00-094

        Petitioners appeal from an impartial hearing officer’s decision regarding the implementation of their son’s individualized education program (IEP) for the 1997-98 school year. They seek an order remanding the matter back to the hearing officer for further proceedings and a new determination by her on issues she allegedly failed to address, or in the alternative, for a new hearing before a different hearing officer. The appeal must be sustained in part.

        There is a preliminary procedural issue that must be addressed. Respondent contends that the appeal should be dismissed because petitioners did not serve their notice of intention to seek review more than 10 days before they served a copy of the petition for review, as required by Section 279.2(b) of the Regulations of the Commissioner of Education. However, the purpose of serving a notice of intention to seek review is to alert the board of education of its duty to promptly file the record of the hearing with the State Education Department (Application of the Board of Educ., Appeal No. 92-10). Here, the board of education promptly filed the record of the hearing with the State Education Department. Therefore, petitioners’ failure to serve the notice of intention in the prescribed manner does not afford a basis for dismissing this appeal (Application of a Child with a Disability, Appeal No. 95-66; Application of a Child Suspected of Having a Disability, Appeal No. 93-45).

        Petitioners’ son was six years old when the hearing began in April 1998. The child had been classified by respondent’s Committee on Special Education (CSE) as autistic and had been placed in a home-based instructional program using the applied behavioral analysis (ABA) technique during the 1996-97 school year. ABA involves the application of operant conditioning to the instruction of developmentally disabled students (Application of a Child with a Disability, Appeal No. 96-29). It is typically provided on a 1:1 basis to a student by a team of individuals who have been trained in the use of the technique but are not teachers, under a teacher’s supervision.

        During the 1996-97 school year, the child was to have received 40 hours of one-to-one ABA instruction per week for 50 weeks. Respondent contracted with the Early Childhood Intervention Center (ECIC) to provide a consultant for the child’s program. Petitioners’ son reportedly did not receive a full 40 hours of ABA instruction per week because of staffing difficulties (Exhibits P-12 and 35).

        In February 1997, an assistive technology evaluation of the child was performed at the Westchester County Medical Center. The evaluator had noted that the child was able to use a computer and educational software effectively and that he enjoyed computer programs that had a high level of user control. She found that the technology could be used to support his instructional program and provide him opportunities to generalize skills across situations. Therefore, she recommended that the child have the use of a computer for instruction in reading, writing, math, and speech/language development. Noting that the child had difficulty using the keyboard and the mouse, the evaluator recommended that petitioners’ son use an adapted keyboard and a trackball. In addition, she recommended the use of a workstation and variety of educational software (Exhibit SD-14).

        In April 1997, the child’s special education teacher reported that the child had made significant progress in kindergarten, noting that he had mastered 30 out of 50 IEP objectives. She further reported that he had mastered dressing, feeding and toileting, and had generalized most of those skills to their natural environment. However, she opined that the child had regressed in certain skills when he received 25 to 30 hours a week of ABA instruction because of staffing difficulties. The teacher recommended that the ABA program be continued and that he receive at least 40 hours of one-to-one ABA instruction from a teaching assistant each week. In addition, she recommended that a teacher instruct the child for at least eight hours per week, in addition to providing two hours of consultation time (Exhibit P-12).

        In May 1997, the ECIC recommended that three to six instructors implement the child’s ABA program. Each instructor was to work 4 to 12 hours per week and attend weekly staff meetings. It also recommended that the child’s program be provided throughout the entire year to avoid regression (Exhibit P-12).

        At its annual review on July 3, 1997, respondent’s CSE recommended that the child continue to be classified as autistic while in first grade during the 1997-98 school year. It also recommended that he receive 40 hours per week of one-to-one ABA instruction by an aide and two hours per month of service by a special education teacher in a home-based instructional program, with consultant services on an as needed basis. The child’s IEP indicated that the aides were to have two hours of staff meetings per week. In addition, the child was to be integrated into a 12:1+1 special class with an individual aide for 30 minutes per day (Exhibit SD-1). I must note that although the parties use the terms teaching assistant and teacher’s aide interchangeably, they have separate meanings pursuant to Section 80.33 of the Regulations of the Commissioner of Education. Respondent’s CSE also recommended that the child be provided with assistive technology, but it failed to specify the types of technology on the child’s IEP. In a letter reportedly sent to petitioners on or about July 8, 1997, the CSE chairperson indicated that the CSE had recommended an adaptive keyboard, an appropriate work station, and unspecified educational software (Exhibit SD-9). At the hearing, the CSE chairperson testified that the types of assistive technology were not listed on the child’s IEP so that petitioners would not have to request a CSE meeting each time they sought an upgrade of the computer software or other equipment recommended by the assistive technology evaluator (Transcript p. 404). The appropriateness of the child’s IEP for the 1997-98 school year is not in dispute in this proceeding (Transcript p. 5). I note that the record includes an amended IEP from a February 4, 1998 CSE meeting, that apparently reflects the fact that the CSE had not yet located an appropriate special education class for the child (Exhibit SD-6).

