03-032

         Petitioners appeal from a hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Promise School for the 2002-03 school year, failing to designate their son's 2002-03 pre-school program as his pendency placement, and classifying their son as other health impaired. The Board of Education does not cross-appeal from the hearing officer's finding that it failed to demonstrate that it had offered an appropriate educational program to the student. The appeal must be sustained.

        At the time of the hearing, petitioners' son was five years old, and attending his second year as a day student at the Promise School, a preschool practicing applied behavioral analysis therapy (ABA), approximately fifty miles from petitioners' residence (Transcript p. 41). This placement had been based upon his classification as a preschool child with a disability by respondent's Preschool Committee on Special Education (PCSE), which in turn had been predicated upon his diagnosis of pervasive- developmental-disorder-not-otherwise-specified (PDD-NOS), an illness falling under the umbrella of autism spectrum disorders. Respondent's Committee on Special Education (CSE) classified the student as other health-impaired when he became elementary school age at five years old. A half-day kindergarten program with special education support and related services within the district was recommended. Both classification and placement are in dispute.

        The child's level of academic achievement indicated below-average functioning in areas other than counting and composition. The Learning Accomplishment Profile Diagnostic revealed writing skills at the seventeenth percentile, matching and counting skills at the thirteenth and eighty-seventh percentiles, respectively, and naming and composition skills at the twelfth and forty-second percentiles, respectively. Although the child scored a 70, a below average level, on the Wechsler Primary and Preschool Scale of Intelligence-Revised, the evaluator indicated that this was not an accurate estimate of the student's intellectual potential, but rather an estimate of his functional intellect at the time of testing (Exhibit 61).

        To address these deficits for the 2002-03 school year, the CSE recommended that the child be enrolled as a 12 month student in a regular kindergarten for 2 1/2 hours per day, five days a week, with a minimum daily extended-day commitment of thirty minutes. In addition, the CSE recommended that he receive thirty minutes of individual push in/pull out special education and thirty minutes of 2:1 speech services, five days per week. Other recommendations included 2:1 occupational therapy and physical therapy for thirty-minute sessions, two times a week and three times a week, respectively. A 1:1 teaching assistant was recommended, as well as a team meeting with the parents once a month (Exhibit 61).

        Petitioners did not accept the CSE's recommended individualized education program (IEP). By letter dated August 15, 2002, they informed the school board president that they disagreed with the recommended placement within the district, and requested an impartial hearing to extend their son's placement at the Promise School to include the 2002-03 school year (Exhibit 63). Petitioners further clarified their due process concerns by letter dated November 29, 2002, reciting various procedural and discovery related deficiencies therewith, and requesting an impartial hearing (Exhibit 71). The hearing commenced December 16, 2002, and concluded on February 10, 2003. In a decision dated March 9, 2003, the hearing officer affirmed the child's proper classification as OHI, but found that respondent had not offered a free appropriate public education (FAPE) to petitioners' son, and that the Promise School was neither an appropriate placement for the child, nor his pendency placement for the 2002-03 school year; the hearing officer failed to decide whether the equities favored the parents.

        Petitioners contend that the hearing officer erred in all determinations regarding their son's education for the 2002-03 school year, with the exception of the hearing officer's finding that respondent denied their son a FAPE based on its failure to discuss classification and behavior related issues with petitioners, deficient notice regarding proposed change of placement, and an invalid IEP. Petitioners first challenge the student's classification as OHI, and assert that he should be classified as autistic, based on a diagnosis of autism spectrum disorder.

        A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). The Regulations of the Commissioner of Education provide the foundation upon which appropriate determinations may be made by defining various categories of educational disability classifications. For example, a classification of other health-impairment means:

"having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance" (34 C.F.R. § 300.7[c][9]; 8 NYCRR 200.1[zz][10]).

In contrast, a classification of autism requires:

"a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if the student's educational performance is adversely affected primarily because the student has an emotional disturbance . . . A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied" (34 C.F.R. § 300.7[c][1]; 8 NYCRR 200.1[zz][1]).

