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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 Monroe-Woodbury Central School District


Boeggeman, George, Hodges & Corde, P.C., attorneys for petitioners

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel


         Petitioners appeal from an impartial hearing officer’s determination that respondent’s Committee on Preschool Special Education (CPSE) had recommended an appropriate education program for their daughter for the 2001-02 school year. The appeal must be dismissed.

        At the time of the impartial hearing, petitioners’ daughter was three years old and was identified by respondent’s CPSE as a preschool student with a disability (Exhibits 2, 3). Petitioners first became concerned about their daughter’s development around her first birthday. They noted that she had stopped chewing, standing and walking, and had instead begun to shake her fingers repetitively in front of her eyes (Transcript p. 523). In November 2000, the child’s pediatrician reported that the child exhibited symptoms and needs consistent with a pervasive developmental disorder (Exhibits 8, S).

        In October 1999, she was referred for early intervention services under the aegis of the Orange County Health Department, and in December of that year an initial individualized family service plan (IFSP) was developed. According to the IFSP, petitioners’ daughter demonstrated cognitive skills in the 6-8 month range, expressive and receptive language skills in the 8-9 month range, adaptive skills scattered between the 5 and 15 month levels, gross motor skills between the 16 and 18 month levels, and social skills in the 5-8 month range. It was noted that she made her needs known by pointing and pulling. She did not play purposefully with toys, had difficulty following directions, and demonstrated oral motor sensitivity (Exhibit H).

        By early 2000, petitioners’ daughter began receiving special education and occupational therapy in her home (Transcript pp. 528-529), and participated in an early intervention playgroup (Exhibit I; Transcript pp. 531-532). Petitioners subsequently withdrew her from the playgroup because they believed that it was not meeting her social needs (Transcript p. 532). On July 10, 2000, the child’s IFSP was amended to include physical therapy, feeding and speech services (Exhibit N).

        Early intervention progress reports indicate that by November 2000 petitioners’ daughter had learned how to play with toys, could repeat common sounds, and demonstrated turn taking (Exhibits P, Q). Her eye contact and imitation skills had improved (Exhibit P). However, it was noted that the child remained below the 12-month level cognitively and socially (Exhibits P, Q).

        On March 27, 2001, the child’s program was changed from traditional applied behavioral analysis (ABA) to the Carbone method (a modified discrete trial method) in the hope that it would improve the child’s verbal communication skills (Exhibit BBB). The Carbone method differs from traditional ABA in that its focus is on using ABA strategies to elicit verbal (Transcript p. 538). Petitioners noticed that their daughter was making progress, particularly in the area of verbal communication, upon switching to the Carbone method. By June 2001, petitioners’ daughter was receiving 35 hours of special education services using the Carbone method in the early intervention program, as well as speech therapy three times a week, physical therapy once a week and occupational therapy once a week (Exhibits 1, 9).

        In the spring of 2001, the child was evaluated for the CPSE, which would be responsible for recommending an educational program for the 2001-02 school year. One of respondent’s school psychologists observed the child at her home in May 2001. The psychologist noted that the child had severe communication difficulties, poor social interaction skills and a repertoire of self-stimulating behaviors. Although the child demonstrated good eye contact, she was unable to initiate or sustain interactions, even with prompting. It was further noted that petitioners’ daughter required a full continuum of prompts to maintain interactions with her parents or a service provider. When frustrated, the child would scream loudly and bang her head and chin (Exhibit 1).

        On May 17, 2001, respondent’s CPSE recommended that petitioners’ daughter be identified as a preschool student with a disability, and that she attend a special education program at the Preschool Learning Experience (PLE) in New Windsor, NY in September 2001. The CPSE also recommended a 1:1 aide while the child attended PLE, two and one-half hours of speech/language therapy a week, two and one-half hours of occupational therapy a week and 30 minutes of physical therapy a week (Exhibit 2). The child’s program was to include two and one-half hours of discrete trial instruction per day by a paraprofessional at the preschool, two and one-half hours of discrete trial instruction per day by a special education itinerant teacher (SEIT) at home, two hours per week of teacher consultation and training, and one hour per month of parent training. On the child’s individualized education program (IEP), the CPSE noted that the child was then receiving 31 hours of discrete trial training in the early intervention program, and that current instructional strategies employed in the home could be implemented within a preschool setting. However, the CPSE did not specify use of the Carbone methodology on the IEP (Exhibit 2).

        Despite having concerns about their child’s readiness for a preschool program, petitioners signed a consent form for the special education placement which was to commence on September 5, 2001, and the CPSE agreed to reconvene in August 2001 (Exhibits GG, JJ). In the interim, the child’s mother visited PLE on two occasions. The child continued to receive early intervention services until August 2001.

        At a meeting on August 9, 2001, respondent’s CPSE confirmed its initial recommendations, except that the recommended class size was changed from 12:1+1 to 10:1+3. During the meeting, petitioners withdrew their consent for placement. On the IEP prepared by the CPSE that day, there is a notation that the county representative had stated that arrangements had been made to have special education personnel trained so that they could assist in continuing the current instructional approach with the student. However, the CPSE again did not specify the use of an instructional methodology on the child’s IEP (Exhibit 3). The CPSE indicated that it would hold a placement for the child at PLE (Exhibit HHH). However, petitioners enrolled their daughter in a regular education program at St. Paul’s Christian Education Center (St. Paul’s), and respondent provided 12.5 hours a week of SEIT services at the child’s home.

