Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Bethpage Union Free School District
Long Island Advocates, Inc., attorney for petitioner, Lynn A. Iacona, Esq., of counsel
Jaspan Schlesinger Hoffman LLP, attorney for respondent, Carol A. Melnick, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that the placement recommended by respondent's Committee on Special Education (CSE) for her son for the 2003-04 school year was appropriate. She also appeals from the hearing officer's determination that her son was not entitled to transportation services to an out-of-district after-school program in which she unilaterally placed him for the 2003-04 school year. The appeal must be dismissed.
Initially, I will address a procedural matter. Petitioner requests that I consider a school observation report annexed to her petition that was not part of the hearing record (Pet. Ex. A). Respondent argues that the report should not be considered because the observation was conducted while the hearing was pending, and, therefore, was available at the time of the hearing. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence were unavailable at the time of the hearing, or when such evidence is necessary to enable the State Review Officer to render a decision (Application of the Bd. of Educ., Appeal No. 02-024). Petitioner alleges that while the observation of her son was conducted in February 2004, the corresponding report did not become available until May 2004 (Pet. ¶¶ 110-11). Under the circumstances, I will exercise my discretion and accept the report.
Petitioner's son was ten years old and attending The Hagedorn Little Village School (Little Village) in Seaford, New York when the hearing began in February 2004. Little Village, a private school, has a school-age program that services children with disabilities to age 12 (Tr. p. 282). The student is classified as having autism and his classification is not in dispute.
In fall 2001, when the student was in the second grade, he moved with his family to Nevada (Tr. p. 460). Prior to the move, the student attended Little Village (Tr. p. 286). His placements in Nevada included a self-contained class, considered to be an autism program, in an elementary school (Tr. pp. 460-61; Dist. Ex. 6). Additionally, because petitioner was employed, the student attended a day care program at the same elementary school, where she was provided an individual aide (Tr. pp. 462-64). Nondisabled students also attended the day care program (Tr. p. 462).
In an August 2002 neuropsychological evaluation conducted in Nevada, the evaluator reported that the student's language was echolalic and repetitive (Dist. Ex. 6). She indicated that the student's social interactions were basic and need based, and that his play was repetitive. Based upon the student's history, her observation, current and previous evaluations, and parent report, the evaluator concluded that the student met the criteria for autism. She noted that the student responded well to a structured learning environment that provided individual behavior-based interventions, and recommended that training needs focus on functional communication skills, daily living skills, play behavior and building of social skills.
The student returned with his family to respondent's district just prior to the 2002-03 school year for third grade (Tr. p. 464). Respondent's CSE met in September 2002, classified the student as multiply disabled and recommended that he be placed in a 12:1+4 class at Little Village (Dist. Ex. 7). The CSE also recommended that the student receive speech-language and occupational therapy (id.). The student attended Little Village as well as its after-school respite program for the 2002-03 school year (Tr. pp. 293, 464). The respite program offered recreational, social, self-help and leisure time activities (Parent Ex. O). It provided an opportunity for disabled children to interact with their peers in a supervised recreation environment (id.). Respondent transported the student from home to Little Village in the mornings and from Little Village to home after the respite program (Tr. pp. 230-31).
In January 2003, at petitioner's request, the student was placed in a different 12:1+4 class at Little Village (Tr. pp. 79, 485-86). In an annual speech-language evaluation conducted that month, the speech-language therapist from Little Village reported that the student scored in the first percentile on tests measuring his receptive language, expressive language and speech production skills (Dist. Ex. 10). While the student demonstrated progress, he continued to exhibit significant delays in overall language development. The speech-language therapist noted that the student's ability to greet familiar adults improved, though verbal prompts were typically provided. She further noted that the student withheld language in various situations and required extensive prompting to use language. The student's verbalizations ranged from one to four words in length and consisted of core vocabulary words, familiar phrases and echolalic responses. The speech-language therapist noted that the student's eye contact and attending skills were fleeting during goal work. His eye contact was best maintained when positive reinforcement was provided. The speech-language therapist indicated that therapy sessions focused on increasing verbal output by facilitating the student's spontaneous language with the use of visual supports during daily activities. Therapy sessions also provided models for language development and opportunities for communicative interactions, expanding the student's utterances.