        To classify the child as OHI in this case, respondent relies on a diagnosis of pervasive-developmental disorder-not-otherwise-specified (PDD-NOS) predicated upon medical evaluations (Transcript p. 199, Exhibit 1, 2) as well as classification related literature (Transcript pp. 107, 203). Petitioners support their assertion that the correct classification is autism by relying on the same medical evaluations (Exhibits 1, 2) which indicate diagnoses of Autism Spectrum Disorder, further specified as PDD-NOS, and Global Language Impairment with Pragmatic Language Disorder. Therefore, the dispute is not with the medical diagnoses, but rather with the correct application of the legal educational classification.

        Here, the child's medical diagnoses did not result in limited strength, or a lack of vitality or alertness with respect to the educational environment (34 C.F.R. § 300.7[c][9]; 8 NYCRR 200.1[zz][10]). However, the medical diagnoses did reflect the relationship between communication and social interaction as defined by the regulations (34 C.F.R. § 300.7[c][1]; 8 NYCRR 200.1[zz][1]). The child's language delay demonstrated abnormal pragmatic language development affecting verbal and non-verbal communication and receptive language, and produced diminished social reciprocity before the age of three. Further, his developmental history indicated additional signs of autism: hyperlexia, unusual attentional characteristics, over-focus on invariant materials such as music and videos, and non-compliance with adult directed activities (Exhibit 1).

        The Preschool Language Scale–Third Edition yielded expressive and receptive language function levels in the first and fifth percentiles, respectively, while the Goldman-Fristoe Test of Articulation-Second Edition ranked the student in the 47th percentile. The child's fine motor skills ranked at the eighth percentile as a result of Peabody Development Motor Scale II testing, although the Learning Accomplishment Profile Diagnostic Edition testing resulted in a slightly higher level of fine motor development at the seventeenth percentile (Exhibit 61). At preschool, he exhibited verbal refusals, tantrums, and perseverative or echolalic speech (Transcript pp. 71, 226, 235, 755, 803). The Promise School staff believed that these inappropriate behaviors in conjunction with social and communication issues would have prevented the child from being appropriately placed in a regular kindergarten setting for the 2002-03 school year (Transcript p. 70).

        Based on the information before me and not withstanding the fact that PDD-NOS is identified for medical purposes as a sub-category of autism spectrum disorders rather than as autistic disorder per se, I find that the child's condition is not consistent with an OHI classification, but rather is most consistent with the definition of autism as set forth in state and federal regulations (34 C.F.R. § 300.7[c][1]; 8 NYCRR 200.1[zz][1]). I further find that because the IEP was invalid, respondent could not sustain its burden of proving the appropriateness of the classification or program recommended by the CSE (Application of a Child with a Disability, Appeal No. 01-034). Therefore, the child shall be classified as autistic, and shall be accorded the additional services commensurate with this classification, pursuant to state and federal regulations.

        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 (School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 [1985]). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]). The student's 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]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Board of Educ. of City of Yonkers, 231 F.3d 96 [2d Cir. 2000]).

        Respondent does not cross appeal the finding that the district did not provide a FAPE for the child, but rather seeks dismissal of the appeal. Therefore, because respondent has not met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by the Promise School during that school year were appropriate (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show that the private school provided services that were proper under the Individuals with Disabilities Education Act (IDEA) to the student (Burlington, 471 U.S. 359, 370). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        The record shows that during the planning period for the 2002-03 school year, the child followed simple instructions, but had limited verbal skills, echolalia, sensory processing difficulties, and awkward manual dexterity due to hypermobility in his hands and fingers (Exhibit 61). He exhibited an unconventional thinking pattern, perseveration, fixations, poor frustration tolerance, short attention span, and an inability to understand social situations (Exhibit 44). The child required assistance with daily living skills and the acquisition of appropriate behaviors. He also needed adult support to assist with generalizing learned skills (Exhibit 44, 61) in an integrated setting, and required continual prompting (Exhibit 61). Both a psychologist (Exhibit 44) and a medical doctor (Exhibit 47) supported the Promise School staff (Transcript p. 65) in recommending a second year of ABA therapy and related social and communication guidance for the child. Speech, occupational, and physical therapies were also recommended (Exhibit 47).

