Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Islip Union Free School District
O’Connor & Golder, LLP, attorney for petitioner, Arthur J. Golder, III, Esq., of counsel
Bouvier Partnership, LLP, attorney for respondent, Arthur H. Ackherhalt, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which determined that the educational program respondent's Committee on Special Education (CSE) had recommended for his daughter for the 2004-05 school year was appropriate. The appeal must be dismissed.
Petitioner's daughter was four years old when the hearing began on July 27, 2004, and her fifth birthday occurred while the hearing was in progress. She began receiving speech and language therapy through early intervention (EI) services when she was two years old (Dist. Ex. 16; Tr. p. 770). The child's mother reported that her daughter was first identified as having an autism spectrum disorder shortly before her third birthday, and that the psychologist who offered this diagnosis recommended that the child receive 20 hours per week of instruction using applied behavioral analysis (ABA) (Tr. p. 772). ABA is a teaching methodology provided through individualized sessions referred to as discrete trials, in which a student is reinforced for appropriate responses to highly specific prompts (Tr. pp. 847-51). On August 8, 2002, the Committee on Preschool Special Education (CPSE) convened and recommended classification as a preschool student with a disability (Parent Ex. 5 at p. 1), and also recommended 20 hours per week of ABA services to be provided in the home by a special education itinerant teacher (SEIT) (Parent Ex. 5 at p. 6). The CPSE further recommended 60 minutes of individual speech-language therapy five times per week and one hour per week of parent training, as well as an occupational therapy (OT) evaluation of the child (id.). The CPSE reconvened on September 19, 2002 to review the OT evaluation report and recommended individual home based OT services for 45 minutes twice per week and also recommended a physical therapy (PT) evaluation of the child (Parent Ex. 6 at p. 6). On November 21, 2002, the CPSE convened again and recommended that the child receive individual home based PT services for 30 minutes twice per week (Parent Ex. 7 at p. 3). The CPSE convened again for a program review on January 23, 2003 and determined that the program provided to the child at that time was appropriate (Parent Ex. 9). On April 29, 2003, when the child was four years, eight months old, she was evaluated by a neurologist who offered a diagnostic impression of autism spectrum disorder and recommended "placement in a special education preschool with a full day ABA program" with continuation of therapeutic goals in the home environment to reinforce learning in the preschool environment (Dist. Ex. 20). Pending placement of the child in a center based preschool program, the neurologist recommended increasing the child's home ABA services to 30 hours per week (Dist. Ex. 20).
The CPSE convened on June 19, 2003 and discussed possible preschool placements for the child (Dist. Exs. 26, 27; Tr. pp. 872-73). The child's mother had visited five preschool placements, including one recommended by the neurologist who had evaluated the child in April 2003, but rejected all available placements (Tr. pp. 872-73). The CPSE recommended continuation of the child's home ABA program with SEIT services of 20 hours a week and support services through summer 2003 and in the 2003-04 school year (Dist. Ex. 26 at pp. 2-4).
An OT progress report dated August 31, 2003 recommended that the child spend part of her day with other children in order to benefit from opportunities for socialization (Parent Ex. 22). The CPSE convened on October 2, 2003 and recommended an increase in SEIT services from 20 to 30 hours per week (Parent Ex. 10). Seven hours of SEIT services were to be used to provide the child with one-to-one assistance three days per week while she attended the Discovery Corner daycare center (Discovery Corner) (Parent Ex. 10).
At the October 2, 2003 meeting, the CPSE also recommended psychological counseling services two hours per week to address the child's maladaptive behaviors (Tr. pp. 650-51). This service was requested by one of the SEITs who worked with the child (id.), who did not believe that her training equipped her to develop plans to address behaviors as severe as the child reportedly exhibited at that time (Tr. pp. 691-92). Staff who worked with the child addressed the child's self-abusive and aggressive behaviors by ignoring them in order to reduce reinforcement, (Tr. pp. 513, 759) by attempting to redirect the child (Tr. p. 612) or by teaching her to verbalize her anger (Tr. p. 514). Behaviors exhibited by the child included self-stimulation (Tr. pp. 496, 611), biting herself (Tr. pp. 377-78, 513, 611, 740), pulling her hair (Tr. p 513), screaming (Tr. pp. 611, 740-41), wandering (Tr. p. 377), pushing others (Tr. pp. 611, 643) and attempting to bite (Tr. pp. 378, 611, 741), pinch (Tr. p. 643) or scratch (id.). Staff who worked with the child indicated that these behaviors had increased in frequency during summer 2004 (Tr. p. 513), and the child's mother indicated that her daughter's exhibited maladaptive behaviors "[a]ll the time" when the SEITs were not present (Tr. p. 779), however, no documentation or charting of the frequency or duration of the behaviors was maintained (Tr. pp. 403, 653, 687-90).