Also in January 2003, the Health Sciences Center at Stony Brook University evaluated the student to clarify his diagnosis and develop educational and service recommendations (Dist. Ex. 11). The evaluator administered the Autism Diagnostic Observation Schedule-Generic (ADOS-G) which revealed elevated scores for impairment in use of language, gestures and social interaction skills consistent with an autistic disorder. While the student's eye contact was fairly appropriate throughout the session, he was easily distracted and lost interest quickly, especially during less structured activities. The evaluator indicated that the student's speech consisted of single words, two-word phrases and sentences consisting of four to five words. The majority of the student's spontaneous speech was to label objects, describe his play actions and make requests. He did not answer direct questions or engage in reciprocal conversation. The student's social interaction and play behavior was better when self-initiated or when related to something of interest to him, as compared to when the evaluator attempted to engage him. The evaluator observed emerging pretend play skills and spontaneous participation in a social routine. She recommended that the student's classification be changed to autism. She also recommended that the student be placed in a highly structured educational setting which emphasized generalization of skills to group and nonacademic settings and which implemented applied behavioral analysis (ABA). She suggested visual supports to address the student's auditory processing deficits. She also suggested the use of an individual reward system. Additionally, the evaluator recommended continued speech-language and occupational therapy. She also encouraged continued involvement in extracurricular activities within the community, such as swimming lessons or bowling as well as play skills training classes or therapy to promote effective peer socialization and language pragmatics, including initiating play and maintenance of interactive play directed by a professional familiar with autism spectrum disorders.
The student was observed at the end of January 2003 during circle time by a teacher at Little Village who reported that during the 20-minute lesson, the student did not use any spontaneous language (Parent Ex. M). When asked questions, the student did not respond unless prompted with a verbal cue.
In a January 2003 annual educational evaluation, the student's teachers reported that the student transferred to a different 12:1+4 class at Little Village at the end of January 2003 (Parent Ex. C). The teachers indicated that the student followed classroom routines with minimal verbal direction and occasional physical prompts. They noted that the student responded most favorably to a multisensory approach. They further noted that the student displayed a variable attention span in both group and individual settings. The student required adult supervision to play with toys appropriately. He did not use language consistently in the classroom. Although there had been a slight increase in the student's spontaneous utterances, he rarely used language spontaneously during the day. He was able to follow familiar directions, but required visual and verbal cues to follow multistep and unfamiliar directions. He had difficulty processing questions and required verbal prompts to respond appropriately.
In a March 2003 occupational therapy evaluation, the evaluator noted that the student demonstrated spontaneous social eye contact and communicated using a few spontaneous verbal phrases (Dist. Ex. 12). She further noted that the student required continuous verbal and physical prompting to continue engagement in group play. He also required verbal guiding to participate socially with his peers. The evaluator recommended that the student continue to receive individual occupational therapy during the 2003-04 school year.
Respondent's CSE met in March 2003 for the student's annual review (Dist. Ex. 13). It changed the student's classification to autism and recommended that the student continue to attend Little Village for the 2003-04 school year (id.). The CSE also accepted the student's speech-language therapist's recommendation that speech-language therapy include a small group session to increase the student's pragmatic skills and social interactions with peers by providing an opportunity to learn through peer modeling (Parent Ex. L). The CSE met again at the end of August 2003 to consider petitioner's request for transportation for her son to an after-school program at the Mid-Island Y JCC (JCC) in Plainview, New York (Tr. p. 197; Dist. Ex. 18). At the meeting the CSE determined that an after-school program was not necessary to provide the student with a free appropriate public education (FAPE) (Tr. p. 199; Dist. Ex. 21). The following day, petitioner requested an impartial hearing seeking transportation for her son to before- and after-school programs (Dist. Ex. 19). Petitioner then enrolled her son in the JCC program at her own expense, and her son began attending the program in September 2003.
