes of special education itinerant services (Section 4410[k] of the Education Law) twice per week, 30 minutes of language therapy twice per week, and 45 minutes of physical therapy twice per week. In addition to the services provided by DDI, the child's parents arranged for her to have at least two hours per week of discrete trial training at home (Transcript pp. 1041, 1052 and 1053).
A neurologist who evaluated the child in June 1996 indicated that the child had a global delay in development with a severe delay in speech/language development, and recommended a neurological work-up (Exhibit 9). On December 10, 1996, the pediatrician who evaluated the child in March 1996 reported that the results from the neurological work-up were normal, and that the child had been discharged from further follow-up (Exhibit 10). The pediatrician noted that the child demonstrated more eye contact and was much better related than she was during her March visit. She further noted that the child played appropriately with some toys and was less obsessed with books. Though the child's attention span was short, it had improved to the extent that the pediatrician was able to accomplish a small amount of formal testing. The child's receptive language skills were assessed to be at an 18 month level, her expressive skills were at a 15 to 18 month level, her fine motor skills were approximately at age level, and her gross motor and personal/social skills were six months delayed. The pediatrician opined that the child had made significant progress, and recommended that she continue with her then-current program.
The child was initially referred to petitioner's committee on preschool special education (CPSE) in April 1997 (Exhibit U). In July 1997, the CPSE recommended that the child be classified as a preschool student with a disability (Exhibit W). It also recommended that the child be placed at the Variety Pre-Schooler's Workshop (Variety) in a half-day program for the remainder of the summer, and that she attend Variety’s full-day program beginning in the fall of 1997. The CPSE further recommended that the child receive speech/language therapy, and that a physical therapy evaluation be conducted. The individualized education program (IEP) developed at that meeting showed that the child had scored in the three to six month age range for auditory reception and expressive communication on the Rossetti Infant Toddler Language Scale (Rosetti).
A psychologist who evaluated the child in June 1997 indicated that the child's overall cognitive functioning could not be ascertained with the Stanford Binet Intelligence Scale because the child had a limited understanding of task demands and difficulty accepting direction (Exhibit D). He reported that several measures were attempted, all of which showed that the child was functioning below age expectations with skills ranging from ten to 21 months of age.
On July 31, 1997, the CPSE added physical therapy to the child's IEP (Exhibit Y). It added occupational therapy to the child's IEP in October 1997 (Exhibit AA). The child remained at Variety for the 1997-98 school year. The parents continued to provide home instruction to their daughter during most of that year.
In a February 1998 speech/language evaluation, the child's speech/language pathologist noted that the child had been receiving speech/language services five times per week in individual and group sessions, as well as daily implementation of goals in the classroom setting at Variety (Exhibit L). She indicated that formal assessment of the child's language skills was difficult because of the child's inability to point to pictures and inconsistent responses to auditory cues. On the Rossetti, the child performed in the nine to 12 month age range in language comprehension and expression. She was able to respond to her name, follow simple commands, nod "yes" consistently and wave good-bye. She also was able to vocalize several syllables and sign one or two words. The speech/language pathologist described the child's language as extremely limited in variety, and noted that the child required frequent verbal, visual and tactile prompts to respond. The speech/language pathologist recommended that the child continue to receive speech/language language services five times per week in individual or group sessions.
In a report prepared by Variety in February 1998, the child was described as regressing in attending skills and her in ability to make transitions after weekends and particularly after vacations or extended absences (Exhibit O). The report indicated that she took days or often weeks to regain the skills she had mastered prior to the weekends or vacations.
In April 1998, the CPSE recommended that the child be enrolled in the BOCES program at the Jamaica Avenue School for the 1998-99 school year (Exhibit CC). The IEP included the child's previous scores in auditory reception and expressive communication (three to six-month age range), as well as a score of 18 months in writing on the Peabody Developmental Motor Scale. The IEP also included a notation that a new psychological evaluation would be requested for the following year. The child attended the BOCES program during the 1998-99 school year, during which her parents continued their daughter's home instruction program.