An OT progress report dated November 7, 2003 noted that the child had "adjusted nicely" to the Discovery Center and that she appeared to enjoy being in the presence of other children (Parent Ex. 23). The SEITs who accompanied the child to Discovery Center provided one-to-one monitoring of the child, but did not employ ABA discreet trials during the hours the child attended day care (Tr. p. 690). On November 13, 2003, the CPSE convened to review the child's program and determined that it was appropriate for the child at that time (Parent Ex. 11). On January 9, 2004, psychological counseling services were discontinued by the child's parents, who indicated that the counselor who had been providing the services was not available at times when the parents required her services and also that they were not comfortable with the strategies the psychologist recommended (Tr. pp. 782-84).
A February 9, 2004 OT progress report noted that the child exhibited a "marked decrease in self-stimulatory behaviors," was more cooperative, and would now readily take the therapist's hand and transition to the therapy room in the child's home (Dist. Ex. 19). The therapist also reported that the child's ability to attend to task had improved (id.). A speech-language therapy progress report dated February 25, 2004 noted that administration of the Preschool Language Scale when the child was four years, five months old, resulted in a total language standard score of 56, which yielded an age equivalent of two years, one month (Dist. Ex. 16). Related services providers for the child did not employ ABA discreet trials during their therapy sessions (Tr. p. 374).
The CPSE convened on March 23, 2004 for the child's annual review and referred the child to the CSE for the 2004-05 school year (Dist. Ex. 6). On May 3, 2004, a psychological evaluation was conducted as part of the CSE referral (Dist. Ex. 11). The evaluator described the child as "active and self-directed" and separating easily from the play area at her day care center for testing, but requiring frequent verbal and physical prompting to remain seated (Dist. Ex. 11 at p. 1). Repetition of task demands facilitated compliance, eye contact was described as "fleeting" and frequent verbal and physical prompting was required (id.). Speech was clear when the child responded to test items, but she reportedly mumbled and hummed throughout the evaluation. Administration of the Stanford-Binet Intelligence Scale–Fifth Edition yielded a verbal IQ score of 63 (first percentile), a performance IQ score of 60 (first percentile) and a full scale IQ score of 60 (first percentile) (id). Completion of the Vineland Adaptive Behavior Scale–Interview Edition by the child's mother and by one of the child's SEITs yielded an adaptive behavior composite standard score of 53 (first percentile) (Dist. Ex. 11 at p. 2).
An educational evaluation completed on May 5, 2004 included administration of the Woodcock-Johnson III Tests of Achievement, on which the child achieved standard subtest scores of 115 (84th percentile) for letter-word identification, 63 (first percentile) for spelling, 98 (44th percentile) for passage comprehension and 67 (first percentile) for applied problems (Dist. Ex. 10). The evaluator suggested that the scatter in the child's subtest scores may have been related to differences in task demands, as some tasks required pointing and others required written or verbal responses (Tr. p. 35). As part of the educational evaluation, an observation of the child was conducted at Discovery Center (Dist. Ex. 10). During the observation, the child, accompanied by a SEIT, participated in a circle activity in a group of nine children (Dist. Ex. 10; Tr. p. 33). The child participated in the activity by pointing to and stating the letters of her first name and her address (Dist. Ex. 10; Tr. pp. 37, 50). The child was able to perform these tasks with occasional prompts from the SEIT (Tr. p. 49). The evaluator also observed the child standing at a board without accompaniment by the SEIT and pointing to letters while reciting them with the other children (Tr. p. 52). When the SEIT walked to a window and encouraged the child to check the weather, the child went to the window and said "Cloudy" (Dist. Ex. 10; Tr. p. 53).
