01-091

       Petitioner, the Board of Education of the Three Village Central School District, appeals from an impartial hearing officer’s decision awarding respondents tuition reimbursement for the cost of their daughter’s tuition at the New England Center for Children (NECC), a private school for children with autism in Southborough, Massachusetts, for the 2000-01 school year. The appeal must be sustained.

        Respondents’ daughter was five years old and was attending NECC when the hearing began in August 2000. Born in March 1995, she is the older of twin girls, both of whom have been diagnosed as having autism. In August 1996, the child was referred to the early intervention program by her pediatrician because she was not walking and concerns were present regarding her vestibular responses, i.e. sensitivity to motion and frequent vomiting (Exhibit B). She also exhibited stereotypical rocking. The child was provided early intervention services for physical therapy and special education in her home beginning in August 1996. The special education services were eventually discontinued at the parents’ request (Exhibit D).

        During the summer of 1997, at the request of her parents, the child’s physical therapy services were discontinued, and occupational therapy services were initiated to address her fine motor and sensory processing deficits (Exhibit D). In an August 1997 speech/language evaluation, the child demonstrated significant language delays, scoring in the 6 to 7 month range for receptive language and the 5 to 6 month range for expressive language on the Receptive Expressive Emergent Language Scale–2 (Exhibit A). In September 1997, the child began attending a center based program at St. Charles Educational and Therapeutic Center (St. Charles) for three hours per day three days per week in a 12:1+1 classroom setting where she received special instruction and speech/language, physical and occupational therapy (Exhibits B, G).

        The child was evaluated at St. Charles in October 1997, when she was two years and seven months old. On the Bayley Scales of Infant Development: Mental Scale, the child achieved a mental development index of less than 50, with a corresponding age equivalent of 12 months, indicative of significantly delayed performance (Exhibit C). On the Vineland Adaptive Behavior Scales with the child’s mother serving as the informant, the child obtained an overall adaptive behavior composite of 54, which corresponds to an approximate age equivalent of 12 months, placing her in the low range of adaptive functioning.

        In December 1997, petitioner’s Committee on Preschool Education (CPSE) held a transition meeting to develop an individualized education program (IEP) for the child to transition from the early intervention program to a preschool program (August 3, 2000 Transcript pp. 34-35). The CSPE classified the child as a preschool child with a disability and, at the request of the parents, recommended that she continue to attend St. Charles (August 3, 2000 Transcript pp. 36-37). The child began attending the St. Charles program five days per week, four hours per day in a self-contained class with a ratio of 6:1+1 in January 1998 (Exhibit J). She remained in that program through the 1998-99 school year (Exhibit Z).

        The child was privately evaluated at the Department of Psychiatry and Behavioral Science’s Division of Developmental Disabilities at Stony Brook State University of New York (Stony Brook) in March 1999 (Exhibit M). She achieved an overall score of 19 on the Pre-Lingual Autism Diagnostic Observation Scale (PL-ADOS), meeting the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV) criteria for autistic disorder. The evaluators cautioned that the child’s associated cognitive, motor and broader developmental delays should be taken into account in understanding her disabilities and needs. The child engaged in babbling and jargon, but did not utter actual words during the course of the evaluation. The evaluators reported that she rarely directed her vocalizations toward others, and did not use vocalizing or gestures as a means of communication. Her reciprocal social interaction was negligible. The child rarely made eye contact, and when she did, it was fleeting. Her facial expressions were limited and she did not display a social smile. She displayed little interest in her environment, preferring to rock and to bang on toys. The child’s play behaviors consisted of visual, tactile or auditory investigation of materials. She did not play appropriately with cause and effect toys and did not demonstrate any imaginative or creative play skills. She did not exhibit any overactivity, tantrums, aggression or anxiety. No self-injurious or ritualistic behaviors were noted.