        The impartial hearing in this proceeding began on April 27, 1998. Petitioners’ attorney advised the hearing officer that there were three main issues to be resolved. First, petitioners asserted that respondent had failed to provide 40 hours of one-to-one ABA training on a consistent basis during the 1997-98 school year. Their attorney claimed that the child had lost approximately ten hours of such services per week since October 1997. Respondent’s attorney acknowledged that the full amount of service had not been provided to the child, but estimated that the lost service time did not amount to more than 30 hours. The second issue was whether respondent had provided assistive technology on a timely basis without cost to petitioners. They asserted that they had purchased various items for their son after being advised that it was necessary to obtain CSE approval for those items. They estimated that they had paid for approximately $100 worth of supplies for their son each month. Respondent’s attorney indicated that there was a distinction between supplies and equipment, and that only the latter had to have the prior approval by the CSE. The third issue related to the duration of the child’s educational program. His IEP for the 1997-98 school year indicated that his program would be provided for 50 weeks. Petitioners, through their attorney, asserted that respondent had not provided the educational program in accordance with that standard. Respondent’s attorney denied that assertion.

        The hearing continued on May 18, 1998, and concluded on May 26, 1998. On September 18, 1998, the parties’ attorneys appeared before the hearing officer for the purpose of considering petitioners’ claim that respondent had altered their son’s educational program during the pendency of the proceeding, in violation of the federal and state "stay put" provisions (20 USC § 1415[j]; § 4404[4] of the Education Law). Petitioners’ attorney asserted that respondent had retaliated against petitioners by changing the child’s service providers and refusing to schedule CSE meeting dates on convenient dates. Respondent’s attorney denied the charges, and asserted that they were outside the scope of this proceeding. The hearing officer agreed to take additional evidence regarding any attempted violation of the stay put provisions during the 1997-98 school year, but ruled that evidence about changes in the child’s program for the 1998-99 school year would not be allowed (Transcript p. 533). Testimony with regard to that issue continued on February 22, 1999.

        The hearing officer failed to render a decision, and in May 1999, the State Education Department directed respondent to appoint a replacement for the hearing officer. On June 4, 1999, the Board of Education appointed a new hearing officer. However, she did not reconvene the hearing until October 8, 1999, because of scheduling difficulties. It was agreed that she would be given copies of the prior hearing transcripts and documents (Transcript pp. 803, 828). However, the parties disagreed about what issues were to be decided by the hearing officer. Respondent asserted that issues relating to the 1998-99 school year were not properly part of this proceeding, while petitioners asserted that there had been a continuing violation of the stay put provisions that was part of this proceeding. Ultimately, the parties agreed that the hearing officer would decide the issues relating to the 1997-98 school year, and would assume jurisdiction to decide the issues relating to the 1998-99 school year in a subsequent hearing (Transcript pp. 828-830). The hearing concluded on January 21, 2000.

        The hearing officer rendered her decision on September 8, 2000. Although the contents of the child’s IEP for the 1997-98 school year were not in dispute, the hearing officer nevertheless scrutinized the IEP, and found that the IEP did not adequately describe the child’s present levels of performance and failed to include appropriate criteria for measuring the child’s progress in achieving his IEP goals. She also found that the IEP inadequately described the special services to be provided, and did not explain the purpose of the child’s placement in an integrated special education class. In addition, the hearing officer found that the IEP did not explain the extent to which the child would participate in state or district-wide testing, or clarify the extended school year (summer) component of the child’s program.

        With respect to the first issue that petitioners had raised at the outset of the hearing, the hearing officer did not make a specific finding about the number of hours of ABA instruction that respondent failed to provide to the child during the 1997-98 school year. She suggested that the parties needed to resolve the issue of whether the time taken to train teaching assistants to use the ABA methodology and to hold weekly staff meetings was part of the 40 hours of one-to-one instruction that were to be provided to the child each week. With regard to petitioners’ second issue, the hearing officer found that the child’s IEP needed to be clarified with respect to the use of assistive technology materials, and that a list of necessary materials should have been prepared and the supplies obtained prior to the start of the school year to obviate the parents’ need to buy the supplies for their son. She also found that petitioners should have been promptly reimbursed for their supply purchases. The third issue petitioners raised involved the length of their son’s educational program. The hearing officer found that the child was entitled to receive a 50-week program pursuant to his IEP for the 1997-98 school year. She agreed with the CSE chairperson’s assertion at the hearing that the 50-week period started in September 1997.

        Petitioners contend that the hearing officer’s decision failed to address the issues that they had raised. They also contend that the decision appears to have been based upon an incomplete review of the record that was before the original hearing officer. Petitioners request that I direct the hearing officer to reconvene the hearing to allow the record to be supplemented, with the direction that she reach a decision on all presented issues, or in the alternative order a new hearing before a different hearing officer.

