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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 Commack Union Free School District


Pamela Anne Tucker, Esq., attorney for petitioners

Lamb & Barnosky, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel


         Petitioners appeal from an impartial hearing officer's determination that the individualized education program (IEP) developed by respondent's Committee on Special Education (CSE) was appropriate. Petitioners assert that the IEP was inappropriate and that they are entitled to reimbursement for the cost of providing home-based services to their child during the 2001-02 school year. The appeal must be dismissed.

        Respondent's Committee on Preschool Special Education (CPSE) first identified petitioners' son as a preschool student with a disability when he was three years old (Transcript pp. 43, 131). When he reached school age, the CSE classified petitioners' son as a student with autism. The student's social and cognitive development levels are significantly below age expectations (Exhibit 36). He reportedly is highly distractible, and unless redirected, he engages in self-stimulatory behavior (Exhibit 28). Petitioners' son displays severe delays in receptive and expressive language skills, and communicates both verbally and through the use of picture symbols and written words. In addition, the student has difficulties generalizing skills to new materials or different environments (Exhibit 8; Transcript pp. 374-75). At the time of the hearing, petitioners' son was 12 years old.

        The student attended the Developmental Disabilities Institute (DDI) from 1993 through 1997 (Exhibits 67, 48). At DDI, the student's teachers used the applied behavioral analysis (ABA) instructional technique with him (Transcript pp. 134, 135). In July 1997, the CSE placed petitioners' son in an ABA program at a BOCES location (Exhibit 48). Parent training was an integral component of that program (Transcript pp. 298-301; 355-56). The student's teacher testified that she and a psychologist would generally visit students' homes every other month for about two hours (Transcript p. 420), and another school psychologist testified that the parents had participated in the program's parent training (Transcript pp. 392-93). In addition to the instruction their child received at school, petitioners hired private instructors to provide their child with an ABA program at home (Exhibit 25).

        The CSE met on March 15, 2001 at the parents' request (Transcript pp. 160-61). Petitioners presented a report from the privately employed coordinator of the home program indicating that their son experienced regression in the skills learned at school when he failed to receive home teaching sessions (Exhibit 25). The CSE adjourned the meeting in order to review the submitted data (Exhibit 20). The CSE convened again on April 19, at which time it recommended continuation of the student's ABA school program, with the addition of two extra hours of parent training per week to determine whether the student was generalizing skills he learned at school. The CSE recommended review of the program after six weeks (Exhibit 16). When the CSE convened approximately six weeks later, it did not recommend a home program (Exhibit 11). The psychologist hired to evaluate whether the student was able to generalize skills had not yet completed his evaluation.

        The CSE convened on September 13, 2001 and recommended a program that included 30 hours per week of ABA instruction (Exhibit 8). The student to staff classroom ratio was 6:1+1, and petitioners' son was assigned an individual aide for three hours per day (Exhibit 8). The other students in the class also had individual aides, and a speech therapist and a psychologist were each present in the class on a part-time basis (Transcript pp. 151, 152). The CSE recommended that the amount of parent training be increased,1 bringing the total to four hours per week (Exhibit 8; Transcript p. 171). The additional parent training, however, was not immediately offered because the district had difficulty locating an appropriate provider (Exhibit 3; Transcript pp. 175-77).

        On November 30, 2001, petitioners requested a hearing pursuant to the Individuals with Disabilities Education Act (IDEA) and New York State Education Law § 4404. Petitioners sought reimbursement of the cost of providing home ABA services and an amendment of their son's IEP to include 15 hours of home ABA services (Exhibit 2). Respondent sought to begin the recommended parent training services on December 1, 2001, but petitioners declined the services (Exhibit 3; Transcript pp. 175-77).

        The hearing was held on five dates commencing March 12, 2002 and ending on April 26, 2002. In a decision dated June 28, 2002, the hearing officer found that generalization of skills is not a necessary component of an appropriate program. Rather, he concluded that a program is appropriate if it enables a student to achieve measurable gains in the classroom. He determined that respondent had recommended an appropriate program, and he denied petitioners' requests for tuition reimbursement and home services.

