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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Syosset Central School District


Long Island Advocates, Inc., attorney for petitioners, Rebecca Katz-White, Esq., of counsel

Vanessa M. Sheehan, Esq., attorney for respondent, Randy P. Glasser, Esq., of counsel


          Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order requiring respondent to provide one hour a day of Applied Behavioral Analysis (ABA) instruction for their son at home in addition to the child’s preschool program at the Variety Child Learning Center (Variety) during the 2000-01 school year. The appeal must be dismissed.

        Petitioners include as Exhibit B to their petition the child’s April 21, 2001, individualized education program (IEP) progress report. Petitioners previously requested that the hearing officer accept the document into evidence. Upon respondent’s objection, the hearing officer denied the request because petitioners had not disclosed the document to respondent’s counsel at least five business days before the request that it be accepted into evidence as required by 8 NYCRR 200.5(i)(3)(ix). Petitioners assert that the document was produced during the course of the impartial hearing and argue that without it the record will be incomplete. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision if such evidence were unavailable at the time of the hearing, or if the record would be incomplete without the evidence (Application of the Board of Education of the North Salem School District, Appeal No. 00-042, Application of a Child with a Disability, Appeal No. 98-55). Although as explained below, I find that the hearing officer properly excluded the document, I also find that the record in this matter will be incomplete without the report. In the interest of fairness, I will therefore exercise my discretion and accept the proffered document as part of the record.

        Petitioners’ son was three and one-half years old at the commencement of the hearing on March 23, 2001. At that time, he was receiving center-based services from Variety including a special education class and pull-out speech/language therapy and occupational therapy. In October 2000, petitioners, at their own expense, arranged to provide the child with ABA instruction at home (one hour, twice a week) and private speech/language therapy (1:1, once a week). The home-based ABA instruction continued until mid-March 2001. The private speech/language therapy continued throughout the time of the hearing.

        There is no dispute regarding the child’s classification as a preschool student with a disability. The student was reportedly diagnosed with pervasive developmental delay (PDD)/autism at or about 14 months of age. He reportedly began receiving services from the New York State Early Intervention Program (Title II-A of the Public Health Law) at or about 22 months of age. On February 10, 2000, the child’s mother referred him to respondent’s Committee on Preschool Special Education (CPSE) to recommend an educational program for the 2000-01 school year (Exhibit A). At the time of the referral, the child was receiving center-based half-day Early Intervention (EI) services five days a week from the Little Village School (Little Village), as well as services administered at home (Exhibit C). The center-based program used the ABA approach to instruct the child, and included occupational therapy and speech therapy. The student’s EI services administered at home included speech therapy, special education, and ABA instruction.

        As part of the CPSE’s evaluation of the child’s eligibility and need for preschool special education services, Little Village conducted a number of evaluations. In an occupational therapy evaluation completed in April 2000 (Exhibit D) when the child was 30 months old, he achieved an age range of seven to eight months on the HELP Checklist. He exhibited delays in sensory processing, fine motor skills, perceptual/cognitive skills, and dressing skills. The evaluator concluded that the delays interfered with the child’s ability to participate in activities within the educational setting, and recommended that he receive individual occupational therapy twice a week during the 2000-01 school year.

        The child’s April 2000, speech/language evaluation (Exhibit E) included the Receptive-Expressive Emergent Language Scale-2 (REEL-2), and the Preschool Language Scale-3 (PLS-3) test instruments. The child’s REEL-2 and PLS-3 performance showed both expressive and receptive language skill delays at levels greater than 33 percent. According to the REEL-2, the 30-month-old child showed a receptive language age of between seven and eight months. The child did not score high enough on the PLS-3 auditory comprehension subtest to establish an age-equivalence in receptive language. With respect to his expressive language skills, the PLS-3 indicated the child was at the 11-month level, which was less than the first percentile. The REEL-2 indicated expressive language scores between six and seven months. The evaluator noted that the child’s attending skills were short, that he had limited eye contact, and that he did not respond to his name. The evaluator recommended a language based preschool and a total communication approach to speech/language development incorporating manual signs, verbalizations, and pictures. The evaluator also recommended that the child receive individual speech/language services three times a week for 30 minutes each.