        I agree with petitioners that the hearing officer addressed a number of issues in her decision that had not been presented for her to determine. However, neither party has appealed from her specific findings about the child’s IEP, and I do not review those findings (34 CFR 300.510[a]). I will consider petitioners’ assertion that the hearing officer failed to determine the issues that had been presented to her. In doing so, I must note that this appeal was commenced in December 2000, well after the school year in question.

        Petitioners’ primary complaint is that respondent failed to provide their son with the amount of instructional service that he was to have received pursuant to his IEP for the 1997-98 school year. During the 1997-98 school year, the number of teaching assistants working with the child and the number of hours each assistant worked varied each week. Holidays, school recesses, and staffing difficulties usually prevented respondent from providing the 40 hours a week of a one-to-one teaching assistant. However, respondent asserted that it was flexible in allowing the teaching assistants to make up hours (Transcript pp. 16-17). On a few occasions the child received more than 40 hours of service a week (Exhibit P-31). Respondent’s assistant coordinator for special education acknowledged at the hearing that the school district did not have a plan in place to address the absences of teaching assistants for petitioners’ son (Transcript p. 96). She testified that it was not possible to have a substitute teaching assistant work with the child when a regular teaching assistant was absent (Transcript pp. 96-97). Respondent also argued that it made diligent efforts to obtain and retain teaching assistants by advertising in a local newspaper and contacting local colleges (Transcript pp. 16-17).

        While respondent conceded at the hearing that it had not provided all of the ABA instruction the child was entitled to receive, it did not agree with petitioners about the number of hours of instruction to be made up. Respondent asserted that the time needed to train teaching assistants to provide ABA instruction was included in the 40 hours of one-to-one instruction the child was to receive each week (Exhibit P-32). Petitioners argued that the training of new teaching assistants should not be counted as part of the 40 hours a week (Transcript pp. 15-16 and 620). I agree with petitioners that the time needed to train staff to provide services to the child should not have been included in the 40 hours of one-to-one instruction the child was to receive each week. The record indicates that respondent encountered a number of difficulties in obtaining and retaining the services of qualified individuals to provide services to petitioners’ son. While I am aware of those difficulties, I must point out that respondent also needs to arrange for qualified substitute service providers in the event that regular service providers are absent (Application of a Child with a Disability, Appeal No. 95-54).

        The record does not afford a basis for me to determine how many hours of IEP mandated instruction were not provided to the child during the 1997-98 school year. A further hearing on this issue would unduly delay its resolution. I will direct the parties to resolve this issue through their attorneys in a manner that is consistent with this decision. Having ascertained the number of hours of missed instruction, they should reconvene the CSE to consider the child’s present needs and educational program, and recommend appropriate additional services to make up for the missed instruction (Wenger v. Canastota CSD, 979 F.Supp. 147, aff’d, 208 F.3rd 204 [2d Cir. 2000]).

        Petitioners’ second issue concerned the expenses they incurred in providing their son with assistive technology materials. While it is not necessary to list every book or minor item that will be used during the school year on the IEP, the CSE should include the specific assistive technology devices that will be used during the year on the IEP. If a disagreement arises during the year about the need for additional equipment, the matter should be referred to the CSE. I agree with the hearing officer that petitioners should have been reimbursed for those items that they purchased about which there is no dispute. They are not aggrieved by her determination on that point, nor do they indicate in their petition what, if any, expenses have not been reimbursed.

        Petitioners’ third issue involved the length of their son’s educational program, and more specifically, when it began. As noted above, the child’s IEP indicated that his instructional program was to be for 50 weeks (Exhibit SD-1). The notice of recommendation sent to petitioners also indicated a 50-week program (SD-9). At the hearing, the CSE chairperson acknowledged that the child’s program was to be provided for 50 weeks, and that the school year for extended school year students starts on July 1 (Transcript p. 411). Nevertheless, she asserted that this student’s 50-week program began in September 1997 (Transcript p. 417). I note that the child’s IEP for the 1997-98 school year indicates a projected service date of September 3, 1997. In his opening statement, petitioner’s attorney asserted that the school year began in September, which is the same position adopted by the hearing officer in her decision. I find that petitioners are not aggrieved by her finding. I further find that petitioners had ample opportunity at the hearing to articulate why the starting date was significant, and that they failed to do so.

        Petitioners contend that one of the issues that the hearing officer failed to address was their claim that respondent was violating the pendency provisions of federal and state law. The issue was not raised until after the 1997-98 school year had been concluded, and seems to largely involve the termination of one individual’s services in the summer of 1998. I find that it is beyond the scope of this proceeding. By agreement, the matter of the 1998-99 school year is still to be heard by the hearing officer. This issue should be raised in that proceeding.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 calendar days after the date of this decision, the parties shall determine how many hours of services were missed and not made up during the 1997-98 school year, and respondent’s CSE shall recommend how those services should be made up.