        Petitioners received the hearing officer's determination on July 5, 2002. The notice of intention to seek review (notice of intention) was not served on respondent until August 8, 2002. A notice of intention must be served within 30 days after receipt of the decision sought to be reviewed (8 NYCRR 279.2[b]). Respondent asserts that the petition should be dismissed because of untimely service of the notice of intention (Answer ¶ 9). Petitioners allege that they delivered the notice of intention to a process server in a timely manner, but the process server failed to effect timely service. Petitioners have submitted a letter from the president of the service company acknowledging the error (Petition Exhibit A). Respondent also asserts that the petition should be dismissed because the notice of intention was improperly addressed to the Commissioner of Education and because the petition was served less than ten days after service of the notice of intention (Answer ¶¶ 10, 12).

        The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer (8 NYCRR 279.2[a]). The record in the instant appeal was provided. Neither the address of the notice of intention nor the minimal delay in service had an impact on this proceeding (Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 01-055). The notice of intention must be served on a school district at least ten days prior to service of the petition (8 NYCRR 279.2[b]). Although the petition was served less than ten days after service of the notice of intention, petitioners explain in their reply that the petition was served on August 14, 2002 to insure compliance with the regulation requiring petitions to be served within 40 days of receipt of the hearing officer's determination (8 NYCRR 279.3[c]). If the process server had served the notice of intention in a timely manner, service of the petition would have been in compliance with the regulatory requirement. The evidence shows that petitioners were not responsible for the regulatory violations. I have considered respondent's other procedural arguments and find them to be without merit. I, therefore, decline to dismiss the petition.

        The purpose behind the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). Parents who contend that their child has been denied a FAPE may independently obtain educational services and seek reimbursement for those services by invoking their due process rights (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; 34 C.F.R. § 300.403[c]). 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 (Id.). 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, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 02-092). 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 U.S. 176, 206-07 [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 identifying 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 (34 C.F.R. §§ 300.346, 300.347; 8 NYCRR 200.4[d][2]). An appropriate IEP must also include a student's present levels of performance and individual needs with respect to academic achievement and learning characteristics, physical development, social development, and management needs (8 NYCRR 200.4[d][2][i] and 200.1[ww]). The information must be sufficiently detailed to enable the CSE to prepare appropriate goals and objectives (8 NYCRR 200.4[d][2][iii]). The IEP developed for petitioners' son indicates that the student has intense management needs, functions substantially below chronological age level, demonstrates inappropriate social interaction and has physical problems generally relating to fine motor skills (Exhibit 8).

        The goals and objectives recommended for petitioners' son emphasized communication, organization, and self control (Exhibit 8). During the prior school year, the student had demonstrated improvement in communication skills, identification of colors and shapes, following directions, exhibiting patience, and imitating gross and fine motor movements (Exhibit 26). The goals and objectives for the 2001-02 school year build on the student's progress and focus on daily living skills. They address the student's ability to acquire information, communicate information, follow directions regarding dangerous situations, use mathematical operations in everyday situations, maintain attention, interact with peers and staff, maintain self control, and improve language skills (Exhibit 8). Given the student's needs and his prior achievements, the goals and objectives were appropriate.

        The recommended program was reasonably calculated to allow the student to achieve his annual goals. The IEP included a summer component, an individual aide, 30 hours of ABA services, a low student to staff ratio (6:1+1), and parent training. It indicated that the student would participate in the mainstream for music (Exhibit 8). In addition, a psychologist and a speech therapist were present in the class on a part-time basis (Transcript pp. 151-52). The evidence shows that generalization of skills – that is, learning to apply skills in other settings – occurred between school and home (Transcript pp. 623-26). The parent acknowledged that her son showed improvement in reading comprehension, following directions, eating independently, and transitioning among rooms (Transcript pp. 1104-06). The parent also acknowledged that her son had made progress toward his goals and objectives (Transcript p. 1107). Although the student has not achieved generalization of all skills, the level of generalization he has achieved is appropriate given his disability. The evidence shows that the student's most recent IQ score was 55. The student's progress in generalizing his skills is commensurate with his ability (Transcript p. 620).