        The Promise School program addressed the child's educational, communication, and social needs for the 2002-03 school year. During his first year at the Promise School, the child made both academic and social progress, interacting reciprocally in a group of children, and demonstrating better eye contact (Transcript p. 803, Exhibit 70), although echolaia and refusals occurred across all settings (Transcript p. 803). By August 2002, he had mastered approximately twenty five percent of his goals: decreased verbal refusals, imitation of specific facial movements, recognition of functional signs, sequential ordering, use of irregular past tense, response to instructions posed in conditional terms, object and picture identification and association with proper function, recall of the days of the week, and putting on shoes by himself (Exhibit 64).

        Almost four months later, the child had completed approximately fifty percent of his goals, including but not limited to: appropriate response to verbal directions using possessive pronouns, use of subjective pronouns, use of color, size, shape and numbers for descriptions, use of a single arm throw with no foot movement, appropriate signaling of toileting needs, reciprocation of information, appropriate emotional responses, ability to articulate his own emotional response or mood, and sharing (Exhibit 69). He participated in group activities in the Promise School's separate integrative STAR program and began to generalize learned skills to other settings (Exhibit 70). The child's physical therapist noted progress regarding throwing and kicking skills, while his occupational therapist observed improved body awareness and more attention to detail; his speech therapist reported progress regarding sound imitation, question development, and information discrimination (Exhibit 70).

        At the time of the hearing, the Promise School program was the child's LRE. Although this was a pre-school setting, there were other students at the Promise School who were five and six years old. In addition to receiving ABA therapy, the child also attended a second, separate, integrated program for disabled and non-disabled children, which was supervised by a local pre-school (Transcript pp. 808, 813). The child's local pre-school participation supplemented his participation in the Promise School's STAR program. The STAR program held classes with 10 to 14 children for 90 minutes per day (Transcript pp. 799, 813) and provided "direct teaching" of pragmatic social skills, in the presence of typical peers (Transcript p. 921). Thus, the student had both chronological and academic peers in the Promise School environment.

        The child's ability to tolerate a decrease in ABA discrete trials from two hours per day during the first year to no more that 30 minutes per day during the second year, supplementing his gradual transition into the STAR program and other integrative settings with staff support, reflected functional progress within the structure of the overall special education preschool environment. This modification allowed him more time to experience the supported and structured classroom integration within the STAR program (Transcript pp. 796-799) and other integrated classrooms (Transcript pp. 813-814).

        Moreover, while the child was integrated with disabled and typical peers (Transcript p. 70) and taught kindergarten skills in the STAR program (Transcript p. 814), his classroom setting was not typical of the LRE of a regular kindergarten classroom (Transcript p. 70), but rather was a program that facilitated the student's transition to that environment. It promoted the ABA driven generalization of the skills learned in discrete trial sessions to varied school environments and the future transfer of his new educational and social skills to the LRE of the district's regular kindergarten (Transcript p. 406). This progression was consistent with the medical recommendation to facilitate the child's learning during unstructured times like play and social opportunities, inside and outside of the classroom (Exhibit 47). Therefore, based on the information before me, I find that the parents have met their burden of proving that the Promise School provided appropriate educational services to their son.

        The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. Respondent asserts that petitioners are not entitled to tuition reimbursement because they did not meet the notice requirements of the IDEA. Respondent correctly asserts that reimbursement of tuition for a unilateral placement may be reduced or denied if the parents failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 USC §1412[a][10][C][iii][I]). However, I must note here that the child was not in public school, and, as such, could not be removed from public school (Application of a Child with a Disability, Appeal No. 99-028). Therefore, I decline to apply 20 USC §1412(a)(10)(C)(iii)(I) in the instant case. Further, there is no indication in the record that petitioners failed to cooperate with the CSE. Accordingly, in the absence of any other equitable factor, I find that the parent's claim for tuition reimbursement is supported by equitable considerations.

