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
Keane & Beane, P.C., attorney for respondent, Frances M. Pantaleo, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision denying their request that the Board of Education be required to provide 40 hours per week of applied behavioral analysis (ABA) training to their daughter during the 1999-2000 school year. The Board of Education cross-appeals from the hearing officer’s finding that the education program that respondent’s Committee on Special Education (CSE) had recommended for the child was inappropriate. The appeal must be dismissed. The cross-appeal must be sustained.
Petitioners’ daughter was seven years old by the end of the hearing in this proceeding. She was first evaluated for a possible diagnosis of autism in the fall of 1996 (Exhibit SD-1). The child was ultimately diagnosed with autism, and began receiving ABA training in July 1997, when she was a preschooler (Exhibits SD-9, SD-23). She was subsequently classified as autistic by respondent’s CSE in July 1998, and there is no dispute about her classification.
A psychologist who evaluated the child on July 7, 1998 reported that she had scored in the "severely autistic" range on the Childhood Autistic Rating Scale (CARS). He diagnosed the child with Autistic Disorder, Mental Retardation (Severity Unspecified) and Hypotonia. He noted that she was receiving approximately 20 hours of ABA services each week, but he did not comment further regarding the number of ABA hours (Exhibit SD-23).
On July 28, 1998, the CSE recommended that the student's program for the 1998-99 school year include 20 1/2 hours of individual ABA services each week, individual occupational therapy three times per week for 30 minutes and individual speech/language therapy four times per week for 45 minutes. Respondent contracted with the Center for Autism & Related Disorders (CARD) to provide the recommended ABA services. On September 10, 1998, the CSE revised the child’s individualized education program (IEP) to increase her individual ABA services to 25 1/2 hours per week. Speech/language therapy was also increased to six individual 30-minute sessions per week. The CSE noted that the regional director of CARD was scheduling biweekly meetings with the staff and family (Exhibit SD-33).
In November 1998, CARD reported that the child was working on expressive and receptive labeling, identifying letters and numbers, matching objects to pictures and verbal imitation. In addition, a program was outlined for decreasing inappropriate behaviors such as hand clapping and teeth grinding that the child exhibited (SD-41). By March 1999, the child’s CARD therapist reported progress in expressive labeling, identification of letters and numbers, and matching pictures to objects. Hand clapping and teeth grinding continued to be described as high frequency behaviors (Exhibit SD-48).
At a CSE meeting on March 8, 1999, the child’s mother requested that the child’s ABA training be increased to 40 hours per week. The mother and the regional director of CARD agreed to provide information about ABA training. The CSE recommended a trial of mainstreaming during lunch and play time, and agreed to reconvene in a few weeks to review the child’s progress (Exhibit SD-49).
On June 15, 1999, the CARD regional administrator reported the child had made progress in compliance, attending, receptive and expressive language, play skills and self-help skills. However, petitioners’ daughter needed assistance with occupying herself independently, decreasing her perseveration, increasing her compliance, generalizing skills, and developing self-help and play skills. The CARD evaluator recommended a three-hour parent training and one-hour biweekly home visits (Exhibit SD-57). In a June 16, 1999 memo, the CARD service provider described what had been done to broaden the child’s social skills. She indicated that the child had participated appropriately with peers during play periods in the classroom, but had on occasion refused to leave that classroom to return to her own classroom. She did not participate appropriately in the cafeteria, which the provider attributed to the fact that the child had the potential to become overly stimulated in the presence of a large group of fellow students (Exhibit SD-58).
The child’s occupational therapist reported on June 18, 1999, that the child had made fair progress during the school year, and should continue to receive therapy throughout the summer and during the 1999-2000 school year (Exhibit SD-59). The speech/language evaluator reported that the child had made gains in learned vocabulary, improved her receptive language and improved her oral motor skills. Despite the gains, the child was not yet using language as a true communication vehicle. The evaluator recommended continuation of intensive speech services and a program that included peers. She recommended that the child participate in small group therapy sessions (Exhibit SD-60).