In an independent educational evaluation conducted at the end of September 2003, the evaluator reported that the student was cooperative and compliant for the duration of the testing, although he required frequent refocusing (Parent Ex. A). His verbalizations consisted of short phrases of approximately three to five words. The student's reading, mathematics, oral expression, broad knowledge and writing skills fell between the preschool and kindergarten levels. His listening comprehension skills were limited to following one-step and a few two-step verbal directions. The evaluator recommended that the student continue to attend the after-school program at the JCC where he had the opportunity to interact with typically developing peers.
On October 1, 2003, an independent psychological evaluation of the student was conducted (Parent Ex. B). The evaluator reported that the student was uncooperative and behaved inappropriately during the evaluation. The student did not establish a rapport with the evaluator, his eye contact was minimal, and boundaries and limits, to which he did not always respond, needed to be reinforced intermittently during the evaluation. The student was overly active, his attention span was short and he was easily frustrated. He scored in the mentally deficient range of intellectual functioning on the Stanford-Binet Intelligence Scale-Fourth Edition. The evaluator cautioned that such results might not be an accurate estimate of the student's true ability because the student was uncooperative during the testing and his score was based on a partial composite. She noted, however, that the student's scores were consistent with scores obtained in evaluations conducted in spring 1999 and fall 2001. The student's adaptive functioning as measured by the Vineland Adaptive Behavior Scales-Interview Edition was in the low range, considered to be a severe deficit. The evaluator noted that the student's adaptive functioning was consistent with his cognitive functioning. The evaluator also noted that the student's difficulty with conversation and reasoning affected his socialization skills and the opportunity to socialize would help the student improve his verbal skills. She further noted that the student was in need of supervised socialization to help him learn how to interact appropriately with both children and adults, and recommended that the student continue in a supervised socialization program to address his social and emotional needs. She indicated that previous evaluations recommended extracurricular activities within the community, and noted that the student appeared to enjoy small, structured activities involving sports designed for children with special needs. She also noted that his language improved enough so that he was able to benefit from social skills training classes. The evaluator indicated that the recommended socialization appeared to be available at the JCC program and that it would be beneficial for the student to continue in the program so that he had continuity and familiarity in his life.
In October 2003, the hearing officer heard arguments on respondent's motion to dismiss petitioner's request for transportation and denied the motion in a decision dated December 1, 2003 (IHO Dec. p. 1).
In early February 2004, the student's teacher prepared an educational progress report (Parent Ex. R). She indicated that the student responded most favorably to a multisensory approach, and that he learned best in a small, structured environment with adult intervention to assist him throughout the day. He displayed a limited attention span in both group and individual settings. The teacher noted that the student interacted appropriately with adults in the school environment and that his interactions with his peers was improving. The student expanded his toy selections and enjoyed engaging his peers with cars and trucks, during which time he independently exchanged short verbal comments with his peers. His understanding of social rules during a game situation had improved since September 2003. He required adult intervention for both attention and participation during more structured play scenarios, such as board games or organized sports. The teacher also reported that the student progressed in his ability to respond to questions related to personal information, identifying actions, quantitative concepts and simple questions related to a story that was read to him when paired with a visual cue. The student was currently working on increasing spontaneous language throughout the school day.
The hearing began on February 2, 2004 and concluded on March 26, 2004 after four sessions. The hearing officer rendered his decision on June 14, 2004. He found that the program recommended by respondent for the student for the 2003-04 school year was appropriate. Accordingly, he denied petitioner's request for reimbursement for the costs of the after-school program at the JCC and associated transportation. With respect to petitioner's claim that her son was entitled to transportation to the JCC program because respondent denied him access to extracurricular activities, the hearing officer found that there was no evidence in the record to show that the student was denied access to extracurricular activities.
Petitioner appeals from the hearing officer's decision. She claims that the CSE's failure to recommend therapeutic recreation services denied her son a FAPE, and that therefore, she is entitled to reimbursement for the costs of the JCC program and associated transportation. Additionally, petitioner claims that respondent's refusal to provide her son with transportation services from Little Village to the JCC denied him meaningful access to extracurricular activities.
