99-030

       Petitioners appeal from an impartial hearing officer's decision which found that respondent had offered to provide an appropriate educational program in its specialized instructional environment-III (SIE-III) program at P.S. 329 to petitioners' son during the 1998-99 school year. In view of that finding, the hearing officer denied petitioners' request for an order requiring the Board of Education to reimburse petitioners for the cost of a home-based program of applied behavioral analysis (ABA) which they provided to their son. Petitioners also appeal from the hearing officer's determination that their home-based program was not their child's pendency placement as the result of another hearing officer's order requiring respondent to reimburse the parents for the ABA services which they obtained for their child during the 1997-98 school year. The appeal must be sustained.

        Petitioners' son, who is six years old, has been medically diagnosed as having a pervasive developmental disorder (PDD), with speech/language, motor, sensory, cognitive, and affective dysfunction (Exhibit A). The child has been classified by respondent's committee on special education (CSE) as autistic. His classification is not disputed in this proceeding.

        The child's parents noticed that he did not achieve his developmental milestones on time, and they sought early intervention services for him. He reportedly began receiving special education, speech/language therapy, physical therapy, and occupational therapy at home in 1994. In September, 1995, the child began attending a center-based preschool program on a part-time basis. However, he subsequently returned to a home-based program in 1996 (Exhibit 7).

        During the 1996-97 school year, the child was enrolled in an approved center-based preschool program at the Machzik Bracha Learning Center (MBLC) in Brooklyn. In a prior proceeding involving the child, the MBLC educational director testified that the child was initially placed in a class of 12 children, which was inappropriate for him. Petitioners' son was subsequently placed in a class of eight children at MBLC. The educational director also testified that the boy was functioning at an age equivalent level of 12-14 months in June, 1997, and had improved only slightly to the 12-15 month level by February 1998 (Exhibit F). The child was under the jurisdiction of respondent's committee on preschool education (CPSE) during the 1996-97 and 1997-98 school years. In March, 1998, the CPSE recommended that the child remain in the MBLC program until September, 1998, at which time he would be placed pursuant to the CSE's recommendation.

        In preparation for the 1998-99 school year, the CSE sent a school psychologist to observe the child in his MBLC program in December, 1997. The psychologist reported that the child exhibited self-stimulative behavior, and that he screamed at times for no apparent reason. She further reported that he required adult assistance with most work and self-help skills, and had a difficult time making transition to new activities (Exhibit 11).

        A CSE educational evaluator assessed the boy's skills on February 4, 1998. She reported that the child was non-verbal, but emitted low and high pitched sounds. The boy used some gestures to indicate his needs, and required constant refocusing. The evaluator described the child as having significant areas of developmental delay in his gross motor, language, social, and activities of daily living skills (Exhibit 8).

        The child was evaluated by a CSE school psychologist on February 5, 1998. The school psychologist reported that the child did not understand any direction given to him during the evaluation, and he showed no interest in performing the tasks which she asked him to do. The child had a very short attention span, and had difficulty switching from one activity to another. In view of the child's non-verbal status, only the non-verbal portion of his IQ could be tested. The school psychologist estimated that the child's non-verbal cognitive skills were within the moderately deficient range. The child's adaptive behavior was assessed using the Vineland Adaptive Behavior Scales. He achieved age equivalent scores of seven months for communication, eight months for socialization, 15 months for daily living skills, and 19 months for motor skills. The boy was approximately four and one-half years old when tested (Exhibit 7).

        The child was also evaluated on February 5, 1998 by a CSE speech/language pathologist, who reported that the boy did not utter any meaningful sounds during the evaluation. She also reported that the child kept his mouth open, and exhibited perseverative behavior throughout the evaluation. She recommended that the child receive speech/language therapy, as well as feeding therapy (Exhibit 9). I note that the child was receiving speech/language therapy while attending the MBLC.