The CSE prepared the child’s IEP for the summer of 1999 on June 24, 1999. It recommended that the child receive 25 1/2 hours of individual ABA per week, 30 minutes of individual occupational therapy three times per week, 60 minutes of individual speech/language therapy three times per week, and 60 minutes of speech/language therapy in a group three times per week. The CSE meeting minutes indicate that the speech/language therapist believed that a program with peers would help to stimulate the child’s communication skills, and the school psychologist opined that the child needed increased opportunities for social interaction with peers. The parents consented to an investigation of methodologies identified in the record as "Lovaas" in order to increase opportunities for peer interaction in the fall of 1999. The CSE expressed support for the parents’ request for an increase in parent training (Exhibit SD-62). The CSE indicated that it would reconvene before school started in September to recommend the child’s program for the 1999-2000 school year.
In a June 25, 1999 progress report, the CARD ABA providers indicated that the frequency of the child’s hand flapping, clapping, gazing and non-compliant behaviors had decreased. However, her teeth grinding had increased. The report also indicated that her therapist facilitated most of the child’s interactions with peers (Exhibit SD-64).
The CSE convened on August 5, 1999 to recommend a program for the 1999-2000 school year. It recommended placement in a special class with a student : staff ratio of 8:1+1, and a full time individual aide for the child. Related services included individual speech therapy three times per week for 60 minutes and individual occupational therapy three times per week for 30 minutes. The CSE recommended that the child participate in the mainstream for music, gym, art, and lunch. The CSE meeting minutes indicate that the regional director of CARD expressed concern about the child’s lack of progress in socialization, and he stated that the child needed more opportunity to interact with others. The mother expressed disagreement with the recommendation (Exhibit SD-75).
In a letter dated August 30, 1999, the CARD regional director contacted the school district to clarify his recommendation. He opined that the child would have difficulty learning in a group situation, and that individual ABA training was an important part of the child’s program. He recognized, however, that the child needed to learn to generalize skills in social situations (Exhibit SD-124).
Five students were assigned to the proposed school district class, including petitioners’ child. The students ranged in age from 4-10 years through 6-5 years. No achievement scores were noted. All students were described as having moderate to severe speech needs and requiring moderate to intensive classroom management. Four of the students appeared to have significant social needs (Exhibit SD-121).
On September 2, 1999, petitioners requested an impartial hearing because they disagreed with their child’s recommended program. They invoked their right to have their child’s last agreed upon program implemented as her pendency placement. Petitioners suggested that their child’s program be changed to include 35-40 hours of ABA, with additional parent training. Petitioners also requested a CSE meeting to develop increased opportunities for their child to participate in social situations (Exhibits SD-81, SD-83).
In a letter dated September 8, 1999, petitioners requested home instruction for their child (Exhibit SD-85). On September 9, 1999, respondent’s attorney informed petitioners that their child would receive services pursuant to the March 8, 1999 IEP, as her pendency placement. The attorney indicated that the teaching assistant responsible for implementing the program was currently undergoing ABA training, and technical support would be provided by the Center for Educational and Emotional Development (CEED) (Exhibit SD-86). After training by CEED, district personnel provided services to the child during the 1999-2000 school year (Exhibit SD-142).
By letter dated September 13, 1999, petitioners asserted that their daughter was not receiving appropriate pendency services, and suggested that the school district contract with CARD or use CARD materials to instruct their child (Exhibit SD-99). The school district made several attempts to obtain reports from CARD (Exhibits SD-94, SD-100, SD-102, SD-103). In November 1999, CARD sent the school district its reports. The CARD regional director asked petitioners to send a log book used during summer 1999 to the district (Exhibit SD-104). In November 1999, petitioners shared with the district a report of a psychological evaluation that had been performed in the summer of 1999. The psychologist, who had previously evaluated the child in July 1998, reported that the child scored in the mildly autistic range on the CARS. He recommended that the child’s ABA training continue to be individualized, and that it be increased to about 35-40 hours per week (Exhibit SD-110).
The impartial hearing began on December 8, 1999. On January 25, 2000, petitioners asked the hearing officer for an interim decision involving their daughter’s pendency placement, contending that CARD should be providing services to the child. In a decision dated April 3, 2000, the hearing officer concluded that respondent had maintained the child’s pendency placement. The hearing officer denied petitioners’ request for an order compelling the school district to contract with CARD to provide ABA services to their child (Exhibit SD-145). Petitioners’ appeal from the hearing officer’s interim decision was dismissed on August 1, 2000 (Application of a Child with a Disability, Appeal No. 00-030).
