01-052

        Petitioners appeal from an impartial hearing officer's decision which denied their request for tuition reimbursement for the cost of their son's tuition at the New York League for Early Learning's STAR Program (STAR Program) during the 2000-01 school year, and for the cost of his applied behavioral analysis (ABA) instruction provided at home during that school year. The hearing officer denied petitioners' request despite having found that respondent failed to prove the appropriateness of the program recommended by its Committee on Special Education (CSE). Petitioners also appeal from the hearing officer's failure to determine their son's pendency placement. The appeal must be dismissed.

        Preliminarily, I note that respondent requested and received an extension of time to December 21, 2001 to answer the petition. However, it did not serve its answer until January 10, 2002. Although I may excuse a respondent's delay in serving an answer upon a showing of good cause for the delay, respondent has offered no explanation for its delay, nor has it demonstrated good cause. Therefore, I have not accepted or considered respondent's answer to the petition (Application of a Child with a Disability, Appeal No. 94-15).

        State regulation provides that if an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the State Review Officer (8 NYCRR 279.3). A decision of the State Review Officer was annulled by the New York Supreme Court because the decision was based on an independent review of the record, rather than the allegations in an unanswered petition (Arlington Cent. School Dist. v. State Review Officer of the New York State Educ. Dep't, 185 Misc. 2d 560 [2000]). However, that decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 C.F.R. § 300.510[b][2][i]), and to make an independent decision (20 U.S.C. § 1415[g]). The facts in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioners' son was six years old and was attending the STAR Program when the hearing began in October 2000. He began receiving services at the Francis of Paola Infants and Toddlers (Francis of Paola) program in 1996 (Hearing Officer's Exhibit III). In 1997, Francis of Paola referred the child to the Committee on Preschool Special Education (CPSE) of Community School District (CSD) 22. The CPSE classified the child as a preschool child with a disability in August 1997, and in September 1997, he began receiving special education itinerant teacher (SEIT) services and related services at a regular education preschool. The CPSE increased the child's services in November 1997. In February 1998, the child was reportedly diagnosed as having a pervasive developmental disorder (Exhibit 2). In March 1998, his SEIT services were increased and home ABA instruction was added to his program (Hearing Officer's Exhibit III). At an annual review in August 1998, the CPSE increased the child's SEIT services to 27.5 hours per week. The child began receiving the increased level of services in September at a regular education preschool where he remained for the 1998-99 school year (Exhibit 4).

        In May 1999, respondent's CSE met to develop a kindergarten program for him for the 1999-2000 school year (Exhibit 6). The CSE classified the child as autistic and recommended a Modified Instructional Services - IV (MIS-IV) program for him (Hearing Officer Exhibit III). It also recommended that he receive the related services of speech/language therapy, occupational therapy, and physical therapy. Petitioners disagreed with the recommended program and asked the CSE to review its recommendation. In July 1999 after reviewing private psychological and neurodevelopmental evaluations, the CSE recommended a Specialized Instructional Environment - III (SIE-III) program for the child. The parents were issued a "Nickerson Letter" authorizing them to place their son in an approved private school for children with disabilities (Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. January 5, 1982]). Because they were unable to find an approved private school for children with disabilities for their son, they enrolled him in a prekindergarten integrated program at the Kings Bay YM-YWHA (Kings Bay Y), and arranged for ABA instruction to be provided at school and at home for that school year (Exhibit 6). They also requested an impartial hearing (Exhibit 1).

        The hearing in that matter began in October 1999. On October 29, 1999, the hearing officer entered an interim order determining that the child should receive 27 1/2 hours of SEIT per week during the pendency of the proceeding, and that the parents should be reimbursed for such services up to 27 1/2 hours per week (Hearing Officer's Exhibit I). At a hearing held on December 16, 1999, the hearing officer was advised that the school district had failed to comply with his interim order. He reiterated his interim order at the December 16 hearing and it was reduced to writing in a Statement of Agreement and Interim Order dated February 1, 2000. I note that the hearing challenging the 1999-2000 program did not conclude until May 2001, after the hearing in this appeal concluded (Hearing Officer's Exhibit VI).