        A psychologist who evaluated the child in April 2000 reported that his overall development was significantly delayed. Petitioners’ son, who was 31 months old at the time of the evaluation, obtained a mental development index of less than 50 and a measured age equivalent of 14 months on the Bayley Scales of Infant Development-2. Based on parent reporting, the child received a standard score (SS) of 65 on the Vineland Adaptive Behavior Scales, indicating that his adaptive behavior was consistent with his developmental level. The evaluator also reported that the child’s daily living skills were measured at 14 months (SS 61), his socialization skills at 13 months (SS 67), and his motor skills at a relatively higher level of 23 months (SS 81). The evaluator recommended a center-based special education program for the child (Exhibit F).

        When it met on May 5, 2000, respondent’s CPSE classified the child as a preschool student with a disability. It recommended that he be enrolled on a 12-month basis in a full day center-based pre-school special education class with a student to staff ratio of 8:1+2. The CPSE also recommended, and the resulting IEP provided (Exhibit H), that the child receive occupational therapy (for 30 minutes a day, twice a week) and speech/language therapy (for 30 minutes a day, five times a week) on a pull-out basis. Consistent with 8 NYCRR 200.13(d), the IEP also provided for parent counseling once a week for an hour. Petitioners, who attended the CPSE meeting, agreed with the recommended classification, the proposed center-based program, and the related services. However, they requested that the child also receive supplemental ABA instruction administered at home (Transcript pp. 45, 78, 605). Believing that the requested service was unnecessary, the CPSE did not recommend it.

        Petitioners subsequently decided to transition the child into the recommended center-based program at the beginning of the fall 2000 semester, and advised the CPSE that they had selected the Variety Preschool Workshop, subsequently renamed Variety Child Learning Center, (Variety) to provide that program. In early August, petitioners again raised the issue of receiving additional ABA instruction administered at home. They requested an impartial hearing to determine that question in late August. The parties resolved the request for a hearing by a mediated agreement that the CPSE chairperson would participate in the staff planning and meetings at Variety relative to the child (Transcript pp. 50-51).

        The child enrolled at Variety on or about September 6, 2000. Variety changed his classroom assignment two weeks later to place the child with a group of students who worked better together and to provide him with an increased level of staff attention (Transcript pp. 51-52). The eight other children in the class were all considered to be PDD/autistic (Transcript pp. 207-08). Respondent obtained a waiver for the class size. In October and November 2000, Variety held team meetings to discuss the student’s progress, to coordinate the provision of his pull out services, and to discuss how its staff could work with the petitioners to assist the child’s development at home. As part of the mediation agreement, respondent’s CPSE chairperson attended the meetings, as did one or both of the petitioners. Petitioners restated their belief that the child’s program should be supplemented with ABA instruction administered at home. However, the CPSE chairperson and Variety staff felt that the student was making progress. Petitioners subsequently requested a CPSE meeting to discuss supplemental ABA home-based instruction for the child.

        Respondent’s CPSE met with petitioners on November 22, 2000. They requested that their son be provided with an hour a day of ABA instruction at home as a supplement to his full day special education program with related services at Variety. The CPSE concluded that the child’s current educational program was appropriate to meet his educational needs and did not approve the supplemental ABA instruction (Exhibit I at p. 23). The IEP from that meeting (Exhibit I) mirrored in relevant respects the May 2000 IEP.

        Petitioners thereafter requested an impartial hearing. The impartial hearing commenced on March 23, 2001, continued on March 30, April 4, 17, and 24, and concluded on May 7, 2001. The hearing officer rendered his decision on June 18, 2001. He concluded that respondent had met its burden of proof to show that it was providing the child a free appropriate public education (FAPE) in the least restrictive environment (LRE). The hearing officer found that the child’s placement at Variety met LRE considerations, that the IEP was appropriately developed and reasonably calculated to enable the child to receive educational benefits, and that the child’s educational needs were being appropriately met. Contrary to petitioners’ argument, the hearing officer concluded that the child had made more than minimal, random, and inconsistent educational progress at Variety.

        Petitioners appeal from the hearing officer’s decision on both procedural and substantive grounds. Petitioners contend that the hearing officer improperly declined to admit the April 2001, IEP progress report into evidence. They challenge his determination that respondent had met its burden of proving that it was providing a FAPE to their son, and assert that the CPSE did not comply with procedural requirements in preparing the child’s IEP and that it failed to recommend an adequate amount of special education for the child.