An update of the child’s goals and objectives was completed on January 26, 2000. The child had mastered IEP goals for appropriately placing pegs in a peg board and rote counting to ten. Progress was noted with most other goals (Exhibit SD-127). The child’s midyear progress note was issued in March 2000. She maintained her achievement level in four areas. In all other areas, the child exhibited positive growth. The evaluator reported that most of the child’s goals from the CARD program were in the generalization phase, and she had achieved six months’ growth over the course of six months. The evaluator recommended that the child continue to receive ABA services, that a portion of the child’s day be spent in a small, self-contained special education class, and that consultation with a behavioral optometrist be pursued. The evaluator opined that participation in a classroom setting would provide the child with the opportunity for socialization and pragmatic language use (Exhibit SD-128).
On March 29, 2000, the child’s teaching assistant reported that petitioners’ daughter could appropriately use 107 words and 37 phrases. She was able to follow 52 one-step commands, could identify 26 animals, and could identify 10 people from pictures or sight. The teaching assistant also reported that the child had made a friend at school (Exhibit SD-132).
In May 2000, a speech/language therapist reported that the child’s oral motor skills had improved through the use of oral motor therapy. Although her language skills had improved, lengthy utterances were still difficult for her. The child could make requests for desired activities, consistently demonstrate a "yes" response and was able to follow routines and directions (Exhibit SD-138). In an evaluation administered by another therapist in that month, the child demonstrated that she could follow single step commands at the level of a two-year-old, and could follow more complex commands which were familiar to her. Her expressive vocabulary was reported to be at the level of a five-year-old child. The evaluator noted that the child demonstrated the reciprocity necessary for social exchanges, and opined that the child’s ability to relate to peers and familiar adults indicated her readiness for the classroom experience (Exhibit SD-141).
The child’s teacher reported that the child was able to follow one- and two-step directions, and her social skills had improved (Exhibit SD-137). Her teaching assistant reported that the child could appropriately use 119 words and 57 phrases. She was able to follow 52 one-step commands (many with prompting), expressively identify 29 animals and expressively identify 18 people. Spontaneous use of simple manners was noted (Exhibit SD-139). The occupational therapy report indicated that the child had progressed in fine motor skills, visual motor skills and sensory processing. The therapist noted that self-stimulatory behaviors had decreased significantly (Exhibit SD-140).
On June 23, 2000, the child’s teaching assistant reported that petitioners’ daughter was continuing to make progress in all areas except toilet training. The child’s social language skills had improved, and she was improving in making her preferences known to adults. The teaching assistant reported that the student had difficulty with compliance when expected to leave a group of children to return to individual instruction. The child was able to appropriately use 127 words and 68 phrases. She was able to follow 60 one-step commands, many with prompting (Exhibit SD-157).
The district’s consultant from CEED evaluated the child on June 25, 2000. She reported that the child’s reading and communication skills had improved, but her motor skills were significantly delayed. The child’s visual skills were also delayed. The consultant further reported that the child had demonstrated a 15 to 18 month growth in her social skills during a nine month period. She indicated that the child’s autistic-like characteristics had faded to the point that she scored just above the cut-off range for the diagnosis of autism. The consultant recommended the child be placed in a classroom setting, and opined that it could be done without compromising the child’s individual instruction (Exhibit SD-159).
The second day of the hearing took place on July 5, 2000. The hearing continued for 13 more days, concluding on January 31, 2001. The hearing officer issued his decision on May 22, 2001. He agreed with the Board of Education that petitioners’ daughter did not require more than the 25 1/2 hours of ABA training per week that the school district was providing to her. However, he found that the proposed change in the child’s program from individual instruction in a separate room to instruction in a class with an 8:1+1 student : teacher ratio was "too much too soon". He suggested that the child would require careful monitoring during a transition from individual to group instruction, and that, in preparing a new IEP for the child, the CSE should consult with the CARD regional director about the amount of group instruction the child should receive and the timing of her transition to group instruction. The hearing officer also addressed petitioners’ contentions that they had not received written notice of the August 5, 1999 CSE meeting, and that their daughter’s teaching assistant was not properly certified. He indicated that the school district should take greater effort to document its notice of meetings and should investigate the certification and supervision requirements of the child’s teaching assistant. He encouraged the school district to continue to make attempts to work with petitioners so that they could assist with their child’s learning process.