        Petitioners were reportedly advised by staff at the MBLC that an ABA program might be beneficial to the child. They reportedly established a home-based ABA program for their son in October, 1997 to supplement the services he was receiving at the MBLC. On March 17, 1998, petitioners removed their son from the MBLC program because they believed that he would benefit more from a 1:1 ABA program (Transcript, page 99). They also requested an impartial hearing to challenge the CPSE's recommendation that their son remain in the MBLC program. The hearing began in April, and concluded in June. In a decision dated August 4, 1998, the hearing officer in that proceeding found that the center-based MBLC program was not appropriate for the child's educational needs, and that a home-based ABA program was appropriate for the child. Although petitioners' home-based program consisted of 40 hours of ABA services per week under the supervision of the Douglass Outreach Program of Rutgers University (Douglass), the hearing officer found that the child was entitled to receive no more than 25 hours of such services per week pursuant to the appropriateness standard under the Individuals with Disabilities Education Act (IDEA). Therefore, he limited petitioners' recovery of their costs to reimbursement for 25 hours of ABA per week from March, 1998 until September, 1998, as well as reimbursement for their son's individual speech/language therapy, occupational therapy, and physical therapy during that period (Exhibit F). The hearing officer's decision was not appealed, and is not reviewed in this proceeding.

        On April 1, 1998, respondent's CSE recommended that the child be classified as autistic, and that he be placed in respondent's SIE-III program at P.S. 329. The IEP which the CSE prepared for the child indicated that the recommended class would have a child to adult ratio of 6:1+1 (Exhibit 4). The CSE also recommended that the child receive individual speech/language therapy five times per week, individual occupational therapy three times per week, and individual physical therapy twice per week. The IEP also made provision for toilet training the youngster.

        At the hearing in this proceeding, the child's mother testified that she asked the CSE to recommend a program of 1:1 ABA training for her son, but was told that she should first visit P.S. 329 to observe the SIE-III program. She further testified that she had not observed evidence of an ABA program being provided when she visited the school. The child's mother was then sent to P.S. 77 to observe the SIE-III program there, which she did not like. At petitioners' request, the CSE reconvened on August 21, 1998. The child's mother was reportedly told that the programs which she had been sent to observe were all that were available in Community School District 21. A school social worker who participated in the April and August CSE meetings conceded that the SIE-III program had been recommended because that was respondent's program for autistic children, and testified that "hopefully" a teacher in the recommended program would have some knowledge of ABA techniques (Transcript, page 35). The site supervisor for the special education programs at P.S. 329 testified that an ABA program had begun at the school in September, 1998. A certified special education teacher who was supervising the boy's home-based program opined at the hearing that the SIE-III program was inappropriate because it was not sufficiently individualized or intensive, and because the ABA part of the program had not begun until November, 1998. She further opined that the child would not be suitably grouped for instructional purposes in the recommended SIE-III class. The special education teacher also challenged the appropriateness of the boy's IEP annual goals and short-term instructional objectives.

        The hearing officer rendered her decision on March 29, 1999. She rejected petitioners' contention that the child's "pendency placement" for purposes of 20 USC 1415 (j) and Section 4404 (4) of the Education Law was the home-based ABA program provided by his parents because the hearing officer in the prior proceeding had upheld petitioners' claim for tuition reimbursement. She noted that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The hearing officer found that the educational program which the CSE had recommended for the child was reasonably calculated to allow him to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982], and that it was consistent with the requirement that the child be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). She rejected petitioners' contention that the CSE should have observed the child at home, as well as their objections to the provisions of his IEP. The hearing officer also found that the child would have been suitably grouped for instructional purposes in the SIE-III class at P.S. 329, as required by 8 NYCRR 200.6 (a)(3); 8 NYCRR 200.13 (a). Accordingly, the hearing officer found that respondent had met its burden of proving the appropriateness of the program recommended by its CSE. Since respondent prevailed with respect to the first criterion for an award of tuition reimbursement, the hearing officer ruled that petitioners had no legal right to be reimbursed for the costs which they would incur in providing a home-based ABA program to their son during the 1998-99 school year.

        Petitioner challenge various parts of the hearing officer's decision, including her determination that the pendency provisions of Federal and State law did not apply to the child's home-based program because the hearing officer in the proceeding challenging the CPSE's recommendation had found that the home-based program was appropriate for the child. The hearing officer in the present proceeding held that a prior hearing officer's decision awarding tuition reimbursement did not change the child's pendency placement because the school district and the parents had not jointly agreed to change the boy's placement from a center-based to a home-based program. The Federal and State statutes refer to the child's "then current educational placement", which has been defined to mean the child's last mutually agreed upon placement at the time when the due process proceeding was commenced (Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]).