        On March 26, 1999, the CPSE met to develop the child’s IEP for the summer of 1999 and the 1999-2000 school year (Exhibit AA). At the meeting, the Young Autism Program, a program specifically designed for children with autism, was discussed as a placement option, but the child’s mother did not wish to change her daughter’s placement (August 3, 2000 Transcript pp. 43-44). Therefore, the CPSE recommended that the child continue to attend St. Charles in the 6:1+1 self-contained class four hours per day, five days per week with related services of speech/language, physical, occupational and music therapy during the summer of 1999.

        For the 1999-2000 school year, the CPSE recommended that the child attend the modified applied behavioral analysis (ABA) program at St. Charles. St. Charles reportedly had developed a modified ABA program in response to the parents’ wishes to have their daughter remain in her current placement (August 3, 2000 Transcript pp. 42-43). The modified ABA program, which reportedly provided discrete trial training but did not record data from every trial, was in a self-contained classroom with a student: staff ratio of 6:1+1 four hours per day five days per week (August 3, 2000 Transcript p. 147). The CPSE also recommended a full time aide, to be shared with the child’s twin sister who also was attending the program, making the ratio 6:1+2. It also recommended that speech/language, physical, occupational and music therapy be provided to the child. The child’s mother consented to the CPSE’s recommendation (Exhibit PP), and the child began attending the modified ABA program at St. Charles in September 1999.

        During the fall of 1999, the child’s parents consulted with a private psychologist to assist them in establishing a behavior modification program that could be implemented in the home (Exhibits LL). Specifically, the child’s parents wanted guidance on how to develop their daughter’s toileting skills at home and how to wean her from a bottle, as well as how to increase her understanding of what was being asked of her (November 9, 2000 Transcript p. 801). However, the private psychologist indicated that it was impossible for the family to follow through with an ABA program at home because of the time required, given the level of involvement of the child and her sister (Exhibit LL). The CPSE chairperson had also arranged for the district’s autism consultant to try to set up a home program (August 3, 2000 Transcript p. 47). However the home program was never established (August 3, 2000 Transcript p. 47, November 9, 2000 Transcript p. 801).

        In December 1999, after investigating other residential placement options, the child’s parents decided to place their daughter at NECC (November 9, 2000 Transcript p. 867). In January 2000, the child’s mother advised the CPSE chairperson that she could no longer care for her daughter’s needs physically and that she needed more help with her daughter than could be brought into the home "to get her trained and get her some living skills" (November 9, 2000 Transcript p. 804).

        At a CPSE meeting on April 7, 2000, the parents formally advised the CPSE of their intention to place their daughter at NECC (Exhibit EE). They asserted that their daughter was no longer able to make progress at St. Charles, noting that her learning and activities of daily living skills had leveled off over the past several months. The CPSE determined that it required additional information before it could make a placement recommendation (August 3, 2000 Transcript p. 66). It recommended that updated psychological and psychiatric evaluations be conducted, and agreed to reconvene upon completion of the evaluations.

        The updated psychological evaluation was conducted on April 13 and 14, 2000 (Exhibit X). The psychologist noted that the child displayed poor eye contact, a limited attention span, and difficulty transitioning to the next activity. Her verbal skills were limited and no spontaneous speech was observed. While the child was able to imitate a word, she was not able to use words to make her wants known. She could partially or sometimes gesture appropriately to indicate "yes", "no" and "I want", and she was able to indicate preference when offered a choice. The child also could partially or sometimes recite all letters of the alphabet, and partially or sometimes read at least three common signs. Her ability to respond to spoken requests was inconsistent, and she was unable to demonstrate an understanding of the concept "show me" or "point to". She could put shoes on correctly and remove a front-opening coat, sweater or shirt without assistance.

        As part of the evaluation, the child was observed in her classroom to sort by color and shape with minimal assistance, to stack blocks, and to imitate simple adult movements. She also was observed to sign the words "more" and "on", imitate adult vocalizations, and spontaneously retrieve an object of play. The evaluators indicated that while the child had benefited from the services she had received at St. Charles, she continued to require intensive developmentally based specialized educational and therapeutic services.

