03-061

       Petitioners appeal from an impartial hearing officer's decision finding that respondent had offered their son a free appropriate public education (FAPE) during 2002-03 school year at a non-public, pre-school placement without the provision of additional home-based Applied Behavior Analysis (ABA) therapy. The appeal must be dismissed.

        Petitioners' son was approximately four and one-half years old and attending pre-school at Prime Time for Kids (Prime Time), respondent's non-public, pre-school placement, at the commencement of the impartial hearing on April 15, 2003. With an undisputed classification as a pre-school child with a disability (Transcript pp. 28, 29) based on a diagnosis of autism (Exhibit 23), the student attended a full day ABA therapy program during the 2002-03 school year.

        In September 2000, at 21 months of age, the child received early intervention services which included special instruction in attending, problem solving, and pretend play skills, in addition to speech and occupational therapy (Exhibit 3). In June 2001, the child produced a score of 64 on the Vineland Adaptive Behavior Scales (Vineland); this score was interpreted as being in the mild mentally deficient range (Exhibits 18, 46). By January 2002, when the child had a chronological age of approximately 37 months, he received a mental development index of less than 50, or a 14-month-old age equivalent, on the Bayley Scale of Infant Development-2nd Edition (Bayley Scales) (Exhibits 27, 46). The grasping sub-test of the Peabody Developmental Motor Scales-2nd Edition (PDMS-2) revealed a ranking in the fifth percentile, or a 14-month-old age equivalent, while the visual motor integration PDMS-2 sub test revealed the same percentile, but projected a 21-month-old age equivalent (Exhibits 32, 46). A severe language disorder was diagnosed as well (Exhibits 34, 46).

        In August 2002, just prior to his enrollment at Prime Time, the student was jointly evaluated by a certified school psychologist and a developmental pediatrician; at this time, the student was three years, eight months old. The August 2002 evaluation tools included: clinical and play observations, parent interview, physical and neurological examinations, and the Vineland. The Bayley Scales and the Stanford-Binet, 4th Edition, were attempted, but incapable of being completed due to the child's lack of cooperation with testing demands. His overall adaptive functioning as assessed through the Vineland was considered to be low. He also scored an index of 35 on the Childhood Autistic Rating Scale (CARS), which reflected autistic spectrum disorder in the moderate range.

        The evaluators diagnosed the child with autism, expressive, receptive, and pragmatic language disorder, fine motor-graphomotor skills deficit, and auditory processing disorder. Recommendations included therapy three hundred sixty five days a year, with a minimum of twenty hours per week of home based ABA therapy, to be increased at a later date, if necessary. Three hours per week of ABA training for the parents was also recommended in order for them to learn techniques to help their child generalize what he was learning in the 1:1 ABA setting to home and community environments. Attendance at Prime Time was recommended for 1:1 ABA therapy, generalization of his ABA instruction to the school environment, and socialization. Very specific recommendations regarding speech-language therapy, auditory integration training, occupational therapy, and physical therapy were also included. Monthly interdisciplinary meetings between the student's home and school therapists, and parents and teachers to review progress and modify the program were recommended as well (Exhibit 38).

        At this time, the child had significant delays in speech, language, motor, social, and attentional skills, which inhibited participation in age appropriate activities (Exhibit 46) and identified him as one of the most severely involved children in the program (Transcript p. 91). Upon entering Prime Time, the student had problems associated with aggression toward teachers and peers, and transitioning from room to room (Transcript p. 104). The student needed visual modeling and tactile involvement to undertake various tasks, and needed to improve language readiness, receptive and expressive language skills, and sign language. In addition to increasing verbal output, his fine and gross motor skills, sensory processing abilities, and cognitive requisite skills required further development. The student also needed to build social, organizational, attending, and self-help skills, and to address low frustration tolerance, oppositional behavior, and significant impulsivity behaviors (Exhibits 42, 46).        On September 20, 2002, petitioners notified respondent that their son needed additional services pursuant to recommendations made by the developmental pediatrician and school psychologist (Exhibit 39). Respondent's Committee on Special Education (CSE) created an individualized education program (IEP) for the student that recommended a special class with a 6:1:1 student to staff ratio and the assistance of an aide. It recommended individual occupational therapy and physical therapy three times a week for 30-minute sessions, and parent training and counseling regarding effective behavior management techniques to generalize in the home. All services were provided with the exception of scheduled speech-language therapy, due to the district's inability to hire a speech therapist (Exhibits 42, 46).

