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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 Eastchester Union Free School District


Gary S. Mayerson, Esq., attorney for petitioners

Keane and Beane, P.C., attorney for respondent, Frances M. Pantaleo, Esq., of counsel


        Petitioners appeal from an interim decision by an impartial hearing officer regarding their daughter's pendency placement during a due process hearing. Petitioners had sought an order compelling respondent to continue the services of personnel of the Center for Autism and Related Disorders (CARD) in providing applied behavioral analysis (ABA) training to their child. After petitioners had requested an impartial hearing, respondent continued to provide ABA to the child, but had discontinued the services of the CARD personnel. The appeal must be dismissed.

        Petitioners' daughter, who is seven years old, has been diagnosed as having a pervasive developmental disorder. She has been classified as Autistic by respondent's committee on special education (CSE). During the 1997-98 school year, the child was enrolled in a preschool program at the Fred S. Keller School (Exhibit SD-9). On July 23, 1998, the CSE determined that the child was eligible for a 12-month school program. It recommended that the child attend respondent's Waverly Early Childhood Center, where she was to receive a program of 20 ½ hours per week of ABA training on an individual basis. The CSE also recommended that the child receive 30 minutes of individual occupational therapy three times per week, and 45 minutes of individual speech/language therapy four times per week (Exhibits SD-26-27). At a meeting which was held on September 10, 1998, the CSE revised the child's IEP to provide that she receive 25 ½ hours of ABA per week on an individual basis, 30 minutes of individual occupational therapy three times per week and 30 minutes of individual speech/language therapy six times per week (Exhibit SD-33). Petitioners reportedly accepted the CSE's recommendations.

        Respondent contracted with CARD to provide ABA to petitioners' daughter. CARD is located in Hartsdale, New York. A CARD employee submitted progress reports to respondent throughout the 1998-99 school year (Exhibits SD-41, 48, 57 and 64). On March 8, 1999, the CSE met with petitioners to review the child's educational program. A CARD representative attended that meeting. He discussed the child's progress, and agreed to provide proposed amended IEP goals for the child to the CSE and petitioners. Petitioners requested that they receive parent training. The CSE chairperson indicated that he would discuss that matter with the CARD representative and report back to the CSE. The CSE considered, but denied, petitioners' request to increase the amount of the child's ABA training to 40 hours per week (Exhibit SD-49).

        On June 22, 1999, the CSE met with petitioners to prepare their child's IEP for the extended school year, i.e., for July and August, 1999. The CARD representative, who was described as the child's "Targeted Case Manager" in that meeting, was not present. Petitioners reportedly objected to holding the meeting without the CARD representative. The CSE prepared the child's IEP, which provided that the child would continue to receive 25 ½ hours of individual ABA during the summer. The IEP also provided that the child receive 30 minutes of individual occupational therapy three times per week or cycle, and 60 minutes of individual speech/language therapy three times per week or cycle (Exhibit SD-62). The recommended program was provided to the child at respondent's Anne Hutchinson Elementary School, because the Waverly Early Childhood Center was closed during the summer.

        The child's IEP for the 1999-2000 school year was prepared at a CSE meeting which was held on August 5, 1999. The child's mother attended the meeting, as did the CARD representative, who was listed in the meeting minutes as the child's special education teacher and Targeted Case Manager. The CSE recommended that the child be placed in a special class having an 8:1+1 child-to-adult ratio, and have an individual aide, at the Waverly Childhood Center. It further recommended that she receive 30 minutes of individual occupational therapy three times per week or cycle, and 60 minutes of individual speech/language therapy three times per week or cycle (Exhibit SD-75).

        Petitioners did not accept the CSE's recommendations. In a letter dated September 2, 1999, they objected to their daughter's proposed placement in the special education class, and to the CSE's refusal to increase the amount of the child's ABA training. Petitioners requested that an impartial hearing be held, and asserted that the child's pendency placement was in the program of individual instruction which she had received during the 1998-99 school year and the summer of 1999 (Exhibit SD-81).

        In a letter dated September 7, 1999, petitioners advised respondent that they would bring their child to the Waverly Early Childhood Center on September 8, 1999. When the child arrived at school on that date, petitioners discovered that her ABA training would be provided by respondent's staff rather than by CARD. They withdrew the child, and requested that she be provided with home instruction (Exhibit SD-85). The following day respondent's attorney advised petitioners that a certified speech/language therapist who was also trained to provide ABA would be responsible for their daughter's ABA training during the first week of school. The speech/language therapist would thereafter supervise a teacher's aide, who was being trained to provide ABA to the child. The attorney indicated that respondent had also arranged for the Center for Educational and Emotional Development (CEED) to provide ongoing technical support to the speech/language therapist and the aide with regard to ABA training (Exhibit SD-86). In an affidavit prepared for the impartial hearing, respondent's Director of Special Education confirmed that those arrangements had been made for providing ABA training to the child. The child returned to school on September 28, 1999, and began to receive ABA training from respondent's employees.