        The child was re-evaluated by Stony Brook in April and May 2000 (Exhibit Y). With respect to her functioning at home, the child’s mother advised the evaluators that her daughter had never been physically aggressive and did not destroy her belongings. The mother reported that her daughter had learned a limited number of signs at school, and only used words when counting. The child was unable to use utensils. She ate with her fingers and drank from a bottle. The mother also indicated that her daughter was dependent for dressing and was still in diapers. She had no meaningful play behaviors and would wander if unsupervised. While episodes of crying associated with communicative frustration had increased, the tantruming and inflexibility described in the first assessment were no longer identified as problems.

        The evaluators reported that the child’s performance on the PL-ADOS showed increased evidence of autistic pathology since her last assessment. They noted that in contrast to the evaluation conducted the previous year, the child’s mother was not present during this evaluation. The child vocalized mostly unintelligible jargon almost continuously throughout the evaluation. She did not respond to her name, point at or show anything, nor did she follow any commands or demonstrate any comprehension of what was said to her. Her eye contact was limited, no gestures were observed and she did not demonstrate joint attention. The child’s play behaviors were nonmeaningful and her attention span was limited. She attended to most toys only briefly and appeared to be in constant motion. No pretend play was observed. The child showed unusual interest in specific sensory experiences, such as playing with string in front of her eyes, rubbing it on the table and mouthing a toy car.

        As part of the evaluation, the child was observed at St. Charles where she understood the structure of the day and had no difficulties with transitions. She moved from one activity to the next without incident. The child took little notice of the children around her, with the occasional exception of her sister. She made a variety of singsong sounds, but demonstrated no meaningful language. The child exhibited repetitive movements including rocking, hand waving, and rhythmic table hitting. In speech/language therapy, the child avoided language tasks. She required constant reinforcement and redirection to stay on task. The speech/language therapist commented that the child appeared less attentive to therapy this year than last year, and attributed some of the inattention to ear infections and antibiotic use. The child used signs for "more", "open" and "no" spontaneously, and would repeat "I want" if prompted, but not independently. The evaluators described the child’s gait as wide-based and somewhat awkward. They noted that she used a support chair so that her attention was not absorbed by her difficulties with balance and strength. The evaluators recommended that the child required full day structured programming. They indicated that she would benefit from a well designed ABA curriculum with additional support in social skill development, language and social communication, and development of functional play skills. They also recommended consistent programming that reinforced what was learned at school in the home setting. The evaluators further recommended daily individual and group speech/language programming, as well as speech/language activities integrated into the school day. Establishment of more structured eating, drinking from a cup and urination habits were also suggested. The evaluators also recommended the continuation of physical therapy.

        Respondents placed their daughter at NECC on May 9, 2000. On May 19, 2000, the CPSE reconvened to develop the child’s IEP for the remainder of the 1999-2000 school year and summer 2000 (Exhibit CC). Based upon the information in the updated psychological and psychiatric evaluations, it recommended continuation of the program at St. Charles, including the shared teacher aide, with the addition of ABA training provided by a special education itinerant teacher (SEIT) four hours per day, five days per week. The SEIT services were to be provided at St. Charles because the parent did not want services delivered in their home. The CPSE also recommended that a functional behavioral assessment be conducted. The parent rejected the IEP, and the child remained at NECC.

        Petitioner’s Committee on Special Education (CSE) met on June 15, 2000 to recommend a program for the child for the 2000-01 school year, her first year of eligibility for a school-age program under the CSE’s jurisdiction (Exhibit DD). The CSE recommended that the child be classified as autistic, and that she be placed in a 6:1+4 self-contained ABA program at petitioner’s Arrowhead School (Arrowhead), a full school day program operating from 8:15 a.m. to 2:15 p.m., with the related services of speech/language, physical and occupational therapy, and parent training. The CSE also recommended that the child attend a school age child care program (SACC) at Arrowhead after school with an assistant trained in ABA. The IEP that the CSE developed for the child included annual goals addressing her behavioral, cognitive, speech/language, self-help, motor and social deficits. The parents did not agree with the CSE’s recommendation, and the child remained at NECC.