        Petitioners assert that their son needs services at home in order to generalize skills learned in school. District personnel who work with petitioners' son concur that generalization is a challenge for the student (Exhibit 26; Transcript p. 457). However, a school district's obligation is to provide a student with a disability with an appropriate education; it is not required to maximize a student's potential (Rowley, 458 U.S. at 177). An appropriate program provides personalized instruction with sufficient support services to allow a student with a disability to benefit educationally from that instruction (Id.). The evidence shows that the program developed by respondent's CSE was personalized and calculated to confer educational benefit. The student has achieved progress in behavior management, social skills, academics, scheduling, identifying emotions, identifying functions of objects, and categorizing (Exhibits 5, 26; Transcript p. 439). The record indicates that he was receiving educational benefit from the program provided by respondent.

        Respondent acknowledges that petitioners' son has difficulty generalizing skills taught at school to the outside environment (Transcript p. 554). Respondent has, however, appropriately addressed the student's need to apply skills learned in school to other settings. The student's teacher testified that, in an attempt to help the student generalize his skills, she changes materials and locations within the building so that skills taught in the classroom are practiced elsewhere (Transcript pp. 426-431, 457). In the cafeteria, the student practices counting money and eating in a group (Transcript p. 426). He practices reading in both the classroom and the library (Transcript pp. 428-29). He applies his social skills in the hallway and money skills in the school store (Transcript pp. 430-31). Additionally, the BOCES program in which the student is enrolled includes a parent training component in which school staff discuss with parents strategies that have been successful with their child (Transcript pp. 154, 298-301, 458-60). I find that respondent developed and provided an appropriate program for petitioners' son.

        The student's September 13, 2001 IEP increased to four hours per week the amount of parent training to be provided to petitioners. The CSE anticipated that the person hired to do the additional parent training would work directly with the student in the home to collect data on his progress. The data would be used to train the parents in working with their son at home (Transcript pp. 172-75). Respondent acknowledged that parent training is an essential component of its ABA program (Transcript p. 301). Respondent further acknowledged that it did not offer the additional parent training until December 1, 2001 (Exhibit 3; Transcript pp. 175-77). When the services were offered, the parent refused them (Exhibit 3; Transcript p. 177).

        School districts are required to provide special education and related services to each student identified as having a disability in accordance with the student's IEP and to make a good faith effort to assist the student in achieving the goals and objectives or benchmarks listed in the IEP (34 C.F.R. § 300.350[a]). School districts must ensure that a student's IEP is in effect before special education and related services are provided and that the IEP is implemented as soon as possible following the CSE meeting (34 C.F.R. § 300.342[b]). However, failure to implement a portion of an IEP constitutes a denial of FAPE only when substantial or significant portions of the IEP were not implemented (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000], cert. denied, 531 U.S. 817 [2000]). The record reveals that respondent attempted to hire an appropriate provider of parent training and offered petitioners such training as soon as it was able to locate a trainer following the September 13, 2001 CSE meeting (Exhibit 3; Transcript pp. 175-77). In addition, petitioners' son continued to participate in the BOCES program through which petitioners had previously received parent training. I also note that, as indicated above, petitioners' son benefited from his educational program and that petitioners refused the additional parent training services when a provider was found. Petitioners also did not incur out-of-pocket expenses related to parent training. Under the circumstances presented, I conclude that respondent's failure to promptly provide the additional parent training does not constitute a denial of FAPE. Respondent must take steps, however, to assure that the recommendations of its CSE are implemented in a timely manner.

        I have considered petitioners' other assertions and find them to be without merit.