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 East Islip Union Free School District
John P. Clarke, Esq., and Mary Noe, Esq., attorneys for petitioner
Guercio & Guercio, attorney for respondent, Lisa Hutchinson, Esq., of counsel
Petitioner appeals from those portions of a decision of an impartial hearing officer which denied her requests that respondent provide her son with a 1:1 certified provider of applied behavior analysis (ABA) services in class five days per week, that the certified ABA provider provide one hour of pull-out services five days each week, and that a certified ABA provider provide her son with two hours per day of 1:1 services at petitioner's home five days per week. Respondent cross-appeals from those portions of the impartial hearing officer's decision which determined that it failed to offer a free appropriate public education (FAPE) to the child for the 2006-07 school year, ordered respondent to provide the child with seven hours per week of ABA services at petitioner's home by a provider of her choice, and awarded prospective payments by respondent to the home-based ABA provider. The appeal must be dismissed. The cross-appeal must be sustained.
At the time of commencement of the impartial hearing on August 8, 2006, the child was six years old and entering first grade (IHO Decision at p. 4). His eligibility for special education programs and classification as a student with autism are not in dispute (Dist. Ex. D at pp. 1-2; Parent Ex. 4 at pp. 1-2; see 8 NYCRR 200.1[zz]).
The child has a history of developmental delays in cognition, adaptive functioning, communication and social development (Parent Exs. 7 at pp. 2-3; 8 at p. 5; 9 at p. 3; 21). At age two, he was diagnosed as having "mild" pervasive developmental disorder -- not otherwise specified (PDD-NOS) (Parent Exs. 7 at pp. 3, 7; 21 at p. 1). The child received ABA instruction and related services through early intervention (EI) (Parent Ex. 8 at p. 1). By age three, he had reportedly made significant progress and was showing "perhaps only lingering traces of autism" (id. at p. 6), and he was found eligible for preschool special education services (Tr. pp. 483-84). During the 2003-04 school year, the child briefly attended a 12:1+1 inclusion class before being transferred to a 12:1+1 self-contained class (Parent Ex. 12 at p. 8). He also continued to receive ABA services at home (id. at p. 8). At age four, during the 2004-05 school year, the child attended a half-day 10:1+1 special class (Tr. pp. 403-05) where he received speech-language and occupational therapy (Parent Ex. 13 at p. 16). In addition, he received home-based special education itinerant teacher (SEIT) services (Tr. pp. 403-04; Parent Ex. 13 at p. 16) consisting of ABA instruction in structured and natural settings (Parent Ex. 13 at p. 14).
In March 2005, the child was referred to respondent's Committee on Special Education (CSE) to determine his eligibility for special education services for the 2005-06 school year (Parent Ex. 2 at p. 1). The CSE conducted several evaluations including a psychological evaluation (Dist. Ex. I; Parent Ex. 9 at pp. 1-3), an educational evaluation (Dist. Ex. K; Parent Ex. 9 at pp. 16-17) and an assessment of the child's speech and language abilities (Dist. Ex. L; Parent Ex. 9 at pp. 13-15). Administration of the Stanford Binet Intelligence Scales, Fifth Edition (SB5) by the school psychologist yielded the following standard and percentile scores: Verbal IQ 48 (< 1st percentile), Nonverbal IQ 48 (< 1st percentile), Full Scale IQ 46 (< 1st percentile) (Tr. p. 150; Dist. Ex. I at p. 1; Parent Ex. 9 at p. 1). As measured by the Vineland Adaptive Behavior Scales-Interview Edition, the child's adaptive functioning was in the low average range in several domains including communication, daily living, and socialization (Tr. pp. 153-55; Dist. Ex. I at pp. 2-3; Parent Ex. 9 at pp. 2-3).
As part of the educational evaluation, the child was administered the Woodcock-Johnson III Tests of Achievement (Dist. Ex. K at p. 1; Parent Ex. 9 at p. 16). His test performance yielded the following results: letter-word identification SS 83 (13th percentile), spelling SS 74 (4th percentile), passage comprehension 98 (45th percentile), and applied problems 50 (<0.1 percentile) (id.). The child was able to match two identical letters by pointing; however, he was unable to name any letters in isolation (id.). He was also able to copy a straight line, connect two dots while remaining in a designated boundary, and trace one requested letter (id.). In addition, he demonstrated the ability to match a rebus with a picture of an object and hold up one finger when requested (Dist. Ex. K at p. 2; Parent Ex. 9 at p. 17). The evaluator reported that the child required frequent redirection to participate in the evaluation (id.). A classroom observation revealed that the child was able to participate in a group lesson and follow classroom procedures with prompting (Dist. Ex. J; Parent Ex. 9 at p. 6).