        The CSE began conducting evaluations for the child's annual review in March 2000. Progress reports were prepared by the child's related service providers. The speech/language therapist noted that the child began receiving individual speech/language services 3 times per week for 30 minutes in December 1999, and had made steady gains in the acquisition of receptive, expressive and pragmatic language skills (Exhibit 10). She further noted that during structured tasks, the child followed directions and took turns appropriately, but he did not readily engage in conversation or respond to prompts to converse during unstructured tasks. She recommended the continuation of speech/language services. The physical therapist indicated that the child began receiving individual physical therapy twice per week for 30 minutes in October 1999 to address low muscle tone and delay in gross motor skills. She reported that although he had improved his trunk control, endurance and ability to attend to play activity, his gross motor skills were more consistent with those of younger children (Exhibit 11). She recommended that he continue to receive physical therapy. The occupational therapist indicated that child had received 30 minutes of individual occupational therapy twice per week since October 1999 (Exhibit 12). She reported that he demonstrated delays in sustained attention and graphomotor skills, and needed to work on improving his attention span, grasping and manipulation skills, and persistence with challenging tasks. The occupational therapist recommended that the duration of the child's therapy sessions increase to 45 minutes.

        In an educational evaluation conducted on April 4, 2000, the evaluator reported that the child was attending an integrated prekindergarten program with a student: staff ratio of 20:1:1 (Exhibit 6). She noted that the child's parents had arranged for their son to receive ABA instruction at school and at home. The educational evaluator reported that the child was distractible and unfocused for much of the assessment, and that his eye contact was sporadic and fleeting. The child was assessed using the Revised Brigance Diagnostic Inventory of Early Development. While he exhibited some readiness or pre-academic skills, he was unable to recite the alphabet and did not have one-to-one identification skills. The educational evaluator noted that it was difficult to assess the child's directional, positional and quantitative concepts because the child had difficulty focusing when too many stimuli were on the page. In an informal assessment of his graphomotor skills, the evaluator noted that the child was able to hold a pencil independently and draw lines, but was unable to write his name. She noted some improvement in both expressive and receptive language and pre-academic skills since his last evaluation in March 1999.

        Classroom observations were conducted on April 3 and 4, 2000 (Exhibits 7 and 8). The child's teacher advised both observers that the child did not interact with his peers, and that he required one-to-one assistance on a full time basis.

        On April 10, 2000, the child's ABA provider indicated that he was learning calendar skills, and recognizing and writing numbers (Exhibit 6). She noted that the child's language ability consisted of four to five-word sentences describing his needs and wants. She further noted that socially, the child required some prompting to interact with one or two peers at a time, though he did engage in parallel play. While he worked better in small groups, he required some physical and verbal prompts to attend to the work being presented. The ABA provider noted that the child followed directions and would begin an activity when he heard the teacher's instructions. She indicated that the child was improving in many areas, especially socially while interacting with peers and adults. She also noted improvement in his cognitive and language abilities.

        In a psychological evaluation conducted on May 8, 2000, a school psychologist noted that the child's direct eye contact and social relatedness remained limited (Exhibit 2). He was able to follow specific directives for as long as ten minutes during the initial phases of the evaluation before becoming unfocused and resistant. With the assistance of his ABA provider, he was able to continue with varying degrees of effort for approximately 45 minutes until the test was completed. The child expressed himself in phrases and sentences of up to six words, with poor inflection, and some jargon and unrecognizable words interspersed. His receptive language was concrete, and given modest variation, he became confused.

        On the Stanford Binet Intelligence Scale - 4th Edition, the child achieved a partial composite score of 56, with domain scores ranging from the mildly retarded level to the beginning of the borderline level. The psychologist indicated that a full composite score could not be computed because the child did not appear to understand how to proceed with several tasks. Although the child's limited attention span and limited task involvement made it difficult to ascertain whether the test results were indicative of his ability and potential, the psychologist noted that when tested in June 1999, the child had achieved cognitive scores within the mildly deficient range which were consistent with previous findings. Additionally, the psychologist reported that the child had significant deficits in his graphomotor and visual motor skills. On the Vineland Adaptive Behavior Scales, with the mother serving as the informant, significant deficits were noted in most areas of the child's development, especially in the socialization domain.