        While there was no dispute as to diagnosis, classification, or type of therapy to be applied, petitioners did not agree with the IEP's recommendations. By letter dated December 18, 2002, petitioners requested an impartial hearing, objecting to the IEPs developed during the period commencing September 2002 and terminating September 2003 (Transcript pp. 5, 9) and seeking a FAPE in their son's least restrictive environment (LRE). Petitioners cited to deficient levels of speech-language services delivered, and the absence of an assistive technology evaluation, a Functional Behavioral Assessment (FBA) with resulting Behavior Intervention Plans (BIPs), and data regarding the extent of the child's non-participation in regular education. Petitioners also noted the absence of the acknowledgement and rationale for respondent's rejection of their requests, and the absence of a regular education teacher at the CPSE meeting; they also challenged the IEP's goals (Petition Exhibit 1). In addition to seeking extended day ABA therapy in contravention of alleged district and county policy, petitioners requested reimbursement for additional services they already provided to the child.

        At an impartial hearing commencing April 15, 2003 and terminating May 9, 2003, petitioners emphasized their son's need for home-based ABA hours in addition to current center-based ABA therapy. They reasserted their objections to the IEP (Transcript pp. 20-26), allegedly denying their child a FAPE. The hearing officer rendered his decision on June 17, 2003, and found that respondent's CPSE had met its obligation to provide the child with a FAPE at Prime Time. He found the IEPs supported by oral and written testimony, and in compliance with State and federal law, but denied funding for home-based or after school services. Respondent was ordered to comply with its IEP obligation to provide speech and language services, and to direct the CPSE to immediately evaluate the student for assistive technology, amending the IEP to reflect any changes made thereafter.

        Petitioners seek a determination that respondent has denied their son a FAPE in his LRE. They contend that the IEP has procedural and substantive violations, and therefore, is not reasonably calculated to promote meaningful educational progress. Petitioners also seek prospective funding for extended day ABA and speech services.

        The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a 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). 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 (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401(11); 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. §300.342[a]).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Educ. Dept. Rep. 487 [1983]). 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 LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). The initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent.Sch.Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

        Initially, I will address the assertions of procedural violations. In the instant case, petitioners challenge the appropriateness of the goals, quoting the special education teacher as supporting this assessment (Transcript pp. 133-134). The selected testimony offered by the special education teacher does not substantiate that the current goals do not reflect the child's abilities. This testimony was taken out of context as it referred to the goals developed by the staff at the pre-school the child attended prior to Prime Time. As originally developed, the goals were inappropriate and unrealistic for the student. To her credit, the Prime Time special education teacher modified the goals to reflect her student's capabilities and these goals were reflected on the CSE's IEP (Transcript pp. 106, 115, Exhibits 42, 46), in full compliance with the regulations (20 U.S.C. 1414[d][3][ii]; 34 C.F.R. 300.346[b]; 8 NYCRR 200.4[f][ii]).

        Petitioners next allege that the hearing officer ignored the testimony of the special education teacher and the developmental pediatrician. A complete review of the record reveals that the hearing officer's finding that respondent provided a FAPE to the student is consistent with oral and written testimony and the application of State and federal law (Bd. of Educ. v. Rowley, 458 US 176 [1982]). Thus, this allegation is without merit.

        Petitioners further argue that respondent's failure to note their request for extended ABA hours and speech-language therapy on the IEP, and to provide prior, written and substantiated notice of refusal of these services violated 34 C.F.R. 300.503(b) requirements. The record referred to the omission of prior, adequate, written notice regarding respondent's rejection of extended day ABA hours and speech therapy as not being deliberate (Transcript p. 82). Nevertheless, failure to notify is per se inconsistent with the requirements of the regulations (20 U.S.C. 1415[b][3]; 34 C.F.R. 300.503[a]; 8 NYCRR 200.5[a]). Therefore, I find respondent's actions violated petitioners' procedural rights in this respect.