While petitioner does not dispute the appropriateness of the program at Little Village, she asserts that her son was denied a FAPE because the recommended program did not include an after-school therapeutic recreation program with typically developing peers to address her son's social and language needs. Respondent 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 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, respondent must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the individualized education program (IEP) that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]). It must be 'likely to produce progress, not regression,' (Walczak, 142 F.3d at 130; M.S., 231 F.3d at 103). The child's progress must be viewed in light of the limitations of the child's disability (Rowley, 458 U.S. at 202; Mrs. B., 103 F.3d at 1121). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
The hearing officer found that respondent met its burden of demonstrating the appropriateness of the program recommended by its CSE for the student for the 2003-04 school year. I agree. The record shows that the student meets the criteria for an autistic disorder (Dist. Ex. 11). His cognitive functioning is significantly delayed and his adaptive functioning is consistent with his cognitive functioning (Parent Ex. B). Additionally, he requires interventions to address his language and social skills development (Dist. Ex. 11). As noted above, when respondent's CSE met in March 2003 to develop the student's IEP for the 2003-04 school year, it recommended that the student be placed in a 12:1+4 class at Little Village with related services of speech-language and occupational therapy (Dist. Ex. 13). The IEP provided for transportation to and from Little Village (id.). Also as noted above, when the CSE met again in August 2003 to address petitioner's request for transportation to the JCC, it continued to recommend the same program it recommended in March 2003. In addition, it determined that an after-school program was not necessary to provide the student with a FAPE, and, therefore, did not recommend an after-school program for the student for the 2003-04 school year (Tr. p. 199; Dist. Ex. 21).
The IEP developed for the student for the 2003-04 school year also included social goals to enhance the student's interpersonal relationships and improve attending behaviors. Corresponding instructional objectives included engaging in cooperative play with adult supervision and encouragement, playing with two to three peers with adult supervision, and attending in one-to-one and group settings. The IEP also included speech-language goals to increase the student's attending and pragmatic skills. Corresponding objectives included initiating appropriate greetings with peers and familiar adults, maintaining eye contact during social interactions, increasing verbal turn taking skills, gaining attention of others appropriately, and using language spontaneously for a variety of pragmatic functions. Occupational therapy objectives included cooperating during a rhythmic hand pattern game for five minutes and setting up an appropriate board game.
The classroom teacher testified that between January 2003, when the student joined her class, and the end of the 2002-03 school year, the student made progress as his comfort level increased (Tr. p. 81). She indicated that the student had mastered his objective relating to engaging in parallel play in June 2003 (Tr. p. 90). She further testified that between January and June 2003, rather than always choosing to play with a car, the student chose more toys independently (Tr. p. 101). Additionally, the classroom teacher observed growth with respect to the student's ability to use cars more appropriately (Tr. p. 126).
The classroom teacher further testified that she continued to work with the student on his attending skills (Tr. p. 90). She indicated that a considerable part of the day involved working with the student to increase his ability to attend in one-to-one and group situations (Tr. p. 108). She also testified that she continued to work with the student to increase his length of utterances, which, she noted was progressing (Tr. pp. 95, 111). The classroom teacher also noted that the student initiated greetings with adults independently and with peers when prompted (Tr. pp. 97-98). She indicated that she continued to work with the student on initiating greetings independently, as well as maintaining eye contact, verbal turn taking and spontaneous language (Tr. pp. 98, 112).
The classroom teacher opined that the school day program at Little Village was appropriate to meet the student's needs (Tr. p. 116). She testified that she worked together with her staff and the student's therapists to provide the student with an educationally sound environment that was appropriate for him (id.). Respondent's director of pupil personnel services testified that the student did not require the JCC program in order to benefit from his IEP (Tr. p. 208). He noted that the student made progress during the 2002-03 school year without having attended the JCC program (id.). Respondent's psychologist also testified as to the student's progress during the 2002-03 school year (Tr. pp. 373-74). She indicated that the goals and objectives that were developed for the student at the March 2003 CSE meeting were appropriate for him (Tr. p. 373). Furthermore, the student's mother testified that the Little Village program was appropriate for her son (Tr. pp. 530-31) and indicated that it was meeting his needs (Dist. Ex. 23).