        The parents requested an impartial hearing on June 22, 2000 (August 3, 2000 Transcript p. 3). The hearing began on August 3, 2000 and was held on various dates, ultimately concluding on May 22, 2001. The hearing officer rendered his decision on August 29, 2001. He found that the program at Arrowhead was not an intensive all day ABA program as recommended by the experts. He further found that the child’s IEP did not contain any specifics regarding the SACC program, other than providing that an aide would be present. The hearing officer also found that the parents’ unwillingness to accept home services should not have prevented the CSE from recommending an intensive home training program on the child’s IEP. He determined that the IEP would work only if the SACC program was in place with specifics and with follow-up in the home. He concluded that the failure of the CSE to include such information in the IEP made it inappropriate. The hearing officer then determined that NECC’s program was appropriate for the child, and he ordered petitioner to reimburse the parents for their daughter’s educational expenses for the 2000-01 school year.

        Petitioner argues that the hearing officer erred in finding that its CSE failed to develop an appropriate IEP for the child. 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 its 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]). 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 have reviewed the IEP developed for the 2000-01 school year, and I find that it accurately reflects the results of the evaluations that identified the child’s needs. I note that the assessment conducted when the child first entered NECC identifies the same needs with comparable functioning levels (Exhibit 6). I also find that the goals and objectives listed on the IEP address the child’s needs as identified in the evaluations. The evaluations show that the child had deficits in self-help skills. To address the child’s self-help deficits, her IEP includes a goal for increasing independence for feeding and snacks. The corresponding objective addresses proper use of utensils and increasing the variety of foods. The child also had speech/language deficits and the IEP includes goals to address pre-speech, expressive and receptive language, and functional communication skills. Additionally, the IEP includes goals to address the child’s motor, attending, play and cognitive deficits, all of which were identified as areas of need in the evaluations.

        Respondents claim that the IEP is inappropriate because it does not include goals to address the child’s screaming and crying, self-stimulatory and aggressive behavior. I note that when the child was evaluated at Stony Brook in the spring of 2000, the child’s mother advised the evaluators that her daughter had never been physically aggressive (Exhibit X). However, when the mother testified at the hearing, she indicated that beginning in the fall of 1999 her daughter had exhibited more aggression in the home. In any event, there is no evidence in the record showing that the child exhibited aggressive behavior at school. I further note that the NECC assessment indicated that the child’s aggressive behavior was of little concern (Exhibit 6). The record shows that the child’s rocking behavior was sporadic and stopped with verbal commands (Exhibit U). It further shows that when the child engaged in inappropriate behavior at St. Charles, she was immediately redirected to a more appropriate task (Exhibit T). This is consistent with the NECC assessment, which indicated that the child was easily redirected from engaging in self-stimulatory behavior (Exhibit 6). Based upon the information before me, I am unable to conclude that the IEP is inappropriate because it failed to establish goals addressing behaviors that the child did not exhibit at school or that were easily redirected by her teachers. I must note, however, that the Arrowhead program had strategies in place to address inappropriate behaviors. The special education teacher who helped develop and implement the ABA program for children with autism at Arrowhead testified about various strategies, including establishing behavior contracts to address inappropriate behavior (September 8, 2000 Transcript pp. 245-46).

        Respondents also claim that the IEP failed to include an objective for the child to use the toilet independently. At the time the child’s IEP was developed, she required either full or partial manual prompting to follow a visual picture schedule to complete the necessary steps to toileting (Exhibit T). The objectives to support her goal to increase independence in toileting skills include cooperating during the process and self-initiating. Given the child’s functioning level at the time the IEP was developed, I find that these objectives could reasonably be accomplished in the established time frame. Based upon the information before me, I find that the goals and objectives developed by petitioner’s CSE are related to the child’s needs.

