02-049

       Petitioners appeal from an impartial hearing officer's decision denying their request for an order directing respondent to conduct assessments to determine if applied behavioral analysis (ABA), auditory integration therapy (AIT), and music therapy should be provided to their daughter. The appeal must be dismissed.

        Petitioners' daughter was eight years old and in a kindergarten inclusion class in respondent's district at the commencement of the hearing. Petitioners do not challenge their daughter's identification as a child with autism.

        Petitioners' child was diagnosed with autism at the age of three in October 1997 (District Exhibit 1). In December 1997, psychological, speech-language, and occupational therapy evaluations were conducted. The evaluations were difficult to administer due to the child's self-directed behavior and high level of distractibility. Her composite score on the Vineland Adaptive Behavioral Scales (Vineland) was 53. Speech-language evaluation results indicated significant delays in receptive and expressive skills. She also exhibits impaired social behaviors. The occupational therapist was unable to complete standardized testing at that time, due to the child's difficulty with transitions, sensory integration needs, and emotional behavior (District Exhibit 1).

        During the 1997-98 school year, the child received special education services recommended by the Committee on Preschool Special Education (CPSE) (Transcript p. 44). Those services were provided by Jowonio, a preschool approved by the Commissioner of Education to contract with school districts for the education of preschool children with disabilities. During the 1998-99 school year, speech therapy and occupational therapy were provided to the child at home, at the request of her parents (Transcript p. 45). In addition, petitioners requested that respondent provide ABA services to their child. That request was denied, and they subsequently provided ABA services in their home at their own expense for 35 to 38 hours per week. The child's father testified that consultants trained in ABA set up a program and provided training to the parents and other therapists (Transcript pp. 696-99).

        In September 1999, the child started attending a preschool twice a week (District Exhibit 2), and in February 2000, the child began a transition program to familiarize her with the school setting at the public school she was to attend (Transcript p. 47). The child reacted to her new environment with tantrums, screaming, and self-injurious behaviors (Transcript pp. 50, 642), and it took the child four visits before she could enter the classroom (Transcript p. 642). After making the transition of entering the classroom, she was allowed to explore the room at a fast pace using her stimulatory behavior. This behavior continued until the teacher very slowly and in small increments worked with her to experience different parts of the room. By the end of the school year, she would watch other children play in the classroom, and she would attempt to initiate contact with her classmates (District Exhibit 2).

        In an occupational therapy evaluation dated April 5, 2000 (District Exhibit 4), during which a Peabody Developmental Motor Scale was administered to assess fine motor skills, petitioners' daughter achieved a basal level age equivalent of 18-23 months, a ceiling level of 48-59 months and an overall fine motor level of 19 months. The results indicated a fine motor delay of 48 months (District Exhibit 4). Additionally, a speech and language report dated April 21, 2000 (District Exhibit 3) noted that the child made significant gains in her ability to articulate sounds and words, was able to follow one and two-step directions and was more accepting of new routines. The use of a portable augmentative communication device was recommended in order to enable the child to generate her own thoughts and ideas. It was recommended that the child continue receiving speech and language therapy through the summer and into kindergarten. In a report dated May 2000 (District Exhibit 2), the evaluator reported that the child benefited from her experiences in the past year, became a participant in her classrooms, was able to follow classroom routines and expectations with support, became more comfortable around her peers, and began initiating play with them.

        In May 2000, the Committee on Special Education (CSE) convened to develop an individualized education program (IEP) for the child. She was classified as autistic, and the CSE recommended placement in a kindergarten inclusion class with 12:1+1 student to staff ratio (District Exhibit 6). Although the recommendation was an inclusion class, petitioners' daughter attended a general education kindergarten class and she received special education services on an individual basis outside of the classroom during the 2000-01 school year (Transcript p. 90). The child's special education teacher also provided push-in services twice a week to work with the child directly in her general education class (Transcript p. 331). Additionally, the child received speech therapy for 30 minutes a day, five times a week and occupational therapy for 30 minutes a day, three times a week (District Exhibit 6). She was not grouped for instruction with any other children with disabilities (Transcript p. 90).

        There were three CSE meetings held between April 4, 2001 and June 13, 2001 (District Exhibit 12). The child's classification remained the same, and the CSE recommended placement in a first grade inclusion class with a 12:1+1 student to staff ratio. The recommendation included speech and language therapy for 30 minutes a day, five days a week and occupational therapy for 30 minutes a day, two days a week. Additionally, the CSE recommended use of a DynaMyte, a programmable augmentative communication device (District Exhibit 12).

        Petitioners requested an impartial hearing on June 5, 2001 (District Exhibit 14), seeking a reevaluation to determine whether AIT and music therapy would be appropriate additions to the child's program. That request was subsequently expanded to include an assessment to determine whether ABA services should also be added (District Exhibit 18). The impartial hearing in this matter was conducted on five separate dates, concluding on December 18, 2001. In a decision dated April 14, 2002, the hearing officer concluded that the parents' right to have their child reevaluated was not "absolute". Citing various provisions of 20 U.S.C. § 1414(a) and (c), he determined that because petitioners sought additional assessments to determine their daughter's need for particular services rather than to determine her continued identification as a child with a disability, they had no "absolute right" to the requested assessments. The hearing officer found the CSE had sufficient information to determine the child's present levels of performance and educational needs and to determine if additions or modifications were needed to the child's special education program. Further, he concluded that the respondent complied with the procedural requirements of the Individuals with Disabilities Education Act (IDEA) and that the 2001-02 IEP was reasonably calculated to enable the child to receive educational benefits. Ultimately, the hearing officer denied petitioners' request for AIT, ABA and music therapy assessments.