        In this instance, the last mutually agreed upon placement was at the MBLC. An impartial hearing officer's decision awarding tuition reimbursement pursuant to the Burlington criteria did not change the child's pendency placement (Application of a Child with a Disability, Appeal No. 96-92; Application of the Bd. of Ed. Northeast CSD, Appeal No. 97-76; Application of the Bd. of Ed. of the Hyde Park CSD, Appeal No. 97-77; Application of the Bd. of Ed. Wappingers CSD, Appeal No. 97-82). While I am aware of a recent decision by another State Review Officer construing the provisions of the new 34 CFR 514 (c) as requiring that a child's pendency placement be changed when the State Review Officer "agrees with the child's parents that a change of placement is appropriate" (Application of a Child with a Disability, Appeal No. 99-100), I must point that the regulation in question did not take effect until May, 1999, and that no State Review Officer has reviewed the prior hearing officer's decision. I agree with the hearing officer that the child's pendency placement was not changed.

        Petitioners contend that the hearing officer erred in finding that respondent had met its burden of proving the appropriateness of the CSE's recommendation. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Before reaching the appropriateness of the boy's IEP, I note in passing that petitioners have alleged that no regular education teacher participated in the April 1, 1998 CSE meeting. While the 1997 amendments to the IDEA added a provision requiring that a regular education teacher participate in most CSE meetings, those amendments did not take effect until July, 1998. When the CSE reconvened in August, 1998, a regular education teacher was present (Transcript, page 21).

        Petitioners assert that their son's IEP for the 1998-99 school year did not address the boy's individual needs. They rely in part upon the testimony by the special educator who was supervising their son's home-based program that the IEP goals and objectives were inappropriate because in some instances they called for the child to develop certain skills which he already had, e.g., pointing, following directions, and vocalizing, and in at least one instance the goal was overly optimistic, e.g., that the child would "participate in all developmentally appropriate group activities with minimal adult supervision". In addition, the special education teacher testified that the child's IEP should have included at least one annual goal related to feeding.

        Upon review of the IEP, I find that it accurately reflects the results of the evaluations which were performed prior to the April 1, 1998 CSE meeting. It does not reflect the results of a private evaluation which was performed at the Institute for Basic Research (IBR) on May 4, 1998, although those results were reportedly made available to the CSE in time for its August 27, 1998 meeting. However, that omission does not afford a basis for annulling the child's IEP. I find that contrary to the testimony by petitioners' expert witness, the boy's IEP does include an annual goal which addresses the child's need to improve his feeding skills. The second goal for speech/language addresses the very issues which the witness raised in her testimony. The child's IEP annual goals which relate to pointing, following directions, and vocalizing are not necessarily inconsistent with the level of skills which he had reportedly already developed. However, those goals lack specificity as to the levels of performance which the child is expected to achieve. The supporting short-term instructional objectives also fail to provide the needed detail. An annual goal is a statement of what a child can reasonably be expected to accomplish within a 12-month period (Application of a Child with a Disability, Appeal No. 98-57). The CSE's lack of precision in formulating this child's goals and objectives, and its failure to include a description of appropriate objective criteria and evaluation procedures and schedules and for determining whether the child's short-term objectives are being met, is a significant matter. However, it might not lead me to conclude that respondent's proposed program for him was inappropriate (Application of a Child with a Disability, Appeal No. 99-6).

        Petitioners also challenge the appropriateness of the special education services which the CSE recommended for their son. Respondent must offer sufficient education services to afford petitioners' son a reasonable chance of achieving his IEP annual goals and objectives, and those services must be provided to him in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). I note that the Regulations of the Commissioner of Education require that educational programs for autistic children make provision of parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13 [d]). The record does not reveal if or how respondent intended to provide this service to petitioners.