        The CSE met in May 2000 to develop the child's individualized education program (IEP) (Exhibit 25). It recommended that the child be placed in a modified instructional services-I (MIS-I) integrated program, with a crisis management paraprofessional and the related services of speech/language therapy, occupational therapy and physical therapy. It amended the child’s IEP in June 2000 to limit the child's transportation time to 30 minutes. On August 11, 2000, the parents requested an impartial hearing challenging the recommended program on procedural and substantive grounds. They requested funding of or reimbursement for the cost of their son's education at the STAR Program and for his home ABA instruction for the generalization of skills. Additionally, they requested a pendency determination. The child began attending the STAR Program in September 2000, and his parents arranged for nine hours of home ABA instruction per week for the 2000-01 school year.

        The hearing began on October 3, 2000. It was held on various dates, concluding on February 12, 2001. The hearing officer rendered her decision on June 13, 2001. She noted that neither party pursued the pendency issue at the hearing, and that it was not raised until three months after the conclusion of the hearing. She found that there was no need to determine pendency because she had made a final determination for the 2000-01 school year. The hearing officer further found that it was undisputed that the May 22, 2000 IEP was flawed because the CSE did not have all of its required members when it prepared the IEP. As a result, she found that the Board of Education had failed to demonstrate the appropriateness of the program that the CSE had recommended. She also found that the parents had not met their burden of demonstrating the appropriateness of the program they obtained for their son. She directed the CSE to reconvene to determine the amount of ABA instruction that the child required, and to recommend an appropriate program based upon that finding. Noting that the evidence demonstrated that the ratio at the STAR Program was more appropriate for the child than the ratio at the Board of Education's recommended program, the hearing officer suggested that the CSE consider a more appropriate placement.

        The parents appeal from the hearing officer's decision on several grounds. They claim that the hearing officer erred in failing to address the pendency issue and in her finding that they had not demonstrated the appropriateness of the program they obtained for their son. I will address the pendency issue first.

        The pendency provisions of federal and state law require that unless the state or local educational agency and the parents otherwise agree, a child remain in his then current educational placement during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; N.Y. Educ. Law § 4404[4]). A child's pendency placement is his or her then current placement as of the moment when a due process proceeding is commenced. The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). A determination as to a child’s pendency placement is entirely independent of a determination as to the appropriateness of the student's placement (Murphy v. Arlington Central School Dist., 86 F. Supp. 2d 354 [S.D. N.Y. 2000]).

        In their August 2000 letter seeking an impartial hearing for the 2000-01 school year, petitioners requested that the hearing officer make a pendency determination. As noted above, a pendency determination had been made in October 1999 by the hearing officer in the prior proceeding involving the 1999-2000 school year. He determined that the Board of Education had to provide 27 1/2 hours of SEIT services per week until the final determination of the hearing, and he ordered that the parents be reimbursed for such services up to 27 1/2 hours per week. At the hearing in the prior proceeding on May 10, 2000, the hearing officer apparently discussed the extent of his jurisdiction and entered certain relief. I note that the transcript from that hearing is not part of the record in this appeal. However, the issues raised at the hearing for the 1999-2000 school year had not been finally determined when the hearing officer in this proceeding was asked to make a pendency determination. I find that the hearing officer in the current proceeding did not err in declining to make a pendency placement determination because the parties were still bound by the hearing officer's pendency determination in the prior proceeding.

        Petitioners seek tuition reimbursement for the cost of the STAR Program and for the costs they incurred in providing home ABA instruction to their son. 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 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). 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 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        With respect to the first criterion for an award of tuition reimbursement, the hearing officer found that respondent failed to meet its burden of proof because the CSE which developed the child's IEP did not include all of its required members. Respondent has not cross-appealed from that finding. Therefore, I find that petitioners have met the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the student's parents bear the burden of proof with regard to the appropriateness of the services they obtained for their child (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet their burden, petitioners must show that the private school offered an educational program that met the student's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        Petitioners assert that the hearing officer erred by imposing a "clear and convincing" standard upon them in determining whether they had met their burden of demonstrating the appropriateness of the program they obtained for their son. They argue that the law requires only that they prove the appropriateness of the services that they obtained for their son by a preponderance of the evidence. Pursuant to the Individuals with Disabilities Education Act Amendments of 1997 (IDEA '97), any party aggrieved by the findings and decisions of a state review officer has the right to bring a civil action in any state court of competent jurisdiction or in a district court of the United States (20 U.S.C. § 1415[i]). The IDEA '97 further provides that the court shall base its decision on the preponderance of the evidence. However, the law is silent with respect to the standard of proof for impartial hearings and administrative reviews (See 20 U.S.C. §§ 1415[f] and [g]). I note that relevant state law and regulation also is silent with respect to the standard of proof for impartial hearings and administrative reviews (See N.Y. Educ. Law §§ 4404[1] and [2]; 8 NYCRR 200.5[i]).