The CPSE met in March 1999 to prepare a recommendation for the child's placement in the fall to be given to the committee on special education (CSE) which would assume responsibility for the child after she became five years old in April 1999 (HH). The CPSE noted that the child was making slow but steady gains on a picture exchange communication system (PECS), a picture schedule, and a token board. It recommended that the child continue in a full-day program.
In an end of year summary, the child's teacher indicated that the child was able to use PECS to request desired items, and that she had developed the ability to point, which would enable her to work on picture identification and increase her vocabulary (Exhibit R). The teacher noted that the child's attending skills had increased, and she had demonstrated the ability to imitate action. However, she needed to work on improving her verbal imitation. The child was beginning to respond to yes/no questions by nodding and shaking her head appropriately, but she did not consistently verbalize responses. The teacher indicated that the child followed a picture schedule to complete independent tasks and to transition from one activity to the next independently.
On June 1, 1999, the CSE recommended that the child be classified as multiply disabled, and that she remain at the Jamaica Avenue BOCES program for the 1999-2000 school year (Exhibit KK). It further recommended that she receive 30 minutes of speech/language therapy five times per week, 30 minutes of physical therapy twice per week and 30 minutes of occupational therapy per week. On her IEP, the CSE indicated that the child was untestable and that a new psychological would be conducted when the child was better able to participate. The IEP also included a notation indicating that the parents requested two additional hours of home instruction to accelerate their daughter's progress and help generalize her skills at home. Generalization is the ability to apply the skills learned at school to other environments. The CSE determined that supplemental home services were not necessary for the child to receive a free appropriate public education (FAPE) (Transcript p. 164).
On August 3, 1999, respondents requested a due process hearing to obtain an additional ten hours of ABA instruction and one and one-half hours of speech/language therapy per week for their daughter to be provided at district expense (Exhibit Z). The child remained at the Jamaica Avenue BOCES program during the 1999-2000 school year, and respondents continued their daughter's home instruction program.
In October 1999, a private psychologist observed the child working in a discrete trial training session (Exhibit 6). The psychologist reported that the child worked well with her teacher in what were extremely basic discrete trials. He noted that the teacher used a total communication approach, combining sign language with the spoken word, and expressed concern that generalization would be difficult if the same approach were not used with the child at home. He expressed the same concern about the PECS and vocal approximations. He indicated that communication between home and school and follow-through at home needed to be exemplary for generalization to occur. He also expressed concern about the child's lack of significant progress, noting that it been more than a year since she began receiving discrete trial training.
On October 25, 1999, the child was observed in the BOCES program by an independent consultant (Exhibit JJJ). The child's teacher advised the consultant that the child was making slow, steady progress, and had recently begun to verbalize more. The child’s toileting skills had also improved. The teacher indicated that she was planning additional group activities for the child, but expressed concern about the child's ability to function as part of a group. The consultant reported that the child worked hard trying to follow one-step simple commands during a discrete trial training session, and had vocalized in a monotone through most of the session. After the discrete trail training session, the child completed three wooden puzzles at her independent work-station. She had to be refocused several times during this activity. The consultant indicated that the child responded positively to the structure and warmth provided by her teacher, and she opined that the child was making progress commensurate with her expectations. The consultant concluded that the child was in an appropriate educational placement.
The impartial hearing began on September 9, 1999 and was held on various dates ending on December 17, 1999. The hearing officer rendered his decision on February 7, 2000. He found that the child met the criteria for classification as autistic and speech impaired, and had been appropriately classified as multiply disabled. However, he found that the child’s IEP was deficient because it failed to provide for parent counseling and training in accordance with the provisions of 8 NYCRR 200.13(d), which pertains to the education of autistic children. Additionally, he found that the manner and amount of speech/language services provided pursuant to the child’s IEP did not address her speech/language needs. In determining the appropriateness of the child’s program at the BOCES, the hearing officer indicated that he had difficulty evaluating the testimony of BOCES personnel because they indicated that their employer prohibited them from testifying about the child’s need for home instruction. He concluded that the child required an intensive ABA program, and found that the program recommended by the CSE was not intensive enough to enable the child to receive an educational benefit. The hearing officer remanded the matter to the CSE to amend the child's IEP to provide for a more intensive 1:1 program of instruction and to address the child’s speech/language needs, with the amended IEP to continue through the summer of 2000. He ordered the CSE to monitor the child’s program on at least a monthly basis and to make adjustments as required. He further ordered that a description of all discussions and a rationale for all decisions with respect to the child's program be reflected on the IEP. The hearing officer also directed the Board of Education to reimburse the parents for their expenses for the home services they obtained for their daughter from September 1999 until the implementation of the program developed in accordance with his decision.