        I find that the hearing officer properly excluded the child’s April 2001, IEP progress report. The hearing officer excluded this document from the record based on the "five-day rule" set out at 8 NYCRR 200.5[I][3][ix] and 34 CFR 300.509[a][3] (Transcript pp. 835-36). These regulations provide that each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed at least five business days before the hearing. Petitioners did not provide the requisite notice to respondent at least five business days before attempting to introduce the progress report into evidence at the hearing on May 7, 2001. Respondent objected to the inclusion of the report into the record because of that (Transcript pp. 835-36). Since respondent objected to the document on the basis of the five-day rule, the hearing officer was clearly authorized to bar the introduction of the document into evidence. As noted above, I have nevertheless considered the report.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CPSE (Application of a Child with a Disability, Appeal No. 97-30, Application of a Child with a Disability, Appeal No. 96-58, Application of a Child with a Disability, Appeal No. 96-33). 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 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550, 8 NYCRR 200.16[h][1], 200.6[a][1]). 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).

        Petitioners contend that respondent failed to notify them of the persons who would be in attendance at the CPSE meetings that were held on May 5 and November 22, 2000. The notices relating to the May and November 2000 CPSE meetings did not include the name and title of those expected to attend those meetings (Exhibits H, p. 11, I, p. 20). I agree with petitioners that respondent’s notices did not comply with the applicable state regulations at 8 NYCRR 200.16[g][4], 200.5[c][1], [2][i]. However, there is no showing that the violation caused the student to lose educational opportunity. Respondent’s violation of this procedural regulation does not in and of itself require a finding that it should be required to provide petitioners’ child with additional ABA instruction at home (Application of a Child with a Disability, Appeal No. 01-046). The hearing officer correctly directed respondent to include the names and titles of those who will be participating in CPSE meetings in the notices to the parents for such meetings.

        Petitioners also contend that the hearing officer erred in upholding the CPSE’s determination not to recommend supplemental services at home for their son because the CPSE failed to discuss the child’s proposed IEP goals at the May 2000 meeting, and did not discuss his progress towards achieving them at the November 2000 meeting. They assert that the CPSE therefore lacked a basis for determining the level of services necessary to enable their child to achieve the goals. I must note that petitioners do not object to the IEP’s description of their son’s needs and levels of performance. The parents did not object to the their son’s IEP goals and objectives which were available to them at the CPSE meetings in May and November (Transcript pp. 47, 81, 117-118, 125, 851-852). At the hearing in this proceeding, the child’s father was asked whether he had any objection to the goals at the May and November CPSE meetings. He testified that he did not have any objection to them (Transcript pp. 732-734). I find that there is no dispute about the appropriateness of the goals for the child.

        Petitioners do not object to the center-based services that were provided to their son during the 2000-01 school year, but they assert that the child required additional service in order to receive a FAPE. Whether such additional services should be provided depends on whether the child needed the services in order to obtain a meaningful educational benefit from the program provided to him by respondent (Application of a Child with a Disability, Appeal No. 98-56). In meeting its burden of proof about the appropriateness, respondent must show that the educational benefits provided to the disabled child by its program are more than "trivial" (Mrs. B v. Milford Board of Education, 103 F.3d 114, 1120 [2nd Cir. 1997], citing Rowleysupra, 458 U.S. at 192, 202) and are "meaningful" "in light of the limitations imposed by the student’s disability" (Id.).

        I concur with the hearing officer’s finding that the child made meaningful educational progress in the 2000-01 school year in respondent's program. Special educator testimony at the end of March 2001 indicated that the child no longer tantrumed and became defensive when he entered the school, his special education classroom, or the location of his pull out services. He was happier and more acclimated to the educational environment, his eye contact improved, he had improved his ability to follow the program’s routines including playtime, and he increased his participation and attentiveness during group and individual classroom activities (Transcript pp. 299-300).

        The child’s speech and occupational therapists testified that as of March and April 2001, the child’s self-stimulatory behavior decreased, his tactile defensiveness lessened, he made his needs known, his ability to transition improved, and in general he became a part of their programs and made progress in them (Transcript pp. 405-24, 539-44, compare Exhibits BB and Z, Exhibits T and S). Although the child experienced some regression because of the mid April 2001 school vacation, he made progress upon his return to school (Transcript pp. 839-840).