        Respondent appointed an impartial hearing officer on September 10, 1999. The hearing officer corresponded with the parties' attorneys about possible hearing dates, and selected dates in early November, 1999. At the request of the attorneys, the hearing was rescheduled to begin on December 8, 1999. On that day, petitioners' attorney applied to the impartial hearing officer for an interim order declaring that the pendency provisions of the Individuals with Disabilities Education Act (IDEA) required respondent to provide a program of 25 ½ hours of individual ABA training per week using CARD personnel pursuant to the child's last agreed upon IEP. Testimony on December 8, 1999 was limited to that issue, by agreement of the parties. Their attorneys submitted written argument on petitioners' motion for an interim order.

        The impartial hearing officer rendered his decision on petitioners' request for an interim order on April 2, 2000. He noted that the statute in question, 20 USC 1415 (j), provides in material part that:

" … 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."

        The hearing officer held that while respondent was required to provide each of the educational services listed on the child's IEP, the identity of the service providers was irrelevant as long as they were appropriately certified and their services were satisfactorily delivered. I note that there is no State certification for providers of ABA. He found that there was no evidence of a "detrimental change" in the services being provided to petitioners' daughter, and concluded that respondent had not violated the pendency provision of the IDEA. The hearing officer denied petitioners' application for an order requiring respondent to use CARD to provide ABA to the child during the pendency of the due process proceeding.

        This appeal was commenced on or about May 15, 2000. However, petitioners' pleadings were not properly served upon respondent, and their attorney was advised by the Office of State Review to re-serve the petition. The re-served petition was received on July 14, 2000.

        Petitioners challenge the hearing officer's determination. They assert that his decision is internally inconsistent because he reportedly found that CARD's provision of ABA services to the child was part of their child's last agreed upon placement at the time of petitioners' request for a hearing. Since it was part of their child's last agreed placement, petitioners argue that the hearing officer should have ordered the Board of Education to continue to use CARD to provide ABA training to their child. Petitioners also contend that there was no authority in statute or decisional law for the hearing officer to use an "essential element of the IEP" test in determining whether respondent must continue to use CARD.

        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 a child's most recent [IEP]" (EHLR 211:481), (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 [9th Cir., 1987]).

        The hearing in this proceeding was requested on September 2, 1999. The most recently agreed upon IEP at that time appears to have been the IEP which was prepared at the June 22, 1999 CSE meeting for use during the summer of 1999. Although petitioners were reportedly concerned about the CARD representative's absence from that meeting, there is no evidence in the record that they formally challenged that IEP. In any event, I have also examined the preceding IEP, i.e., the IEP which was prepared at the March 8, 1999 CSE meeting. Both IEPs provided that the child was to receive 25 ½ hours of individual ABA training per week, but neither IEP indicated that the ABA training would be provided by CARD. There is no dispute that CARD provided the ABA training to the child during the 1998-99 school year and the summer of 1999. The CARD supervisor who represented CARD at the March 8 CSE meeting also attended the August 5, 1999 CSE, when the child's IEP for the 1999-2000 school year was prepared.

        Petitioners do not claim that respondent has reduced the amount of their daughter's ABA training. In her affidavit (Exhibit C), respondent's Director of Special Education asserts that the child was continuing to receive 25 ½ hours of ABA training, and her related services during the pendency of the hearing. The Director of Special Education also asserts that during the summer of 1999, she arranged for the classroom teacher, classroom assistants, aides and other school personnel, including the school nurse, occupational therapist and speech/language therapists to receive ABA training at the beginning of the school year, and that one of respondent's speech/language therapists was thoroughly trained in ABA. She also arranged to have a qualified CEED employee review the CARD quarterly reports and the child's IEPs. The CEED employee also performed individual baseline testing of the child's functional levels, set up the log book which is used in the ABA program, and supervised and trained respondent's staff. Although the child's mother testified at the hearing that the program being provided by respondent was not the same as the program which CARD had provided, she did not explain the basis for her testimony.

        Upon the record which is before me, I am unable to find that the child's program has been changed in any way, except that different individuals are now providing ABA services to her. I agree with the hearing officer that petitioners have failed to demonstrate that respondent has violated the IDEA's pendency provisions. Although the New York State Education Law also has a pendency provision (Section 4404 [4]), it is similar to the IDEA provision, and does not afford petitioners an independent basis for obtaining the relief which they seek.


Topical Index

Educational PlacementSpecial Class8:1+1
Parent Appeal