        Although the provisions of Article Three of the New York State Administrative Procedure Act do not literally apply to impartial hearings conducted at the school district level (Matter of Richard W., 18 Ed Dept Rep 407), I have nevertheless considered them for guidance. Article Three provides that decisions in adjudicatory proceedings shall be supported by substantial evidence (N.Y. A.P.A § 306[1]). I find that the hearing officer should not have applied the "clear and convincing" standard. In any event, I must make an independent decision upon completion of my review of the record (20 U.S.C. § 1415[g]).

        Petitioners’ claim that the STAR Program coupled with home ABA instruction was an appropriate program to meet their son's needs. The actual program they obtained for their son during the 2000-01 school year consisted of the STAR Program and nine hours of ABA instruction at home. However, there is no evidence in the record demonstrating that the child benefited from the program his parents obtained. In fact, petitioners provided testimony that the ABA component of their son's program was not sufficient.

        The record shows that the supervisor of the STAR Program recommended increasing the home ABA component of the child's program because she had concerns about his progress (Transcript p. 575). She indicated that the child needed consistency and formalization of structure at home, as well as reinforcement of skills at home (Transcript pp. 563-64 and 573). The ABA provider testified that the child's oppositional and defiant behaviors at home and in school had increased while he was attending the STAR Program and receiving only nine hours of ABA instruction at home (Transcript p. 387-88). She stated that if the child's ABA hours were increased, the providers would have more control over his behaviors and would be better able to teach the parents how to address such behaviors. The testimony the two professionals who worked most closely with the child demonstrates that the ABA component of the actual program the parents obtained for their son for the 2000-01 school year was not sufficient. Additionally, I note that there is no information in the record explaining how or why addressing the child's behavior through ABA instruction at home would have addressed his behaviors at school, and in turn would have enabled the child to receive an educational benefit. In fact, there is no information in the record explaining what the home ABA instruction involved. Based upon the information before me, I find that petitioners did not meet their burden of proving that the actual program they obtained for their son met his special education needs.

        Despite claiming that the STAR Program coupled with a home ABA component is an appropriate program for their son, petitioners contend that the STAR Program is independently appropriate, for the purpose of obtaining an award of tuition reimbursement. I find that the record does not support this contention. The record shows that the child has significant deficits in the areas of socialization, language, attention and focusing, and that he requires a structured environment as well as behavioral interventions. He was placed in a class of nine students with a head teacher and two assistants at the STAR Program (Transcript p. 535). The supervisor of the STAR Program testified that the program was created to address the special needs of higher functioning children on the autistic spectrum (Transcript p. 534). She further testified that the program focused on developing independent skills and initiating interactions and responsiveness, and that it stressed the use of language and attentiveness (Transcript p. 538). She indicated that the staff taught children to initiate and interact using a hand over hand approach, by modeling responses, and by guiding and monitoring, but does not offer ABA (Transcript pp. 543-44, 576). However, apart from a small class size and close supervision, there was little information in the record demonstrating how the STAR Program would address the child's weaknesses.

        The supervisor of the STAR Program testified that the child was resistant in the classroom and noted that he performed better in a 1:1 setting outside the classroom such as speech therapy (Transcript p. 560). However, she did not indicate what strategies were used to address the child's resistance or to encourage his participation in classroom activities. Additionally, she testified that he had difficulty sustaining attention when he was not in a 1:1 setting (Transcript p. 575). Again, she did not indicate what strategies were used to address the child's attention and focusing needs. The supervisor of the STAR Program also testified about the negative behaviors the child was exhibiting (Transcript p. 576), yet there is no indication in the record what behavioral strategies were used or whether a behavioral intervention plan was in place. Based upon the information before me, I am unable to find that the STAR Program met the student's special education needs. Having found that petitioners have failed to demonstrate the appropriateness of the program they obtained for their son, it is not necessary that I consider whether the equities support their claim for tuition reimbursement.

        I have considered petitioners' remaining claims, which I find to be without merit.

THE APPEAL IS DISMISSED.