        Variety uses a Parent/Professional Preschool Performance Profile to determine where children are functioning in six developmental skill areas: classroom adjustment, self-help, language development, social development, motor development, and cognitive development. Variety assessed the child in October 2000 (Exhibit M) and in February 2001 (Exhibit N). A review of the assessments demonstrates that the child showed positive change in 88 of the 458 items relevant to these developmental skill areas. This is an increase in 20 percent of the measured developmental indices. The child's teacher testified to numerous examples of his assessment-identified improved performance levels (Transcript pp. 232-65). For example, she testified that the child expressed less anxiety separating from staff working with him, and his attention span and focus increased from hardly any at all to between five and ten minutes. He exhibited significantly less tantrum behavior, and his episodes of crying decreased from numerous times a day to less than daily. The child was now able to hold and drink from a cup, and he pointed to, touched, or asked for food that he wanted. He recognized his coat. He paid greater attention to change in voice tones and facial expressions, and more often appropriately used "hi" and "bye". He was aware of, and might respond to, his name. He was sometimes able to use single words to label items or persons. He engaged in less preservative behavior such as singing, banging, or spinning. He was more able to differentiate between different adult persons, and he was able to identify a picture of his mother.

        The child also made progress in attaining IEP short-term objectives. In November 2000, the child’s IEP progress report (Exhibit P) reported a "no" for 20 of the objectives, a "sometimes" for 24, and indicated mastery of none. By the time of the February 2001, progress report, the student had mastered four objectives and the number of objectives where "no" progress was reported had fallen to 16 (Id.). The April 21, 2001 IEP progress report (petition at Exhibit A) showed additional progress. By that date, the number of objectives mastered had increased by 250 percent to 10, the number where no progress was reported had declined to 15, and the number where progress was reported as "sometimes" had fallen to 19. Contrary to petitioners’ contention, in light of the severity of this child’s disability, this is meaningful and not minimal progress. In reviewing the child’s progress, I also note that while he did not attain some of what had been targeted, he did master some of the objectives prior to the time anticipated in the IEP.

        Petitioners assert that the hearing officer did not consider the extent to which the ABA home-based instruction they provided to the child during the October 2000 through mid March 2001 period contributed to their son’s performance in school. However, I find that it is not possible on this record to attribute any specific amount of progress to the ABA training provided by the parents. Petitioners did not provide any record testimony or evidence from the teacher who provided the child with the home-based ABA instruction during this period. Further, although petitioners testified that the home-based teacher prepared written materials relative to the child’s progress (Transcript pp. 679-80), petitioners did not make that information a part of the record. Petitioners did not keep the child’s teacher fully and directly informed as to what specific and particular ABA instruction they provided the child and the material prepared by the home ABA instructor was not given to Variety (Transcript pp. 679-80, 832-33). An attempt by the hearing officer to determine the extent to which the child’s progress at Variety was the result of his home based ABA instruction would be speculation, and I find that the hearing officer cannot be faulted for not doing so (Application of a Child with a Disability, Appeal No. 96-58).

        Petitioners’ appeal is based on the importance they attach to home services. Variety’s educational program is founded on a "home/school collaborative model" and includes the development of a program for the child at home to facilitate the generalization of improvement at school into the home environment (Exhibit K, pp. 6-20, Transcript pp. 161-62). Based on outcomes research, in 1997, the New York State Education Department validated Variety’s collaboration program as a "New York State Sharing Success Validated Program" (Exhibit K, pp. 13, 18, 19). Because of two family emergencies, at the time of the hearing, petitioners had not yet met with Variety staff at their home to develop and implement a home program for the child (Transcript pp. 490-93, 661-62). For the sake of this child, it is very important that petitioners work with respondent and Variety staff to develop and implement an effective home program for him.

        I find that the educational program under review and challenged by petitioners is "reasonably calculated to enable (the child) to receive educational benefits" (Rowleysupra, 458 U.S. at 206-07, Walczak v. Florida Union Free School District, 142 F.3d 119, 129 [2nd Cir. 1998]).


Topical Index

CSE ProcessMeeting Notice
Educational PlacementExtended Day/Home-Based/ Residential Services
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues