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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 New Hyde Park-Garden City Park Union Free School District


Long Island Advocates, Inc., attorneys for petitioners, Tanya J. Chor, Esq., of counsel

Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, attorneys for respondent, Richard J. Nicolello, Esq., of counsel


         Petitioners appeal from an impartial hearing officer’s decision, which determined that the program recommended for their son by the New Hyde Park-Garden City Park Union Free School District (respondent) for the 2002-2003 school year was appropriate. They seek an order directing respondent to provide Applied Behavioral Analysis services at home, to enable the student to transfer skills from the classroom to the home environment. The appeal must be dismissed.

        Petitioners submit two additional documents with their petition that were not submitted into evidence at the hearing (Petition Attachments C and G). Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ., Appeal No. 02-024). Attachment C consists of 13 staff incident reports regarding the student’s aggressive behaviors during the period of January to June 2002, which relate to the reason for the student’s seven-day suspension in April 2002. These reports were forwarded to petitioners’ attorney on February 3, 2003 from the Hagedorn Little Village School (Little Village), pursuant to the attorney’s request dated January 17, 2003. Attachment G is an October 22, 2002 letter from petitioners’ counsel to respondent asking for records for the last 2 years regarding the student. It is my understanding that the reports contained in Appendix C were not in respondent’s records, which had been provided pursuant to the October 2002 letter. Petitioners’ counsel requested the records from Little Village after the first day of hearing, but did not receive them until after the hearing had concluded on February 5, 2003. Respondent did not object to submission of the documents, merely noting that they were not part of the record, and the documents are related to petitioners’ assertion that a functional behavior analysis and behavioral intervention plan are necessary elements of the current individualized education program (IEP). I will exercise my discretion and accept the documents (Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024).

        The student is a six-year-old boy with a diagnosis of autism. The record suggests that he may also be severely mentally retarded. As a preschooler, he attended Little Village, a center based program, from the summer of 2000 through August 2002. During the 2001-2002 school year, he attended a full-day class that consisted of a half-day of Applied Behavioral Analysis (ABA) therapy and a half-day of socialization, and also received speech and occupational therapy as related services. In October 2001, the student began receiving one hour, five times a week, of home-based ABA services to supplement his center based program. It was reported in January 2002 that the student’s behavior was deteriorating at school and at home. A 1:1 aide was assigned to the student at school, and home-based ABA services were increased to ten hours per week. In April 2002, Little Village suspended the student for seven school days, due to difficulty in managing his behaviors. Other possible placements were explored but none could be located, and he returned to Little Village through August 2002. In the spring of 2002, the Committee on Special Education (CSE) and petitioners met to consider a September 2002 placement for the student. The CSE agreed with petitioners’ request to place the student at the Board of Cooperative Educational Services (BOCES), because it provided a very structured setting, and had a more intensive discrete trial and ABA program than Little Village.

        At the time of the hearing, the student was attending a 6:1:2 ABA class at the BOCES for the 2002-2003 school year. He was also receiving speech and language therapy (five times a week) and occupational therapy (two times a week) as related services. While petitioners had initially accepted respondent’s recommended program, on November 7, 2002 petitioners requested home-based ABA services after school hours to improve the student’s transfer of skills from the classroom to home. A CSE review was held on November 21, 2002. The CSE did not recommend additional ABA services at home, but recommended the addition of parent training for one hour per week to the student’s IEP, and subsequently offered to increase the parent training to two hours per week (Transcript p. 101).

        Petitioners requested an impartial hearing on December 6, 2002, to review the denial of their request for home-based ABA services. Petitioners also asserted that the student’s IEP was insufficient because it did not contain an adequate functional behavior assessment (FBA) and behavioral intervention plan (BIP), although petitioners did not otherwise challenge the sufficiency of the IEP services or goals, and did not specifically seek an order directing respondent to perform an FBA and develop a BIP. Petitioners alleged that a formal behavior assessment and plan were essential to providing appropriate guidance to the parents during the parent training sessions to apply ABA techniques at home. Petitioners further alleged that the need for the FBA/BIP and additional ABA services was exacerbated because, during the prior school year, Little Village’s program was also deficient due to lack of an FBA and BIP. The hearing began on January 16, 2003, and concluded on February 5, 2003.

        In a decision dated March 7, 2003, the impartial hearing officer found that the student was deriving a meaningful educational benefit from the recommended program, and that his progress in learning and generalizing skills was consistent with the limitations imposed by his disability. She determined that respondent had recommended an appropriate program for the student for the 2002-2003 school year; that the parent training provided to the parents by the district social worker was consistent with 8 NYCRR 200.1(kk); and that the student did not need the additional home-based ABA services in order to obtain a meaningful educational benefit from the program provided by respondent. She therefore denied petitioners’ request for home-based ABA services. The impartial hearing officer also concluded that an FBA and BIP were not a required component of the student’s program under 8 NYCRR 200.4(d)(3), since the child was no longer experiencing behavior problems that interfered with learning. She agreed with respondent’s assertion that the student did not require a formal BIP because his behaviors were adequately managed within his program, which is itself an intensive behavioral management program.

        Petitioners assert that the impartial hearing officer erred in finding that the IEP was appropriate and denying home-based ABA services, and in concluding that an FBA and BIP are not required. 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. Florida U.F.S.D., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, 03-053; Application of a Child with a Disability, Appeal No. 02-092). 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, 189 [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 (20 U.S.C. § 1414[d]; Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-092).