        However, before I may award tuition reimbursement, I must address the final issue of pendency. Petitioners argue that the Promise School is their son's pendency placement for the 2002-03 school year based on the IEP developed and recommended by respondent, and accepted by petitioners for their son's 2001-02 placement (Petitioners' Memorandum of Law, pp. 21-23, Exhibit 28). They amplify their position by citing the Promise School as the provider of the special education related services listed on the IEP, and indicating that the Promise School was also the student's 2002 summer school placement (Exhibit 50). Petitioners reiterate the IEP's LRE statement that their son required special education support and related services in an integrated setting to allow participation in age appropriate activities. Respondent contends that no such pendency placement exists because the Promise School program for year two was substantially different from that of year one (Transcript p. 926, Respondent's Memorandum of Law, pp. 24-26).

        The pendency provisions of the IDEA, the New York State Education Law and Regulations of the Commissioner of Education require that a child remain in his or her then current placement, unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; Education Law § 4404[4], 8 NYCRR 200.5[l] and 200.16[g][3][preschool students]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships; (Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). It does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16).

        Under the IDEA, the inquiry focuses on identifying the child’s then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ. of Arlington Cent. Sch. Dist., 86 F.3d 354, 358-359 [S.D.N.Y. 2000] affd 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). It may or may not turn out to be the same placement that is determined to be the appropriate educational placement for the child after the conclusion of a hearing on the merits of the recommended program for that year. The U.S. Department of Education has opined that a child's then current placement would " … generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, EHLR 211:481; see, Susquenita Sch. Dist. v Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview School Dist., 811 F.2d 1307 [9th Cir. 1987]). The U.S. Department of Education has also stated that 34 CFR 300.512 (a) requires a board of education to continue to provide the special education and related services which it had previously provided to a child in a preschool day care program during the pendency of a challenge by the child's parents to the board of education's offer of a kindergarten placement to the child (Letter to Harris, 12-30-93, 20 IDELR 1225).

        Here the child was placed in the Promise School for the 2001-02 school year pursuant to two IEPs (Exhibit 28, 50) that had been prepared by respondent's CPSE in fulfillment of respondent's obligation to provide him with special education services. Petitioner had accepted respondent's CPSE's recommendations to provide special education support and related services in an integrated setting to allow participation in age appropriate activities at the Promise School. Therefore, I find that the Promise School was the child's mutually agreed upon placement when this proceeding was commenced by petitioners' request for an impartial hearing to review the CSE's recommendation for the child's placement for the 2002-03 school year (Application of a Child with a Disability, Appeal No. 96-48), subject to the determination that the program carried out in year one is not substantially different from the program delivered in year two.

        The Promise School is a private preschool that uses ABA protocols to provide educational interventions designed to ultimately transition students to the regular school classroom. ABA therapy is an ongoing behavioral program with multiple levels, carried out in various settings. Discrete trials using behavior modification to acquire skills are eventually followed by the generalization of learned skills to natural settings. Ideally, skills acquired from successful discrete trials would then be transferred to the home and community environments. In the instant case, the student participated in discrete trials during his first year at the Promise School for approximately two hours per day. During year two, the year in question, he progressed to a reduced period of discrete trials and significant exposure to structured and supported integrated settings. Both the integrated regular preschool setting and the STAR classroom approximated the natural settings the child needed to generalize skills learned from discrete trials. They also behaved as stepping-stones or environmental transitions to the regular kindergarten classroom.

        Therefore, I agree with both the Promise School staff and experts recommending the child's continuation at the Promise School based on the provision of appropriate services. The child's second year experience was not the result of his being a participant in a new and separate program within the Promise School. The child's participation in year two at the Promise School was evidence that he had progressed to the next phase of the ABA protocol within one unified program at the Promise School. Accordingly, this placement was consistent with state and federal stay-put provisions (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514[a]; Education Law § 4404[4]; 8 NYCRR 200.5[l] and 200.16[g][3]), and is the student's pendency placement for the 2002-03 school year. Respondent is obligated to pay for the child's tuition and transportation services for the entire twelve-month school year (Application of a Child with a Disability, Appeal No. 0063; Application of a Child with a Disability, Appeal No. 96-48) on the bases of pendency and respondent's failure to provide the child with a FAPE.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent specified within, and;

IT IS FURTHER ORDERED that respondent shall classify the child as autistic, and shall reimburse petitioners for the cost of their son's tuition and related transportation expenses at the Promise School during the 2002-03 school year, upon petitioners' presentation to respondent of proof of such payment.