        Petitioners argue in this appeal that 20 U.S.C. § 1414(a)(2)(A) requires a school district to reevaluate a student whenever a parent requests it, and that they are, therefore, entitled to the assessments they requested to determine their daughter's need for AIT, ABA and music therapy. Additionally, petitioners request attorneys' fees and the imposition of sanctions on the district for its alleged denial of a free appropriate public education (FAPE) to their daughter.

        Respondent argues petitioners do not have an absolute right to require it to conduct the requested assessments, asserting that a parent's right to require a school district to conduct an assessment as part of a reevaluation is limited to determining whether the child continues to be a child with a disability, an issue that is not disputed here. Secondly, respondent asserts that the requested assessments were not necessary to determine the child's instructional and educational needs. Thirdly, respondent argues that ABA, AIT and music therapy are methodologies and that the selection of a method of instruction is left to the discretion of the service provider. Respondent also contends the child's IEP for the 2001-02 school year is reasonably calculated to enable the child to receive educational benefits and that the child has made progress without being provided ABA, AIT, or music therapy. Lastly, respondent argues petitioners' request for attorneys' fees and sanctions on the district should be denied as the State Review Officer (SRO) is without authority to award attorneys' fees or impose sanctions.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 534 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F3d 119, 122; [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-029). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP formulated in compliance with the requirements of the IDEA, 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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Pursuant to 20 U.S.C. § 1414(a)(2)(A), a school district must conduct a reevaluation if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every three years. In conducting a reevaluation, the CSE is to review existing evaluation data and, based on such information, identify what additional data, if any, are needed to determine (1) whether the child continues to have a disability, (2) the child's present levels of performance and educational needs, (3) whether the child continues to need special education, and (4) whether any additions or modifications to the special education services are needed to enable the child to meet annual goals and participate in the general curriculum (20 U.S.C. § 1414[c][1]; 34 C.F.R. § 300.533[a]; 200.4[b][5][a]). If the CSE determines that no additional data are necessary, the parents have the right to require that the school district conduct an assessment "to determine whether the child continues to be a child with a disability" (20 U.S.C. § 1414[c][4][A][ii]; 34 C.F.R. § 300.533[d]). In this appeal, petitioners are seeking assessments solely to determine if ABA, AIT and music therapy should be added to the services included in their daughter's IEP. Accordingly, the issue to be decided is whether the CSE reasonably concluded that it had sufficient information to determine the child's present levels of performance and educational needs and to determine whether any additions or modifications to the recommended services were needed in order for the child to meet her annual goals and participate in the general curriculum.

        In considering the adequacy of the evaluative information available to it, a CSE must review existing evaluation data including information provided by the parents, current classroom assessments and observations, and observations by teachers and related services providers (34 C.F.R. § 300.533[a][1]). Respondent's CSE convened at three separate CSE meetings held on April 4, May 15, and June 13, 2001 (District Exhibits 11, 12; Transcript pp. 145, 153). At the time of the CSE meetings, the CSE had available to it the psychological, speech-language, occupational therapy, and special education reports referred to earlier in this decision. At the April 4, 2001 meeting, the CSE discussed a new physical therapy evaluation which indicated the child's skills were average or above, with the exception of ball catching, which was weak (District Exhibit 11). In addition, the child's special education teacher, occupational therapist and speech-language therapist participated in the CSE meetings (District Exhibit 11; Transcript pp. 376, 444, 482) and testified at the hearing regarding the child's performance and educational needs.

        The child's special education teacher testified that the child's communication skills and social skills improved from the previous year and that she was able to interact with adults she saw in the hallway at school (Transcript p. 356). Her verbal communication improved from pulling her teacher's hand to indicate what she wanted to using spontaneous speech (Transcript p. 357). Her writing skills also improved. Her teacher testified that she was able to write in complete sentences and print in smaller letters (Transcript p. 358), in comparison to the previous year, when she used one word answers. She also made improvements in self-help skills, such as taking care of her snack bag and dressing herself (Transcript p. 363). The special education teacher testified the only areas in which the child did not make progress were the self-help skills of drinking from a cup without a lid and using a spoon without spilling (Transcript p. 371).

        The child's speech-language therapist testified that the child's speech was now very clear, whereas previously she had struggled in formulating syllables and words (Transcript p. 484). She also progressed to using longer phrases (Transcript p. 508) and complete sentences (Transcript p. 502), and her expressive language (Transcript p. 513) and spontaneous speech (Transcript pp. 510-11) showed improvement. The child also improved in her ability to follow oral directions without needing picture cues (Transcript p. 518).

        The child's occupational therapist also testified that the child was progressing. Her fine motor skills were improving, as she was able to independently accomplish tasks, such as cutting with scissors (Transcript p. 439). Her motor planning skills also improved, as she was able to maneuver around the room without any problems (Transcript p. 443). Her gross motor skills were also progressing, as she demonstrated good balance, equilibrium, and adaptive response (Transcript p. 443).

        Based on the evaluations available to the CSE and the information provided by her special education teacher and related service providers, I conclude that the CSE had sufficient information to determine the child's present levels of performance and educational needs, and whether any additions or modifications to the recommended services were needed in order for the child to meet her annual goals and participate in the general curriculum. Additionally, it appears that the child was benefiting from her educational program.

        Petitioners' request for attorneys' fees must be denied. It is well established that neither an impartial hearing officer nor the State Review Officer may award attorneys' fees (Application of a Child with a Disability, Appeal No. 01-011; Application of a Child with a Disability, Appeal No. 94-18). Similarly, the imposition of sanctions is not within the powers of the State Review Officer.

THE APPEAL IS DISMISSED.