Formal testing of the child's expressive and receptive language was attempted, but was discontinued when the child was unable to attend to the test booklet or respond by pointing to example pictures (Dist. Ex. L at p. 1; Parent Ex. 9 at p. 13). As an alternative to formal testing, a checklist, the "REEL-2," was used to gather observational information from the child's teacher regarding his language abilities (id.). Based on a teacher report, the child received a Receptive Language Age of seven months and an Expressive Language Age of seven months (Dist. Ex. L at pp. 1- 2; Parent Ex. 9 at pp. 13-14). The child was able to establish eye contact; however, it was inconsistent throughout the evaluation (Dist. Ex. L at pp. 2-3; Parent Ex. 9 at pp. 14-15). He was also able to label body parts on a toy and spontaneously request an item related to the task (id.). Jargon, perseveration, and echolalia were observed (id.). Articulation errors were noted (id.).
On April 5, 2005, an initial CSE meeting took place (Dist. Ex. F; Parent Ex. 3). The child was classified as a student with autism and recommended for an 8:1+2 special class with related services of three 30-minute sessions of individual speech-language therapy per week and two 30-minute sessions of individual occupational therapy per week (Dist. Ex. F at pp. 1-2; Parent Ex. 3 at pp. 1-2). The resultant individualized education program (IEP) indicated that respondent's staff would conduct observations/visitations to determine the child's need for home services, and that the CSE would reconvene on or before July 30, 2005 to discuss the need for home services (Dist. Ex. F at p. 1; Parent Ex. 3 at p. 1). The IEP also indicated that the child would be assessed using alternative assessment (Dist. Ex. F at p. 2; Parent Ex. 3 at p. 2). The IEP included goals and objectives with respect to reading, mathematics, speech/language, social/emotional/behavioral, motor, and basic cognitive/daily living skills (Dist. Ex. F at pp. 5-8; Parent Ex. 3 at pp. 5-8).
The record reveals that respondent's staff and consultants observed the child at home (Tr. pp. 60-61, 142-44) and at his preschool (Tr. pp. 61, 144) to determine his need for home instruction (Tr. pp. 142, 611). In addition, subsequent meetings between respondent's consultants and petitioner were held in which respondent indicated that it could provide the child with one hour of discrete trial training during the course of his school day (Tr. pp. 144-46; see Tr. p. 60). The record indicates that petitioner agreed with this decision (Parent Ex. 27 at p. 28).
On June 23, 2005, respondent's CSE reconvened (Dist. Ex. E; Parent Ex. 6). Comments on the IEP developed at the meeting indicated that the child did not require home hours at that time (Dist. Ex. E at p. 1; Parent Ex. 6 at p. 1). Additional comments indicated that one hour of the child's academic day would include discrete trial instruction (id.; Tr. p. 64).
During the months of July and August 2005, the child received summer services through respondent's Committee on Preschool Special Education (CPSE) (Parent Ex. 2 at pp. 1-2). Summer progress notes from his classroom teacher indicated that the child maintained his cognitive skills and was continuing to work on increasing his vocabulary, attending to group activities, and increasing his time on task (Parent Ex. 13 at p. 3). The child's center-based speech-language therapist reported that the child was making progress toward his goals and was able to follow some direction with less prompting (id.). Additionally, center-based staff indicated that the child demonstrated progress in his ability to complete tasks and transition to activities outside the classroom (id.). The child's SEIT reported that the child was able to sort and match different objects, shapes and colors, as well as identify most body parts (id. at p. 11). According to the SEIT, the child could receptively identify numbers one through ten (Dist. Ex. Q; Tr. pp. 455-56) and all capital letters (Tr. pp. 425, 444, 445, 454, 455, 462; Dist. Ex. Q; Parent Ex. 13 at p. 11,12).