Petitioners contend that the hearing officer displayed favoritism toward the school district during the conduct of the hearing. Petitioners were initially represented by an attorney, who withdrew from the case during the hearing. Hearing officers have a responsibility to assist unrepresented parties at hearings (Application of a Child with a Handicapping Condition, Appeal No. 92-8). However, they also must conduct hearings as expeditiously as possible, and may limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-71). Having reviewed the entire record, I find that petitioners were given an ample opportunity to present their case, and that the hearing was conducted fairly.
Petitioners assert that the hearing officer intentionally failed to find the school district in violation of federal and state law. They allege that the August 5, 1999 CSE meeting was improperly convened because petitioners never received notice of the meeting, a parent member improperly attended the meeting, and the CSE improperly included a regular education teacher. They further allege that their daughter’s IEP goals and objectives were inappropriate, that they did not receive information that was given to other members of the CSE, that their child’s primary instructor was not certified, and that their child was evaluated without their consent. Petitioners seek 40 hours of ABA services for their child. Respondent cross-appeals, seeking reversal of the portions of the hearing officer’s decision pertaining to the appropriateness of the recommended program, the school district’s obligation to investigate the credentials of the child’s primary instructor, and the school district’s obligation to take greater steps to comply with applicable due process requirements. Respondent has submitted an affidavit by the child’s teaching assistant regarding her credentials.
Whenever a CSE proposes to conduct a meeting related to the development or review of a student’s IEP, the parents must receive notification in writing at least five days prior to the meeting (8 NYCRR 200.5[c]). The mother testified that she received two conflicting letters regarding the August 5, 1999 meeting. One letter described the meeting as an annual review, and the other letter pertained to her child’s summer program (Transcript p. 1834). Only the letter describing the meeting as an annual review was entered into evidence (Exhibit SD-66). The mother did attend the meeting. I agree with the hearing officer that the allegation of conflicting notices is unsubstantiated, and that petitioners were not prejudiced by the alleged non-receipt of a notice of the CSE meeting.
Petitioners assert that the CSE improperly included a parent member and a regular education teacher. In New York, CSEs must include, in addition to the student’s parent, another parent of a student with a disability residing in the school district or a neighboring school district. However, the Education Law was amended on July 20, 1999 to provide that a student’s parents could request that the additional parent member not participate in the CSE meeting (N.Y. Educ. § 4402[b][a][viii]). The statute was changed five days after the date of respondent’s notice to petitioners of the August 5, 1999 CSE meeting. On January 6, 2000, new regulations were promulgated to implement the statutory change. Notices of CSE meetings must now inform parents of their right to decline, in writing, the participation of the additional parent member (8 NYCRR 200.5[c][v]). Given the fact that the CSE meeting was held approximately two weeks after the statute was amended, I find that respondent’s failure to notify petitioners of their right to object to the parent member’s participation does not afford a reasonable basis for annulling the CSE’s recommendation at that meeting.
Petitioners assert that a regular education teacher should not have been in attendance at the August 5, 1999 meeting. The Individuals with Disabilities Education Act (IDEA) was amended in 1997 to provide that an IEP team (the CSE or its subcommittee in New York) must include at least one "regular education teacher of the child," if the child is or may be participating in the regular education environment (see also 34 C.F.R. § 300.344[a] and 8 NYCRR 200.3[a][ii]). The CSE recommended that the student’s program include participation in the mainstream for music, gym, art and lunch (Exhibit SD-75). A regular education teacher was a mandatory participant of the CSE. Petitioners did not have the right to request that the regular education teacher not participate, and nothing in the record indicates that they made such a request. I find petitioners’ contention that a regular education teacher should not have been a member of the CSE is without merit.
Petitioners assert that they did not receive the same information at the CSE meeting as did other CSE members. They are referring to a packet of information that, according to the respondent’s director of special education, was available to all members at the meeting, but was apparently not picked up by petitioners or their advocate (Exhibit SD-172). In addition, petitioners claim they were not notified of the outcome of the CSE meeting. However, the record includes a copy of the notice that was reportedly sent to them after the meeting (Exhibit SD-76). On the record presented, I am unable to find that petitioners’ rights were violated.