The Board of Education appeals from the hearing officer's decision on several grounds. The parents cross-appeal on the issue of the appropriateness of the classification. They assert that their daughter should be classified as autistic. I will address the cross-appeal first. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). Multiply disabled means:
A student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments (8 NYCRR 200.1[mm]).
As defined in state regulation, autistic means:
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]).
Petitioner asserts that it did not receive a medical diagnosis of autism until respondents entered in evidence such a diagnosis by a psychiatrist, dated August 23, 1999, at the hearing on December 10, 1999 (Exhibit 7). It offers nothing to refute the validity of the diagnosis, but it argues that the CSE did not have a definitive evaluation supporting a classification of autistic when it classified the child as multiply disabled in June 1999. I note that it was the CSE’s responsibility to adequately evaluate the child.
Although this child has significant deficits in her speech, it does not follow that her speech impairment should be considered as a separate disability. As noted above, the regulatory definition of autistic includes a severe disturbance of speech and language. The speech/language needs of autistic children must be addressed in their educational program. Indeed, the state regulation describing the components of an educational program for autistic children sets forth minimum requirements for speech/language therapy to be included in such programs (See 8 NYCRR 200.13[a]). In order to meet the definition of multiply disabled, a child must have a combination of the disabilities which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments. In this case, there is no evidence that the child's educational needs could not have been accommodated in a program for autistic children meeting the requirements of 8 NYCRR 200.13. Therefore, I find that the child should be classified as autistic. Accordingly, respondents' cross-appeal is sustained.
Petitioner appeals from the hearing officer's finding that the program recommended by its CSE was inappropriate. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).
Petitioner asserts that the IEP its CSE prepared on June 1, 1999 was adequate and appropriate for respondents’ daughter. Having reviewed that IEP (Exhibit KK), I note that it did not include any annual goals and short-term objectives for the special education and related services recommended by the CSE. A second IEP developed by the BOCES included annual goals and objectives for special education and speech/language therapy, but not for occupational therapy or physical therapy (Exhibit MM). The record does not reveal whether only one of the IEPs is operative, or how the two IEPs will be used in conjunction with each other. Each CSE has the responsibility to ascertain a pupil's needs, draft appropriate annual goals, and recommend the special education and related services the pupil requires in order to have a reasonable chance of achieving those annual goals. A CSE may not delegate to others the task of determining the amount or nature of the services which a pupil requires (Application of a Child with a Handicapping Condition, Appeal 90-12; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 291 ).
The record is also unclear whether the child’s parents were provided an opportunity to review the IEP developed by BOCES. A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (Application of a Child with a Disability, Appeal No. 96-31). However, I must note that the hearing officer’s directive that the child’s future IEPs include a description of all discussions had in CSE meetings and a rationale for all decisions made with respect to the child’s program is not premised upon either federal or state regulation.
Additionally, I note that there is no reference to parent counseling and education on either IEP. State regulation requires that educational programs for students with autism must include parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). The hearing officer found that the Board of Education could not meet the regulatory requirement by merely advising parents that parent counseling and education was available. He noted that in this case a parent counseling and education program wasn't developed until late fall, and that the CSE failed to consider or even request it until December 1999. The hearing officer ordered the CSE to develop goals and objectives for parent counseling and training to be included on the child's IEP. He further ordered that the new provisions of the IEP must be clearly delineated and provided in an organized way. While I don't agree with the hearing officer that state regulation requires the IEP to include annual goals for parent counseling and education, I find that at the very least parent counseling and education should have been identified on the IEP as a related service. The record clearly demonstrates the importance of effective communication between home and school for generalization to occur. For all of the foregoing reasons, I find that the IEP developed by petitioner's CSE is insufficient and that petitioner has failed to demonstrate the appropriateness of its recommended program.