A speech-language evaluation was conducted on May 6, 2004 (Dist Ex. 9). The evaluator reported that the child was accompanied by her SEIT, from whom she separated without difficulty. Throughout testing, the child was observed to be singing or using jargon, and she continually got up from her chair. Administration of the Test of Language Development was attempted but not completed because the child was unable to remain seated or attend to test materials. The speech-language therapist conducted an observation of the child at Discovery Center as part of her evaluation and reported that the child did not play appropriately with any toys, did not interact with any of her peers, and engaged in self-stimulation with her fingers. No spontaneous speech was observed.
On May 7, 2004, the child's mother and one of the child's SEITs visited the class that the CSE was considering for the child (Tr. p. 136), an 8:1+2 self-contained class in an integrated setting which was designed to meet the needs of children with communication and behavior difficulties (Tr. p. 132). The proposed class was in an integrated setting at the district's Connetquot Elementary School and offered a "multi-method instructional model" which incorporated language-based activities through individual and small group instruction (id.). After the child's mother and the SEIT observed the proposed 8:1+2 class and spoke with the classroom teacher and the teacher assistants, both the child's mother and the SEIT met with the three district staff members who had evaluated the child earlier that week (Tr. p. 137). The purpose of the meeting was to review the results of the evaluations conducted by the staff members and for the staff members to answer questions (Tr. p. 138).
A CSE convened on May 11, 2004 for an initial review of the child (Dist. Ex. 8). The results of the recent evaluations were discussed and the 8:1+2 self-contained class was recommended with related services of speech-language therapy five times for 30 minutes per session, OT twice a week for 30 minutes per session, and PT twice a week for 30 minutes per session. The IEP also provided for parent counseling and training once per month for 60 minutes per session, consultation from a private facility regarding the recommended program if necessary, and if needed, a child study team to be available for home visits to assist in any possible transition needs from CPSE to CSE. The child's mother did not consent to the proposed 8:1+2 placement and indicated that she wished to visit out of district placements.
On June 10, 2004, respondent received a letter from petitioner requesting an impartial hearing regarding the appropriateness of the recommended 8:1+2 program (Dist. Ex. 5). Petitioner asserted that the recommended program was inappropriate because it did not provide for a one-to-one staff member for her child, that it was not in the least restrictive environment (LRE) because it lacked interaction in an environment with typical children, that the individualized education program (IEP) did not address the child's need for extensive ABA intervention, that the goals and objectives contained in the IEP were inadequate, and that the proposed IEP did not provide for extended school year (ESY) services. Petitioner also argued that she had not received sufficient prior written notice regarding the evaluation of the child and the initiation of recommended services from the May 11, 2004 IEP.
A hearing was held on six days between July 27, 2004 and September 9, 2004. While the hearing was in process, the child continued to receive in-home SEIT, OT, PT and speech-language services as specified in her March 23, 2004 IEP. The impartial hearing officer rendered her decision on November 2, 2004. In her decision, the impartial hearing officer found that the May 11, 2004 IEP recommendation of an 8:1+2 self-contained class and related services reflected current evaluations and offered a free appropriate public education (FAPE) in the LRE because it provided the child a reasonable opportunity to achieve her goals along with the ability to socialize with age appropriate peers in a highly structured setting (IHO Decision, pp. 16-17). The impartial hearing officer determined that the recommended program was prepared to address the behavioral needs of the child and to assess functional behaviors and develop behavioral plans in conjunction with teachers and consultants (IHO Decision, p. 14). However, she noted that some of the goals and objectives were not sufficiently developed to address some of the child's specific maladaptive behaviors which the CSE knew existed (IHO Decision, p. 18). The impartial hearing officer did find that the May 11, 2004 IEP did programmatically identify and address maladaptive behavioral issues by providing that a Behavioral Intervention Consultation Team be assigned, and noted that the child required a more intensive program due to behavior management needs, that the child has poor eye contact, needs to improve attention to task, and needs a structured environment (id.). The impartial hearing officer determined that although the IEP contained goals and objectives related to self-awareness, self-concept, and improvement in social skills, the CSE did not develop sufficient goals and objectives to address the student's maladaptive behaviors. She concluded that the child was not denied a FAPE due to these deficiencies (id.).