Petitioners assert that the individual who provided most of their daughter’s ABA training during the 1999-2000 school year did not have proper credentials. I first note that there is no specific state certificate required for someone to use ABA with a child. The individual to whom petitioners refer was initially employed by respondent as a monitor or aide. The hearing officer noted in his decision that an aide is not an instructor. An aide may perform support teaching duties under the general supervision of a certified teacher (8 NYCRR 80.33[a]). In her affidavit accompanying respondent’s answer, the individual points out that on November 15, 1999, respondent appointed her to the position of teaching assistant retroactive to September 1, 1999. She also notes that she was eligible for a temporary license as a teaching assistant and had completed the requirement for permanent licensure by the summer of 2000. A teaching assistant may, under the general supervision of a certified teacher, work with individual pupils on instructional projects. In this instance the teaching assistant worked under the supervision of the classroom teacher. She also received training in ABA from the CEED consultant, who also observed her performance in the classroom. I find petitioners’ contention that the individual did not have proper credentials to be without merit.
Petitioners assert that their child was evaluated without their consent. Respondent denies that evaluations were conducted, and petitioners did not present evidence at the hearing that evaluations were improperly conducted. I find that petitioners’ contention is without merit.
Petitioners assert that the goals and objectives contained in their child’s IEP were inappropriate. I will address petitioners’ assertion together with respondent’s assertion that it offered an appropriate program. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 Suspected of Having a Disability, Appeal No. 93-9).
I find that the evaluations performed by the CSE were appropriate given the child’s disability. I also find the goals and objectives to be appropriate. An IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student’s needs arising from his or her disability (34 CFR 300.347). Goals must be specific in order to provide sufficient guidance to a student’s teachers with respect to the CSE’s expectations for his or her performance (Application of a Child with a Disability, Appeal No. 98-14), and they must be measurable (34 CFR 300.347[a]). Finally, the IEP must identify how progress toward its goals will be measured including the "evaluative criteria, evaluation procedures, and schedules to be used to measure progress towards the annual goals" (8 NYCRR 200.4[c][iii]; 34 CFR 300.347[a][i]).
The child’s IEP included goals and objectives in the following areas: occupational therapy, basic cognitive skills, mathematics, language arts, activities of daily living, social/emotional development, and speech/language. Given the child’s disability and levels of achievement, these goals and objectives were appropriate. Petitioners assert that they are inappropriate because the child worked on goals over the summer that were essentially the same as those recommended for the 1999-2000 school year. I reject petitioners’ contention. Given that the child’s disability is autism, it is not unreasonable for her to work on the same goals and objectives over an extended period of time before mastering them.
The Board of Education must also demonstrate that the special education services recommended by its CSE would reasonably afford the child the opportunity to make meaningful educational progress. The hearing officer found that petitioners’ daughter did not require the 40 hours of 1:1 ABA per week sought by petitioners in order to make meaningful progress. I agree with the hearing officer. The record demonstrates that the child made significant progress during the 1999-2000 school year, when she was not receiving that much individual ABA training (Exhibits SD-137, 139, 157, and 159). I have considered the private psychologist’s suggestion that the child’s ABA be increased to 35-40 hours per week during the 1999-2000 school year (Exhibit SD-110). I must note that the psychologist did not explain why he believed an increase was necessary in light of his own detailed findings about her improved skills.
The Board of Education argues that the hearing officer erred in finding that the child’s placement in an 8:1+1 special education class during the 1999-2000 school year was not appropriate for her. The evidence shows that the child had progressed in her very restrictive program of individual instruction during the 1998-99 school year, but that she needed opportunities to generalize the skills that she had learned and to socialize with peers. Her limited experience in being with other children during play periods in school that year demonstrated that she was capable of profitably spending more time with peers as part of the educational process. The hearing officer’s concern for the child making a successful transition to group instruction appears to have been based in part on a generalization about autistic individuals’ ability to accept change. While I agree with the hearing officer that the child’s transition should be closely monitored, I cannot agree that the proposed program could not be successfully implemented.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s finding that respondent had failed to offer petitioners’ child a free appropriate public education during the 1999-2000 school year is hereby annulled.