        This, however, does not end the inquiry. I must now determine if this procedural violation resulted in a denial of FAPE (see, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]; Application of the Bd. of Educ., Appeal No. 01-047), i.e., whether the violation resulted in a loss of educational opportunity (see, e.g., Evans, 930 F.Supp. at 93; Application of a Child with a Disability, Appeal No. 01-061; Application of a Child with a Disability, Appeal No. 01-046) or educational benefit (see, e.g., Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002.]) for the student, or seriously infringed on the parents' participation in the creation or formulation of the IEP (see, e.g., Pascarella, 153 F.Supp.2d at 153; Briere v. Fair Haven Grade Sch. Dist. 948 F.Supp. 1242 [D.Vt. 1996]; Application of a Child with a Disability, Appeal No. 96-31). I conclude that it did not.

        I note here that in addition to their frequent contact with the teaching staff (Transcript pp. 59-60,102-103, 344, 346), petitioners participated in the CSE meetings prior to the generation of the October 2002 and January 2003 IEPs (Exhibits 42, 46). In reality, petitioners were also well aware that respondent refused to extend the ABA hours because the additional therapy was to be home-based. Therefore, respondent's failure to provide written notice as required under federal and State regulations was a procedural violation which did not result in a loss of educational benefit to the student.

        Finally, I address petitioners' challenge to respondent's obligation to provide a FAPE for the student. Petitioners argue that their son has not received an appropriate education because he his level of educational progress has not reached the standard announced in Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]. In the instant case, the record consistently supported the diagnosis of autism and intensive ABA therapy (Exhibits 23, 38). The student's developmental pediatrician, school psychologist, neurologist and special education teacher were in full agreement that the ABA therapy should be provided during the school day and extended to after school and weekend hours, with the recommended period of additional hours ranging from a floor of ten hours to a ceiling of forty hours per week (Transcript pp. 81,139, 252, Exhibits 23, 38). Respondent agrees with the use of ABA therapy, but has limited its application to school-day hours only. Supporting this argument is the CSE Chairperson, who has testified that the child's needs are being met at Prime Time (Transcript p. 84).

        The question then focuses on how much ABA therapy is required under the law to provide a meaningful educational experience for the child, fully recognizing that the Rowley standard does not support maximizing a child's educational potential (Bd. of Educ. v. Rowley, 458 US 176, 189, 200, 207 [1982]). Initially, I look to an approximate needs baseline, in order to assess the degree of progress made. Here the child enrolled at Prime Time with significant behavior and transition needs not identified by the prior pre-school, and unattainable, aggrandized goals created by the prior pre-school (Transcript p. 174). The Prime Time special education teacher was able to elicit minimal progress in pre-academic and study skills, communication, transitioning, cooperation, reduced aggression, and reinforcer effectiveness; although referred to by the special education teacher as limited progress, she also testified that it was progress prerequisite to the attainment of more academic skills (Transcript pp. 104, 110, 161,172, Exhibit 48). Consequently, even though the student was not able to master many of his goals, he was able to traverse the first major stepping-stone in his academic career. Given the child's severe disabilities, that progress is nothing short of meaningful, and is consistent with the Rowley standard. Therefore, for the period ending September 2003 (Transcript p. 8), respondent fulfilled its obligation to provide the student with a FAPE. Prospective funding for home-based therapy beyond the period addressed within is not relief that I may grant, and is denied (Application of a Child with a Disability, Appeal No. 00-039).

        However, I remind respondent that it must continue to offer sufficient education services to afford petitioners' son a reasonable chance of achieving his IEP annual goals and objectives. Respondent must regularly look to the way in which evaluations, recommendations, and current levels of goal attainment affect appropriate placement. In point of fact, now that the child has attained minimal behavioral and transitioning goals, it is entirely possible that his ABA therapy program may need modification to promote generalization skills from his center-based environment to home and community settings.

        Accordingly, I find that respondent has met its burden of proving that it provided an appropriate educational program and a FAPE to petitioners' son.

        I have considered petitioners' remaining claims and I do not find evidence in the record to support them.

THE APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is hereby sustained.