An August 2005 progress report, generated by the child's home-based ABA provider, indicated that the child could receptively identify capital letters (Tr. pp. 425, 444-45, 454, 455-56, 462-63; see also Tr. pp. 406-07; Parent Ex. 13 at p. 11) and the numbers one through ten (Dist. Ex. Q). The home-based ABA provider noted that the child was working on the expressive identification of letters and numbers, as well as identifying lowercase letters (Parent Ex. 13 at p. 11). However, she also noted that during these programs he demonstrated avoidance behaviors, such as yelling "no" and throwing cards and/or closing his eyes (see Tr. pp. 445-46; Parent Ex. 13 at p. 11). Anecdotal notes from July and August 2005 indicated that the child could count from one to 20, and on at least one occasion he counted objects as he put them into a basket (Dist. Ex. BB at pp. 33-34; Parent Ex. 24 at pp. 13-14). Probe data entered into evidence indicated that, as measured by the child's home-based ABA provider, by August 2005 the child was able to receptively identify all capital letters and the lowercase letters a, b, c, and f (Dist. Ex. BB at p. 6).
At the beginning of the 2005-06 school year (kindergarten) the child's special education classroom teacher conducted a probe of his academic skills (Tr. pp. 240-41, 329; Dist. Ex. R). The record indicates that as of September 22, 2005, the child was not able to identify any letters receptively (Tr. pp. 330-32; Dist. Ex. R) or expressively (Tr. pp. 330-32). Regarding number identification, he could receptively identify the numbers one, two, three, four and six; however, he could not expressively identify any numbers (Dist. Ex. R).
Respondent's consultant reported that at the beginning of the 2005-06 school year, the child did not have mastery of letters and numbers (Tr. pp. 671-72, 691). Furthermore, he stated that there was a discrepancy between the child's reported ability level and his actual ability (id.). The child's classroom teacher reported that during the course of the year she discussed the child's inability to receptively identify letters with petitioner and her husband (Tr. p. 331). The teacher further reported that she developed the child's discrete trial programs based on the results of her initial probe (Tr. pp. 240-41). Although not listed on the child's IEP, the teacher provided him with one-to-one instruction after school (Tr. pp. 416-17; Dist. Ex. AA) for 30 minutes every other week until January 2006 (Tr. pp. 609-10).
IEP progress notes from the first quarter of the 2005-06 school year indicated that the child had achieved objectives related to identifying himself as "I" or "me," demonstrating the use of toys in an appropriate, symbolic manner, and demonstrating the ability to complete a simple puzzle with non-interlocking pieces (Parent Ex. 13 at pp. 7, 8, 10).
By letter dated January 9, 2006, petitioner requested a review of her son's services (Tr. pp. 400-01; Dist. Ex. AA). According to petitioner, based on data sheets she had been receiving since her son started discrete trial work in the classroom, he was having difficulty mastering new skills and was unable to demonstrate skills previously learned (Dist. Ex. AA). Petitioner opined that the location in which her son was receiving discrete trial instruction was too distracting for him and suggested that if the child's ABA services were moved back into her home he would begin to "move forward" (id.).
On February 28, 2006, respondent's CSE convened for the child's annual review and to develop a program for the 2006-07 school year (first grade) (Dist. Ex. D; Parent Ex. 4). According to the child's teacher, the child was making slow but steady progress (Dist. Ex. D at p. 1; Parent Ex. 4 at p. 1). The results of February 2006 speech-language and educational evaluations were recorded on the child's IEP (Dist. Ex. D at pp. 3-4; Parent Ex. 4 at p. 4). The record indicates that the test scores had been reviewed with petitioner prior to the CSE meeting, but no written reports of the speech-language and educational evaluations had been prepared (Tr. pp. 358-59, 401-03; Parent Ex. 25).
The February 28, 2006 CSE recommended maintaining the child's classification of autism and further recommended that for the 2006-07 school year the child remain in an 8:1+2 special class and receive one hour per day of discrete trial instruction in the classroom (Dist. Ex. D at pp. 1-2; Parent Ex. 4 at pp. 1-2). The February 2006 CSE also recommended that the child receive three individual 30-minute sessions of speech-language therapy in addition to two individual 30-minute sessions of occupational therapy per week (Dist. Ex. D at p. 2; Parent Ex. 4 at p. 2). The resultant IEP also included a provision for monthly parent training (id.).
Petitioner disagreed with the February 2006 CSE's recommendations (Dist. Ex. D at p. 1; Parent Ex. 4 at p. 1). Meeting minutes indicated that respondent's CSE would review new materials regarding the child's discrete trial instruction and reconvene on or before April 18, 2006 (Dist. Ex. D at p. 1; Parent Ex. 2 at p. 1).