Additionally, the only evaluators who recommended that the student attend the JCC after-school program evaluated the student at the end of September and early October 2003, after the student had attended the program for less than one month and after the August 2003 CSE meeting (Parent Exs. A, B). The evaluator who conducted the educational evaluation in September 2003, testified that she did not review any literature from the JCC, that she did not speak to anyone at the JCC, and that her recommendation was based upon information petitioner provided her (Tr. p. 622).
I note that the program recommended by the CSE for the student for the 2003-04 school year included many of the recommendations set forth in the January 2003 evaluation conducted at Stony Brook (see Dist. Ex. 11). The CSE changed the student's classification to autism (Dist. Ex. 13). It recommended a group speech-language session (id.) and the speech-language therapist offered to incorporate ABA techniques on a trial basis during therapy (Tr. p. 370). The IEP included goals to enhance the student's socialization and pragmatic language skills (Dist. Ex. 18). Further, Little Village offered an after-school respite program, as well as a range and variety of parent training options (Parent Ex. O; Tr. pp. 295-98). Additionally, I note that the record shows that the student was making progress toward achieving his 2003-04 IEP goals. The classroom teacher testified that the student was independent in his ability to find a toy (Tr. p. 120), that he spontaneously interacted with two to three peers to whom he gravitated (Tr. p. 121), that he was beginning to engage in cooperative play with two to three peers, and that he played cooperatively with two to three peers with adult supervision (Tr. pp. 108-09).
Based upon the information before me, I find that the program recommended by respondent's CSE at the March and August 2003 meetings at Little Village was, at the time it was formulated, reasonably calculated to confer educational benefits to the student and likely to produce progress. Having so determined, it is not necessary that I address petitioner's request for reimbursement for the costs of the JCC program and associated transportation.
Petitioner also claims that respondent's refusal to transport her son from Little Village to the JCC denied him meaningful access to extracurricular activities as required by 34 C.F.R. § 300.306. Petitioner asserts that her son was excluded from the Discovery program, which, she alleges, was the only after-school program sponsored by the district for which her son was eligible. She claims that, as a result, respondent is obligated to transport her son to the JCC to afford him meaningful and equal access to extracurricular activities.
Pursuant to 34 C.F.R. § 300.306 each public agency shall take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities (see 8 NYCRR 200.2[b]). The regulatory requirement that students with disabilities be afforded an equal opportunity for participation does not require that the services and activities actually be provided to students with disabilities, but merely that school districts take steps to afford them an equal opportunity for participation (Letter to Anonymous, 17 IDELR 180 [OSEP 1990]). I am unable to find, based upon the information before me, that respondent denied the student meaningful and equal access to extracurricular activities. Respondent asserts that at the elementary level it offers academic intervention services for students who require extra help, and a Math club for students who choose to participate (Answer ¶ 49). It claims that it would have made any necessary accommodations had the student participated in one of those programs (id.). Additionally, the record shows that respondent provided the student access to Little Village's after-school respite program during the 2002-03 school year by providing him transportation home from Little Village after that program (Tr. pp. 532-33; Dist. Ex. 8). The director of pupil personnel services testified that it was his understanding that the student would participate in the respite program for the 2003-04 school year (Tr. p. 201).
Finally, petitioner claims that, at the very least, transportation to the JCC should be added to her son's IEP as a related service and that she should be reimbursed for transportation costs she has incurred to date. Federal regulation defines related services as transportation and other supportive services as are required to assist a child with a disability to benefit from special education (34 C.F.R. § 300.24). In New York State, transportation is included in the definition of special education. Pursuant to state law, special education "means specially designed instruction . . . and transportation to meet the unique needs of a child with a disability" (N.Y. Educ. Law § 4401). There is nothing in the record to show that the student required transportation to the JCC to benefit from his instruction at Little Village or that he required transportation to the JCC to meet his unique needs. As I have already found, respondent met its burden of demonstrating that the school day program at Little Village was appropriate.
THE APPEAL IS DISMISSED.