        I agree with the impartial hearing officer that the student was receiving an educational benefit from the program recommended by respondent. During the 2002-2003 school year, the student’s behavior had improved dramatically and inappropriate behaviors were no longer interfering with his ability to learn. In addition to the decline in negative behaviors, the student reportedly demonstrated educational progress in the BOCES program. His special education classroom teacher testified that the student had made great gains since September, and he had not regressed in any areas (Transcript pp. 32-36). She reported that he had made progress in his ability to follow simple directions, carry out a lunchtime routine, establish eye contact when cued, copy simple drawings, use his Picture Exchange Communication System to request items, and other skills. The school psychologist stated that he had seen overall skill improvements in pre-academic and readiness skills since September 2002, and that the student had made progress toward his IEP goals. The psychologist opined that the student’s progress was within expectations, given his cognitive level (Transcript p. 125). Petitioners acknowledged that the student had made progress during the school year, although they were not satisfied with the student’s progress toward his annual goals and short term objectives. Petitioners’ special education expert testified that he had reviewed the 2002-2003 IEP and the student’s program "seems okay, but what’s missing is FBA/BIP, if he still has behavior problems, which I wouldn’t know" (Transcript p. 44). The expert was not familiar with the type of teaching being used in the student’s classroom in terms of discrete trial training or ABA (id. at p. 59).

        Petitioners are concerned because the student has not generalized skills learned in school to the home environment. Although the record indicates that the student has generalized few skills, the level of generalization appears to be consistent with his ability. In any event, a school district's obligation is to provide a child with a disability with an appropriate education; it is not required to maximize the student's potential (Bd. of Educ. v. Rowley, 458 U.S. 176, 189 [1982]). An appropriate program provides personalized instruction with sufficient support services to allow a student with a disability to benefit educationally from that instruction (id.; Application of a Child with a Disability, Appeal No. 02-074). The record before me is clear that the student has in fact exhibited educational benefit from the program, and therefore the current IEP is adequate and appropriate. While I am sympathetic to the parents' desire to have the child reach his maximum potential, it is clear that the law only requires that a school district must provide a disabled child with meaningful access to education, it does not mean that the school district is required to guarantee totally successful results (Walczak v. Florida U.F.S.D., 142 F.3d 119, 133 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-050).

        Respondent has appropriately addressed the student's need to apply skills learned in school to other settings. The student’s classroom special education teacher at BOCES uses ABA throughout the day. The student receives five half-hour sessions of discrete trials daily, and ABA principles are applied in group settings throughout the rest of the six-hour school day in an attempt to generalize skills. Additionally, the student’s program includes a parent training component in which school staff can discuss with parents strategies that have been successful with their child. The school district social worker who provides the parent training testified that she meets with the teacher to find out what goals are being worked on in class, observes the child in class, and then meets with the parents to discuss how the goals can be carried over into the home environment. (Transcript pp. 162-167]. The special education teacher also opined that, while home-based ABA could be beneficial for the student, it did not need to be provided by a teacher. Instead, the parents could be taught to administer appropriate follow-through (Transcript pp. 61-62). The teacher further stated that consistency between home and school would encourage generalization, but that such consistency could be provided by the parents (id. at pp. 62-63).

        The parents further suggest that an FBA and BIP are necessary elements of the IEP, because they would give guidance to the parents during parent training about interventions to employ to assist the student in generalizing his gains. However, functional behavioral assessments are to be conducted when students engage in behavior that impedes learning (20 USC §1414[d][3][B][i]; 8 NYCRR 200.1[r]; Application of a Child With a Disability, Appeal No. 02-98). When a student’s behavior impedes his or her learning or that of others, a CSE must consider, when appropriate, strategies, including positive behavioral interventions and supports, to address that behavior (8 NYCRR 200.1[r]). The record does not demonstrate that the student had recently engaged in behavior that impeded his learning. The record instead indicates that the student’s prior negative behavior had dramatically improved during the 2002-2003 school year, and that as of the date of the hearing his behavior was no longer interfering with his ability to learn. A FBA and BIP are therefore not essential elements of the IEP at this time.

        I also do not agree with petitioners’ contention that the parent training cannot be successfully implemented without an FBA and BIP to provide guidance to the parents on behavioral intervention. ABA is a methodology that is used not only to extinguish negative behaviors, but also to teach new skills. The ABA methodology may include breaking down a skill or task into many small steps, which the child is then taught to do in a series of discrete trials. The child's performance is carefully monitored and recorded. After the child has mastered a skill or task in the carefully controlled environment, i.e., a discrete trial, the child's teacher then attempts to have the child "generalize" his newly acquired ability, i.e., apply that ability in other settings or contexts (Application of a Child With a Disability, Appeal No. 97-68). These generalization techniques are distinct from the purpose and content of a functional behavioral analysis or behavioral intervention plan. An FBA identifies problem behaviors that interfere with learning, identifies the contextual factors that contribute to the behavior, and formulates a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that maintain it (8 NYCRR 200.1[r]; Application of the Bd. of Educ., Appeal No 02-039). The BIP develops intervention strategies to address the behavior identified in the FBA that interferes with learning (8 NYCRR 201.2[a]; Application of the Bd. of Educ., Appeal No. 02-039). An FBA and BIP are thus focused on controlling behaviors that impede learning, and are not necessarily required to employ ABA principles.

        I find that the impartial hearing officer properly concluded that the 2002-2003 IEP recommended by respondent is adequate, denied petitioners’ request for at-home ABA therapy, and declined to find that the IEP was inadequate because there was no FBA or BIP. In view of this determination, I need not address the issue of whether there was any inadequacy in the 2001-2002 school year program that resulted in a need for an FBA or BIP.


Topical Index

Educational PlacementExtended Day/Home-Based/ Residential Services
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
Special FactorsInterfering Behaviors (FBA/BIP)