In March 2006, petitioner requested information from the child's teacher regarding her son's discrete trial instruction (Parent Ex. 17 at pp. 143, 151; see also Parent Ex. 27 at p. 8). Although petitioner was not provided with copies of the actual data collected during the child's discrete trial instruction, respondent's school psychologist summarized the discrete trial information and presented it to her in graph form (Tr. pp. 202-04, 710-12; Dist. Exs. V, W).
On May 5, 2006 respondent's CSE reconvened, at which time it reviewed materials from the child's previous (preschool) discrete trial programs (Tr. p. 364; Dist. Ex. C at p. 1; Parent Ex. 5 at p. 1). Minutes from the meeting indicate that petitioner requested a six-week summer program, as well as one hour per day of home-based instruction during summer 2006 and the 2006-07 school year (Dist. Ex. C at p. 1; Parent Ex. 5 at p. 1). Respondent's CSE did not recommend the special education services requested by petitioner (Tr. p. 304; Dist. Ex. 4; Parent Ex. D)
On May 30, 2006, a resolution session took place, suggesting that petitioner requested an impartial hearing following the May 2006 CSE meeting. However, the record does not contain a due process complaint notice (Parent Ex. 25).
In June 2006 the child was evaluated by one of his preschool providers using the Assessment of Basic Language and Learning Skills (ABLLS) (Tr. p. 534; Parent Ex. 10). The evaluator reported that the child seemed "a little bit less engaged" than he had been the previous summer and also that the child was unable to perform tasks that previously he had been able to perform (Tr. p. 535).
The child's fourth quarter IEP progress report indicated that by the end of the 2005-06 school year he had achieved additional objectives related to rote counting to 20, matching patterns of one to three familiar objects, demonstrating the abilities to impartially engage in a classroom activity when announced by a teacher or at a predetermined scheduled time, point or otherwise indicate simple needs, use single words, retain and follow one-step directions when presented orally, remain seated during classes, and remain on task during unstructured or impartial work time (Dist. Ex T; Parent Ex. 14 at pp. 21-27). In addition, the child was progressing satisfactorily or demonstrating some progress on the remainder of his 2005-06 IEP objectives that had been implemented (id.).
The child's June 2006 report card indicated that he experienced difficulty naming lower case letters (Parent Ex. 15). Since February 2006, the child had made progress in the following areas: participating in activities, taking care of personal and shared property, working and playing cooperatively with others, listening while others were speaking, learning his phone number, following directions (with assistance) in a group setting, working impartially, listening and responding appropriately during group activities, writing upper and lowercase letters (with assistance), writing his name (with assistance), completing simple patterns, sorting and classifying colors and shapes, and recognizing and naming shapes (id.).
The record suggests that a settlement was reached regarding petitioner's request for summer 2006 special education services (Tr. p. 10; see also Parent Ex. 27 at pp. 2-3). For summer 2006, respondent reportedly approved home-based summer services for the child consisting of ABA instruction two hours per day, speech-language therapy three times weekly and occupational therapy twice weekly (Parent Ex. 21 at p. 1).
In June and July 2006, petitioner and her husband sought a psychological evaluation to determine the child's level of autism and assist in program planning (id.). The same psychologist who had originally diagnosed the child with PDD-NOS in October 2002 conducted the evaluation (Tr. pp. 480-81, 485). The private psychologist concluded that the results of his clinical observation, parental and teacher reports, and results of standardized testing were suggestive of a child with mild to moderate autism (Parent Ex. 21 at p. 7). He recommended that the child participate in a full-day special class program with a small student-to-staff ratio and opportunities for individualized instruction (id.). He further recommended that the child be provided a 1:1 aide during group instruction (id.) and that the child receive 20 hours per week of ABA services (Parent Ex. 12 at p. 8).
Petitioner filed an amended due process complaint notice dated June 21, 2006 (Dist. Ex. A). It is not clear to what extent the amended complaint modified the initial complaint, as the initial complaint is not in the record. The stated purpose of the amended due process complaint notice was to address respondent's alleged failure to develop an appropriate IEP for the 2005-06 and 2006-07 school years, thereby denying the child a FAPE (id. at p. 1). Specifically, petitioner claimed 1) that respondent recommended a ten-month program for the child, and that the child would regress without a 12-month program; 2) that the short-term and long-term goals and objectives contained in the 2006-07 IEP did not adequately or accurately address the child's functioning level or current and future needs; and 3) that the recommended related services were inappropriate to address the child's disabilities (id. at p. 2).