Petitioner challenges the hearing officer’s order that it reimburse respondents for their expenses for the home services they obtained for their daughter from September 1999 until the implementation of a more intensive program. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). Having determined that petitioner failed to demonstrate the appropriateness of the recommended program because the IEP developed by its CSE was deficient, I find that respondents have prevailed with respect to the first criterion for an award of reimbursement.
With respect to the second criterion for an award of reimbursement, a student's parent bears the burden of proving the appropriateness of the educational services selected (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parent must show that the educational services met the student's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). No one disputes that the child learns best with discrete trial training. The question to be determined is whether the additional instruction provided by respondents was necessary in order for the child to have an appropriate educational program.
The record shows that the child has been receiving discrete trial training in varying amounts since she began receiving early intervention services in 1996. The record further shows that the child received two hours per day for a total of ten hours per week of discrete trial training at the Jamaica Avenue BOCES program during the 1998-99 school year (Transcript p. 276, Exhibit 5). The child's teacher reported that the child had made slow, steady progress that year. The recommended program also provided for two hours of discrete trial training per day for a total of ten hours per week (Transcript p. 176). The CSE determined that the child was making progress in her current program and that she did not require supplemental services.
The psychologist who testified on behalf of the parents indicated that the ABA literature recommends between 25 and 40 hours per week of discrete trial training (Transcript p. 960). However, he further testified that the child's rate of progress must also be considered in determining the appropriate amount of instruction. The psychologist also testified that the child was still working at an introductory level, and that she should be functioning at a higher level after over one year of programming (Transcript pp. 535 and 605). He concluded that the child was functioning at a level where she would need as much of the 25 to 40 hours as possible (Transcript p. 961). I have reviewed the child’s prior IEPs as well as her IEP for the 1999-2000 school year. An analysis of her annual goals in the IEPs suggests that her progress has been slow. There may of course be various reasons for her slow rate of progress. However, I find that she required more discrete trial training than was recommended by the CSE to make significant progress towards achieving her annual goals and thus receive an educational benefit. Given the severity of the child's condition, her current functioning level, the consensus that she learns best with a discrete trial training format and the relatively few hours of discrete trial training she is being provided in the current program, I find that the additional hours of home instruction provided by the parents were necessary to help address the child's special education needs. Accordingly, I find that the parents have demonstrated the appropriateness of the services they obtained for their daughter.
The third criterion for an award of reimbursement is whether equitable considerations support the parents claim for reimbursement. There is nothing in the record to suggest that the parents failed to cooperate with the CSE. I find that equitable considerations support the parents' claim, and that they are entitled to reimbursement for the expenses they incurred for the home instruction they obtained for their daughter.
Petitioner contends that the hearing officer erred by remanded the matter to the CSE to develop a more intensive program for the 1999-2000 school year, with instructions as to what information should be included on the IEP. However, the 1999-2000 school year ended before this appeal could be decided and any order with respect to the IEP for that school year is moot. Nevertheless, the question of what remedy for petitioner’s failure to provide an appropriate program remains. Since I cannot ascertain the harm which has resulted from petitioner's failure to provide a more intensive ABA program, I will direct petitioner's CSE to review the child's current level of functioning and the present educational program, and recommend additional amounts of appropriate special education services to address any deficiency caused by petitioner's failure to provide the appropriate instruction during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 93-34).
I have considered petitioner's other claims which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent it upheld the CSE’s recommendation to classify the child as multiply disabled, and it directed that the child’s IEP to include a description of the discussions had during the CSE meeting and a rationale for each decision made regarding the child’s program; and,
IT IS FURTHER ORDERED that respondents’ child should be classified as autistic.