        To meet the established goals and objectives, the CSE followed the recommendations of the private evaluators from Stony Brook in the spring of 2000, which at the time were unrefuted. The CSE recommended that the child be placed in the 6:1+4 full school day ABA program at Arrowhead with related services of speech/language, physical and occupational therapy. Arrowhead’s ABA program included discrete trial training, incidental teaching and video modeling (September 8, 2000 Transcript p. 228). It also provided for integration with general education kindergarten students (September 8, 2000 Transcript p. 226). The CSE further recommended that the child attend the SACC program at Arrowhead from 2:15 p.m. to 6:00 p.m. with a teacher aide trained in ABA. The SACC program provided a variety of scheduled activities, including snack time, playground time, games, and videos, with students choosing among the available options (September 8, 2000 Transcript p. 345). In that setting, the ABA trained aide would have provided individual attention to the child, assisting with play, eating and self-care skills such as hanging up her coat and unpacking her bag (September 11, 2000 Transcript p. 479).

        Respondents claim that the recommended program was not appropriate for their daughter because she is highly distractible and in need of a structured environment. However, the record shows that the child made progress in the four hour modified ABA program at St. Charles. The district’s autism consultant, who had observed the child at St. Charles, testified that the child needed frequent reinforcement for appropriate behaviors, but she demonstrated the ability to sit and complete tasks (September 11, 2000 Transcript p. 410). The evaluator from Stony Brook testified that the child demonstrated understanding of the structure of the day and moved from one activity to the next without incident (September 22, 2000 Transcript p. 402).

        Respondents also claim that the recommended program was inappropriate because it operated for only 210 days a year, while their child required services 365 days per year. Although the professionals who evaluated the child disagreed as to whether she required a residential placement, they all agreed that she required more hours in a program that was more intense than the program at St. Charles. The district’s autism consultant and the independent evaluator from Stony Brook each testified about the importance of providing additional hours of instruction of the child (September 11, 2000 Transcript pp. 482, 502, September 22, 2000 Transcript p. 412). The program recommended by the CSE would more than double the hours that the child was receiving at St. Charles. The six hour ABA program at Arrowhead combined with the nearly four hours at the SACC program with an ABA trained aide totaled almost ten hours of instruction per day. Prior to her placement at NECC, the child had attended the four-hour St. Charles program. Her parents did not accept any additional special education services offered by the district, nor did they consider any other special education programs suggested by the district specifically designed for autistic children but less restrictive than the residential placement at NECC. Based upon the information before me, I conclude that the child’s needs could have been met in the recommended full day special education program with the additional SACC program.

        The Board of Education was legally obligated to place petitioners’ daughter in the least restrictive environment. A residential placement is one of the most restrictive placements for a student, and is appropriate under the law only when it is required in order for a student to benefit from his or her educational program (Kerkam v. Superintendent, D.C. Pub. Sch., 931 F. 2d 84 [D.C. Cir. 1991]; Burke County Bd. of Educ. v. Denton, 895 F. 2d 973 [4th Cir. 1990]; Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir. 1980]; Application of a Child with a Disability, Appeal No. 95-33). Having determined upon the present record that the child’s educational needs could have been met in the recommended day program, I must find that petitioner was not obligated to offer the child a residential placement.

        Respondents also claim that the recommended program was not appropriate because the SACC program does not operate during the summer. The IEP developed by the CSE at the June 2000 meeting for the child’s kindergarten year at Arrowhead has a completion date of June 2001, the end of the 2000-01 school year. The issues that are before me relate to the program recommended for the 2000-01 school year. The summer program would be included in the recommendations for the 2001-02 school year. Finally, I am not persuaded by respondents’ argument that it is inappropriate to rely upon a high school graduate to provide ABA instruction. The child’s IEP specifically provides that the assistant assigned to the child during the SACC program will be trained in ABA.

        I find that petitioner has demonstrated the appropriateness of the program recommended by its CSE. Having so found, it is not necessary that I address the second and third criteria for an award of tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision awarding tuition reimbursement to the parents for their daughter’s educational expenses for the 2000-01 school year is hereby annulled.