Petitioner sought summer services for the child, as well as additional ABA and therapy services for the 2006-07 school year (id.). In a July 3, 2006 response to the amended due process complaint notice, respondent argued that it prepared appropriate recommendations and offered the child a FAPE for the 2006-07 school year (Dist. Ex. B-1 at p. 1). Respondent further indicated that issues related to the 2005-06 school year were being resolved via a separate impartial hearing (id. at p. 2).
On July 10, 2006, a resolution meeting regarding the 2006-07 school year took place (Parent Ex. 27 at p. 1). By addendum dated July 26, 2006, respondent indicated that it forwarded a finalized copy of the child's IEP for the 2006-07 school year to petitioner on or about July 18, 2006 (Dist. Ex. B-2 at p. 1). On August 8, 2006, an impartial hearing convened and, after four days of testimony, concluded on August 31, 2006. At the commencement of the impartial hearing, it was revealed that petitioner had sent respondent a second amendment to the impartial hearing request, which sought a 12-month program (Tr. pp. 6-12). Petitioner later withdrew that request (Tr. pp. 381-82). On August 10, 2006, petitioner withdrew her request regarding additional speech-language and occupational therapy services for the 2006-07 school year (Tr. p. 566).
By decision dated October 26, 2006, the impartial hearing officer found that the evidence showed that the child had regressed under the program provided by respondent during the 2005-06 school year, and accordingly she found that the 2006-07 IEP, which offered the same program, was not appropriate to meet the child's special education needs (see IHO Decision at pp. 16, 21). Despite her conclusion that the 2006-07 IEP did not adequately meet the child's special education needs, the impartial hearing officer was not persuaded that the child required additional individual ABA services in the classroom and consequently denied petitioner's request for an additional in-school certified ABA provider (id. at pp. 21, 24). However, she determined that the child required some home-based ABA services in conjunction with the school-based delivery of his ABA services (id. at p. 23). As a result, she ordered respondent to provide the child with seven hours of home-based ABA services per week with a therapist of petitioner's choosing (Id. at p. 24); however, she did not articulate a basis for doing so. She also ordered respondent to pay for the home-based ABA services "upon proof of services rendered and receipt of bill" (id.).
In this appeal, petitioner asserts that the 2006-07 IEP was substantively defective because her son had regressed under the same program implemented by the 2005-06 IEP. Petitioner also requests an order directing respondent to provide her son with a certified ABA provider in the classroom for four hours per day, five days per week, in addition to at-home ABA services by a certified provider for two hours per day, five days per week.
Respondent cross-appeals, arguing that the impartial hearing officer erred in determining that respondent failed to offer the child a FAPE. Respondent also contends that the impartial hearing officer erred in directing at-home ABA services with a provider of petitioner's choosing.
At the outset, I note that I agree with the impartial hearing officer's determination that the IEP dated February 28, 2006 that was received by petitioner on July 20, 2006 is the IEP that governs the 2006-07 school year and is the subject of this appeal and cross-appeal (IHO Decision at pp. 15-16; Tr. pp. 629-30). The impartial hearing officer took note of testimony indicating that the February 28, 2006 IEP was a draft IEP and the July 20, 2006 IEP was the final version (IHO Decision p. 15; Tr. p. 648). However, although petitioner contends that the May 2006 IEP is the governing IEP, I find that the impartial hearing officer correctly noted that the May 2006 IEP "was written in response to [petitioner's] request for the summer services which came as a result of the February  IEP, and does not constitute the IEP for the 2006-07 school year" (IHO Decision, p. 15).
Respondent contends that the impartial hearing officer erred in finding that petitioner sustained her burden of proving that the program recommended by the CSE was not appropriate to meet the child's special education needs. I concur with respondent's contention. As detailed herein, I disagree with the impartial hearing officer's determination that the 2006-07 IEP denied the child a FAPE. For reasons set forth in greater detail below, the record as a whole reveals that the impartial hearing officer incorrectly based her determination on her findings that the child's IEP for the 2006-07 school year was identical to the IEP for the 2005-06 school year, and that the child regressed in the 2005-06 school year. I find that petitioner did not demonstrate that overall the child regressed in the 2005-06 school year. I also find that the record demonstrates that the child's learning progressed that year.