The impartial hearing officer also noted that because petitioner signed the consent for referral and evaluation form on March 23, 2004, received a copy of the procedural safeguard notice that was sent on April 27, 2004, had the opportunity to participate in the evaluation process, was informed of the evaluation results before the May 11, 2004 CSE meeting and was present at the May 11, 2004 CSE meeting, petitioner's right to participate in the development of the IEP was not abridged by a lack of prior written notice of evaluations or availability of written evaluation reports at the May 11, 2004 CSE meeting (IHO Decision, pp. 18-19).
On appeal, petitioner alleges that the impartial hearing officer's decision was erroneous and respondent’s recommended 8:1+2 program was inappropriate. Petitioner claims that due to the child's distractibility, maladaptive behaviors, and attending issues, a one-to-one center based program would provide an appropriate setting for the child. Petitioner also claims that respondent did not meet its burden of proving that the recommended program would meet the needs of the child, respondent failed to conduct an FBA, the May 11, 2004 IEP failed to provide ESY services, and petitioner's right to participate in the development of the IEP was abridged by a lack of prior written notice of evaluations and a lack of copies of written evaluation reports at the May 11, 2004 CSE meeting.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A FAPE is available to any individual child with a disability who needs special education and related services, even though the child is advancing from grade to grade (34 C.F.R. § 300.121[e]; 8 NYCRR 200.4[c]; see also Free Appropriate Public Education, 64 Fed. Reg. 12406-01, at 12555 [Mar. 12 1999]).
To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 ). The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ. 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
After carefully reviewing the impartial hearing officer's thorough and well-reasoned decision, I find that the impartial hearing officer applied the proper legal analysis in determining whether the student received a FAPE (see Rowley, 458 U.S. at 206-07). The impartial hearing officer appropriately determined that the child's educational deficits and special education needs, as identified on the 2004-05 IEP, were consistent with available neuropsychological, psychological, educational, and speech and language evaluations.
I concur with the impartial hearing officer's decision that the recommended 2004-05 IEP reflected the requisite correspondence and alignment between the student’s needs and the goals and objectives that are required for the provision of an appropriate program (8 NYCRR 200.1[ww][i], 200.4[d][iii]), and that the recommended 8:1+2 placement offered the child a FAPE (34 C.F.R. § 300.13) in the LRE (8 NYCRR 200.1[cc], 200.4[d][ii]). For example, the May 11, 2004 IEP addressed the child's needs for a more structured setting based on her behavior management needs and for a multi-sensory instructional approach to address her communication deficits (Dist. Ex. 8 at p. 3). Testimony from respondent's school psychologist described the recommended 8:1+2 program as a multi-method instructional model that incorporates a "high degree" of one-on-one instruction along with language-based and group activities (Tr. p. 132). The May 11, 2004 IEP stated that OT, PT, parent counseling and training, and speech and language therapy would be provided in a one-to-one setting and consultant psychological services would be available for the recommended program if necessary (Dist. Ex. 8 at p. 1). Goals and objectives on the May 11, 2004 IEP addressed the child's needs to improve language skills necessary to speak and listen for information, understanding, expression and social interaction and included objectives for demonstrating auditory and visual attending behaviors necessary for communication, responding to questions, ability to use ritual greetings and introductions appropriately, and maintaining eye contact when communicating (Dist. Ex. 8 at p. 5).
I also concur with the impartial hearing officer that the recommended program offered opportunities for interaction with age appropriate peers and provided a structure that was appropriate to address the child's educational needs in a less restrictive environment than petitioner's requested one-to-one center based placement.
In addition, I agree with the impartial hearing officer's decision regarding ESY services for the child. In her decision, the impartial hearing officer noted that respondent explained that the need for ESY services is traditionally determined in the annual review meeting in the spring of a child’s current school year and that respondent had not ruled out recommending ESY services for the child as the school year progressed. The impartial hearing officer also stated that respondent noted that regression analysis could begin in October at which time respondent would collect the necessary data for consideration at the child's annual review to determine whether ESY services would be needed.
I find that the 2004-05 IEP, at the time it was formulated, was reasonably calculated to provide meaningful educational benefits. Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. § 300.510[b]; N.Y. Educ. Law § 4404). I, therefore, adopt the findings of fact and the determination of the impartial hearing officer. Based upon the record in this case, I find that respondent has met its burden of demonstrating that it offered a FAPE to petitioner’s child.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.