        On August 14, 2001, petitioners requested an impartial hearing (IHO-1). The impartial hearing was conducted on October 16 and November 7, 14, 19, and 20, 2001. In a decision dated February 19, 2002, the hearing officer concluded that petitioners were not entitled to tuition reimbursement because respondent had established that its recommendation was appropriate. He noted that the IEP was reasonably calculated to allow the child to receive educational benefits in the least restrictive environment (LRE) and that her present levels of performance and her needs were adequately and specifically described in the IEP. The hearing officer concluded that the IEP reflected the results of evaluations that identified her needs and that it provided for services to address those needs. He further noted that in the recommended program petitioners’ daughter would be suitably grouped with children of similar needs and abilities and within the permissible age range. The hearing officer also determined that the 40-minute ride from the child’s home to the recommended placement was not so long that it rendered the recommended program inappropriate.

        Petitioners contend that the program offered by respondent’s CPSE was inappropriate. They allege that the 2001-02 IEP did not specifically indicate that the Carbone methodology was to be used to educate their daughter and that the teachers and staff were not properly trained in the Carbone method when school began. In addition, they argue that the recommended placement was not in the LRE appropriate to their daughter’s needs because the program did not allow her to interact with "neurologically typical peers" and was approximately 40 minutes from her home. Petitioners also contend that the impartial hearing officer erred in concluding that they sought tuition reimbursement, notwithstanding their then counsel’s request for such relief in his post-hearing memorandum of law. Petitioners request that the hearing officer’s decision be annulled, and that respondent be ordered to provide their daughter with 35 hours per week of "verbal behavior/ABA therapy a/k/a Carbone method", physical therapy twice a week, occupational therapy five times a week, speech therapy five times a week, feeding therapy five times a week, and a full time aide to accompany her to St. Paul’s.

        Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CPSE (Application of a Child with a Disability, Appeal No. 97-78; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; 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 (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the LRE (8 NYCRR 200.6[a][1]). Both Federal and State regulations, in defining the LRE, require school districts to place children with disabilities in schools that are as close to their homes as possible. The proximity between a child’s residence and the school which she will attend is an important consideration, but not the sole criterion, in determining the child’s placement (Schuldt v. Mankato Independent School District, 937 F. 2d 1357 [8th Cir., 1991]; Matter of a Handicapped Child, 24 Ed. Dept. Rep. 360). The placement must be appropriate in terms of the child’s needs (Matter of the Bd. of Educ., 24 Ed. Dept. Rep. 263).

        I find that the program respondent’s CPSE recommended for petitioners’ daughter during the 2001-02 school year was appropriate. The CPSE was not required to specify a teaching methodology in the child’s IEP (Application of a Child with a Disability, Appeal No. 95-15). Rather, the precise teaching methodology to be used by a child’s teacher is a matter to be left to the teacher (Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-46; Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269). Therefore, respondent’s decision not to indicate a specific teaching methodology did not render the IEP inappropriate. It must, however, be noted that the PLE staff did receive training in the Carbone method. Although petitioners contend that such training was not completed until mid September, the child’s teacher and her assigned aide had already been trained in ABA and sign language (Transcript pp. 487-488). Since the Carbone method, as delivered to petitioners’ daughter, consisted of signing in the natural environment and creating a desire to communicate, the child’s teacher and aide could have begun addressing her goals and objectives prior to their completion of the Carbone training.

        I also find that the program recommended for petitioners’ daughter for the 2001-02 school year was in the LRE appropriate to her individual needs. Although petitioners contend that their daughter’s special education services should have been provided to her at home, there is nothing in the record to afford a basis for concluding that the child required such a restrictive setting. The child has severe communication delays, poor social skills and significant management needs. Due to the nature of her disabilities and the way that they affect her ability to learn, she requires primary special education instruction in order to receive an appropriate education.

        Dr. Cullen, an expert in autism, testified that the program recommended by the CPSE would provide petitioners’ daughter with an opportunity to interact with appropriate role models and would likely minimize her self-injurious behaviors (Exhibit 15; Transcript pp. 60-77, 116-117, 124-125). In addition, the class profile for that program indicates that petitioners’ daughter would have been grouped with children who had similar needs and abilities and who were within the permissible age range (Exhibit 12). Although the recommended program is a 40-minute bus ride from petitioners’ home, I agree with the hearing officer’s conclusion that the length of the ride did not render the recommended placement inappropriate. Having reviewed the record, I find that the program and placement recommended by the CPSE for the 2001-02 school year were appropriate.

        I have considered petitioners’ other claims, including their assertions that the child should have received more physical therapy than was recommended by the CPSE and should have received feeding therapy. I note that the IEP includes objectives relating to the latter. Having reviewed the IEP goals and objectives, I find that the CPSE recommended an appropriate amount of services to afford the child a reasonable opportunity to achieve those goals and objectives.


Topical Index

Least Restrictive Environment (LRE)
Parent Appeal
Related ServicesPhysical Therapy
Staff Training