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§1400-1482)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes 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[D]; 34 C.F.R. § 300.17;2 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).3 The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S.Ct. at 536-37 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).
The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 34 C.F.R. § 300.513[a]). Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][E][iii]).
Both the Supreme Court and the Second Circuit have noted that the IDEA does not, itself, articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by the IDEA requires states to maximize the potential of students with disabilities (Rowley, 458 U.S. at 197 n.21, 189, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by "loving parents" (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Thus, a school district satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203).
The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130), in other words, is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. §§ 300.114[a][i], 300.116[a]; 8 NYCRR 200.6[a]).
With respect to petitioner's allegation that the 2006-07 IEP is substantively inadequate, a review of the record indicates that petitioner attempted to prove this allegation by showing that the child regressed under the previous school year's IEP that offered the same special education services (Tr. pp. 12-13). Petitioner bases her regression claim primarily on the testimony of the private psychologist (Pet. ¶ 7) and on the reported differences in the child's academic abilities between August 2005, when he received summer services through respondent's CPSE, and the 2005-06 school year (see Tr. pp. 406-07). The impartial hearing officer was persuaded by the evidence that although the child progressed in some areas he regressed in several areas and overall the program was not appropriate (IHO Decision at p. 21). She further concluded that despite some progress there was evidence of regression in some areas that should have caused respondent's CSE to revise the child's program recommended for the 2006-07 school year (id. at pp. 23-24). The impartial hearing officer referred to testimony by the supervisor for the child's preschool services that the mastery criteria applied by the preschool provider and the district "are pretty much the same" (id. at p. 20). Based upon a careful examination of the entire record, including evidence of progress in 2005-06, I disagree.
Petitioner claims that the private psychologist who evaluated the child in June and July 2006 testified that the child had regressed (Pet. ¶ 7). However, the testimony of the private psychologist does not support this claim. The psychologist testified that during his 2006 evaluation he found that the child's disability was more significant than initially thought (Tr. pp. 486, 488). Although he opined that the child was not functioning well in respondent's program and that he required more ABA-type instruction, the psychologist did not indicate that the child's program had caused him to regress (Tr. pp. 488-89). The record shows that the psychologist observed the child for approximately one hour in the classroom setting (Tr. p. 487). In his evaluation report, the psychologist noted petitioner's concerns regarding regression; however, he did not express such concerns himself (Parent Ex. 21). In addition, the psychologist's description of the child's behavior in a group activity (id. at pp. 4- 5) was similar to that of the child's center-based preschool teachers (Parent Exs. 12 at p. 9; 13 at p. 18) and not suggestive of regression.
With regard to mastery criteria, the record indicates that the child's home-based ABA providers initially employed discrete trial training but switched to a verbal behavior approach in order to vary instruction and keep the child motivated (Tr. pp. 531-32). One provider noted that discrete trials "didn't seem to work well with us, the first four times we'd ask [the child] he would get it right and after that he would get it wrong" (Tr. p. 531). The provider suggested the child was frustrated (id.). Using a verbal behavior approach, the home-based preschool providers determined the child's mastery of skill through a series of three probes (Tr. pp. 449-50). If the child responded correctly to a task the first time it was presented, for each of three consecutive probes, the skill was considered mastered (Tr. pp. 465-66). Probes were conducted on an every other day basis (Tr. pp. 533-34, 545-46). In contrast, beginning in September 2005, the child's kindergarten teacher provided instruction using a discrete trial format where the child was provided ten trials and had to achieve 80 percent mastery of skills over two consecutive days (Tr. pp. 221-23). Based on the record before me, I am unable to determine whether the child would have been found to have mastered letters and numbers in August 2005 if the same criteria that were used by respondent in September 2005 had been applied by the child's home-based preschool providers (see Tr. pp. 452-53). In light of the foregoing, I find petitioner's claims regarding regression not to be persuasive.
At the beginning of the 2005-06 school year (kindergarten) the child's special education classroom teacher conducted a probe of the child's academic skills (Tr. pp. 240-41, 329-32). The record indicates that as of September 22, 2005, the child was not able to identify any letters receptively (Tr. pp. 330-32, 367; Dist. Ex. R) or expressively (Tr. pp. 330-32). Regarding number identification, the child could receptively identify the numbers one, two, three, four and six (Dist. Ex. R); however, he could not expressively identify any numbers (id.). Based on the foregoing, the record reflects that if regression had in fact occurred, it appears to have taken place prior to the beginning of the 2005-06 school year.
The parties offer several possible explanations for the child's inability to identify letters and numbers when he entered respondent's self-contained class in September 2005. Among the explanations detailed in the record include the child's difficulty generalizing skills across instructors (Tr. p. 445), the lapse in services between the end of the summer school program in August 2005 and the beginning of school in September 2005 (Tr. pp. 533, 544; see also Tr. pp. 428-29), and the difference in mastery criteria between the preschool and the school-age program (Tr. pp. 365-67, 452-53). I note that both parties presented witnesses who confirmed that the child had difficulty generalizing skills (Tr. pp. 367-68, 456; see also Parent Ex. 10 at p. 2). Furthermore, the record indicates that the child had difficulty maintaining mastered skills without repeated exposure (Tr. pp. 428-29).
In light of the foregoing, I disagree with the impartial hearing officer's finding that petitioner demonstrated that the child regressed during the 2005-06 school year.
Respondent contends that petitioner failed to establish that it failed to offer the child an appropriate program for the 2006-07 school year. Respondent further maintains that the child made progress during the 2005-06 school year and that the same educational program remained appropriate for the 2006-07 school year. I concur. During the 2005-06 school year, the child attended an 8:1+1 special class where he received one hour per day of individual discrete trial instruction from his special education teacher (Tr. p. 199). There were five students in the child's class (Tr. pp. 141, 293). He also received individual speech-language therapy three times per week for 30 minutes, and individual occupational therapy two times per week for 30 minutes (seeDist. Ex. D at p. 2).
Respondent employed "autism consultants" to consult with its staff and to provide parent training (Tr. pp. 143-44, 660). The director of the consulting agency held a Ph.D. in educational psychology and had significant training in ABA, as well as significant training and experience working with individuals with autism (Tr. pp. 659-60; Dist. Ex. CC at pp. 1-3). The child's classroom teacher held bachelor's and master's degrees in education as well as a 30-credit certificate in autism education from a university (Tr. pp. 189-90). The aides in the child's classroom were trained in ABA by respondent's consultant (Tr. pp. 191-92, 687). Testimony by the director of special education suggested that respondent trained all staff members working in buildings where classrooms for children with autism were located (Tr. pp. 50-51).
The child's teacher reported that she used an eclectic instructional approach that included ABA strategies and the "teacher" program (Tr. pp. 194, 200-01).4 These included picture schedules and visual cues, prompting, fading, shaping, backward chaining, and behavioral contracts (Tr. pp. 195-97). In addition to discrete trial training, there were opportunities for the child to receive individualized instruction throughout the school day (Tr. pp. 141-42, 179-81, 672-73, 683, 690). The teacher and consultant indicated that adjustments were made to the child's program throughout the year (Tr. pp. 214, 680-81; see also Tr. p. 325). The teacher reported that the consultants assisted her in addressing the child's behavioral challenges and socialization needs (Tr. pp. 354-55).
According to the classroom teacher, during the course of the 2005-06 school year the child developed an understanding of classroom functions and behavioral expectations, such as how to collect his schedule (Tr. pp. 341-42; see also Tr. pp. 311-23). He was also learning to ask for help, as well as how to ask for things he wanted and needed (id.). The child was able to maintain his attention to task for longer periods and to work more impartially, and he was more receptive to others working with him or alongside him (Tr. p. 342). The teacher reported that, over the course of the year, the child became more receptive to socializations with peers, although he continued to require prompting (Tr. p. 344). The teacher further reported that the child developed more spontaneous speech during the 2005-06 school year and would frequently communicate his wants or needs in the classroom (Tr. p. 346). Nevertheless, his spontaneous speech remained very limited (id.). By the end of the school year, the child was able to receptively identify four letters (Tr. p. 224) and two additional numbers in isolation (Tr. p. 226). He was also able to expressively identify the numbers one, two, and three, in isolation and in a group (Tr. pp. 228-29). Additionally, he was able to answer three social questions in isolation, but not in a mix (Tr. pp. 230-31, 332-34). The teacher concluded that the program provided to the child during the 2005-06 school year was appropriate, that the child showed academic progress, and that socially, he was able to function in the class "quite nicely" by the end of the year (Tr. pp. 355-56). The child's report cards and progress reports for IEP goals reflected similar progress (Parent Exs. 14 at pp. 21-27; 15).
Respondent's autism consultant reported that during the 2005-06 school year he spent 15-20 hours working with the child (Tr. p. 670). He testified that he provided the child with discrete trial training and also instruction during his daily routine (Tr. p. 671). According to the consultant, the child initially had significant difficulty following class routines and required a lot of direction and attention (id.). However, over time the child came to understand the routines and became very good at following them (Tr. pp. 672, 680). The consultant reported that the child had progressed in his ability to interact with other students in order to achieve an outcome and in his ability to initiate activities toward the completion of a routine (Tr. pp. 674, 680). The consultant observed that during the course of the year the child's language and ability to initiate grew (Tr. pp. 676, 680). He reported that the child was able to manage some of the natural distracters of the environment, but that internal distraction continued to be a difficulty for him (Tr. p. 675). Although the consultant appeared to concede that the child's academic progress was perhaps not consistent with his developmental level (Tr. pp. 679-80), he later testified that the child's progress was within the realm of what is expected and accepted (Tr. p. 692).
Respondent's school psychologist testified that graphs created to summarize the child's performance during discrete trial training indicated that the child was making progress (Tr. pp. 711-12, Dist. Ex. V). Petitioner did not challenge the psychologist's interpretation of the graphs.
The record as a whole suggests that during the 2005-06 school year the child's progress was consistent with his abilities and with descriptions from previous service providers regarding his rate of progress (Parent Exs. 12 at pp. 7, 12; 13 at pp. 1, 22). Accordingly, I agree with respondent's assertion that the impartial hearing officer erred in finding that the child did not make adequate progress during the 2005-06 school year, and I also disagree with her conclusion that the CSE's recommendation for a similar program for the 2006-07 school year was inappropriate to meet the child's special education needs.
Turning to the impartial hearing officer's determination that the parent was not given the opportunity to participate in the child's program in a meaningful way (IHO Decision, p. 16), I do not find that parental opportunity for participation in the decision making process regarding the provision of a FAPE to the child was significantly impeded to the extent that a FAPE was denied. Petitioner acknowledged that she received daily checklists from the child's teacher outlining activities the child participated in during the day (Tr. pp. 604-05; Dist. Ex. X, Parent Ex. 17; see alsoTr. p. 326). In addition petitioner reported that she drove her son to and from school each day so that she could have interaction with his teacher (Tr. pp. 606, 608-09). The record contains copies of notebook pages used by petitioner and the child's service providers to communicate information regarding the child (Tr. p. 327; Dist. Exs. X, Y; Parent Ex. 17), and an entry in petitioner's diary suggests that she had monthly meetings with the child's teacher (Parent Ex. 27 at p. 27). Respondent sent petitioner quarterly reports of the child's progress toward his IEP goals (Dist. Ex. T; Parent Ex. 14) in addition to classroom report cards (Dist. Ex. U). Petitioner was offered and participated in monthly parent training (Tr. p. 618; Dist. Ex. 4 at p. 2), and respondent's school psychologist met with petitioner to review the results of the child's discrete trial instruction (Tr. pp. 202-04; 710-12; Dist. Ex. V). Thus, the record is replete with indications that the parent was provided with many opportunities to participate in the child's program. Moreover petitioner participated in CSE meetings regarding her child's program. Finally, the failure of the child's teacher to maintain her personal notes that she utilized for making progress reports for the 2005-06 school year, under the circumstances presented herein, did not result in a denial of a FAPE.
Having determined that the challenged IEP offered a FAPE to petitioner's son for the 2006-07 school year, I also find that the impartial hearing officer erred in ordering respondent to provide the child with seven hours per week of ABA services at petitioner's home by a provider of her choice and erred in ordering payments by respondent to the home-based ABA provider.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent she 1) determined that respondent failed to offer the child a FAPE for the 2006-07 school year; 2) ordered respondent to provide the child with seven hours per week of ABA services at petitioner's home by a provider of her choice; and 3) ordered payments by respondent to the home-based ABA provider.
1 On December, 3, 2004, Congress amended the IDEA, and the amendments took effect on July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
2 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
(20 U.S.C. § 1401; see 20 U.S.C. § 1414[d]).
3 The Code of Federal Regulations (34 C.F.R Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
4 The transcript indicates that the student's special education teacher was employing "the teacher program" or "teach" (Tr. pp. 194, 200-01). Based upon context, it appears the teacher may have indicated that she was using TEACCH (Treatment and Education of Autistic and related Communication - handicapped CHildren).