        I must also note that there is relatively little information about how the recommended SIE-III class at P.S. 329 would specifically address this child's special education needs. The school social worker member of the CSE testified, in essence, that the child would be placed in the SIE-III program, and if unsuccessful, other options could be considered. The special education site supervisor testified that there were four children in the recommended class, three of whom had individual "crisis management" aides, and that another aide was assigned to the class. The supervisor testified that an ABA "pilot program" had begun in September 1998, and that a consultant from Douglass was assisting the program. Actual implementation of the discrete trial portion of the program did not begin until November, 1998. I note that the ABA methodology generally involves breaking down a skill or task into many small steps, which the child is then taught to do in a series of discrete trials. After a child has mastered a skill or task in a carefully controlled environment, i.e., a discrete trial, the child's teacher attempts to have the child "generalize" his newly acquired ability, i.e., apply that ability in other settings, or contexts.

        The ABA methodology obviously requires a great deal of 1:1 work with a student. Although there is no contention that ABA is the only methodology which could be used with this child (Transcript, page 92), there does not appear to be any dispute between the parties that the methodology should be used with him. The parties do not, however, agree on the intensity of the ABA programming which the boy needed during the 1998-99 school year. As noted above, one of the child's teachers, who also supervised his home-based program, testified about the boy's special education needs and the ability of respondent's program to meet those needs. The teacher, who is certified to teach special education and has done graduate work in ABA, was one of the individuals who trained the staff at P.S. 329 in the use of the ABA methodology. She testified that the program was not individualized enough to meet the boy's needs. As an example, she testified that the child's communication skills were being successfully developed in the home-based program through the use of the Picture Exchange Communication System (PECS). She opined that the CSE should have prepared goals and objectives which were specifically related to the use of that system of communication, rather than relying upon the use of sign language and vocalizations. She further opined that the IEP should have specified that a particular toilet training program would be used to train petitioners' son. The teacher also questioned the adequacy of the amount of 1:1 ABA training which the child would have received in the SIE-III program if he had enrolled in P.S. 329. Although the presence of the three crisis management aides and one general aide in the recommended classroom would have permitted a fairly high degree of individual attention, the teacher's time would have had to be divided among five children if petitioners' son were enrolled. Petitioners' witness opined that since three of the four children already in the class had not previously received ABA training, it was unlikely that a very intensive program using that methodology could be employed. Respondent's site supervisor was closely questioned about the actual amount of ABA training which the teacher was able to provide to her students during the school day. The supervisor's testimony revealed that approximately three hours of such training per day was being provided, although she asserted that an additional hour of such training was provided in the students' lunchroom, which was shared with other classes. Petitioners' witness opined that the child needed to continue to receive the kind of intensive, 1:1 program of approximately eight hours per day which he got in his home-based program in order to continue making progress. Her testimony was unrebutted by respondent at the hearing. Upon the limited record which is before me, I find that respondent did not meet its burden of proving the appropriateness of the educational program which its CSE recommended for petitioners' son.

        The burden of proof shifts to petitioners with regard to the appropriateness of the home-based ABA program which they obtained for their son (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [IDEAL] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private home-based program met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29).

        The IBR evaluator recommended that petitioners' son receive a full-day ABA program in order for the child to achieve an appropriate level of development. He indicated that the child required 1:1 programming and that he should be taught by staff who were well versed in ABA (Exhibit B). The teacher who supervised the boy's home-based program testified that it covered all areas of the child's development. She testified that the child had made significant progress in all areas of development, and had demonstrated an ability to retain the skills which he had acquired in his home-based program. The teacher indicated that the child could make eye contact with an adult and he could independently complete certain tasks, such as working on puzzles and matching games. The teacher opined that the boy should continue to receive 1:1 instruction using the ABA methodology because his home-based ABA program had proved to be effective for him (Transcript, page 90).

        The record includes a written description of the boy's home-based program (Exhibit C), a written progress report dated January 6, 1999 (Exhibit D) and a written speech/language report dated January 4, 1999 (Exhibit E). Exhibit C was prepared by the Douglass Outreach Center, and it describes in general terms how a home-based program which is under Douglass supervision operates. Exhibit D was prepared by a Douglass consultant. She reported that the child was compliant with basic demands, and generally sat appropriately and engaged in frequent, spontaneous eye-contact. The consultant also reported that the child had become more proficient in communicating with PECS, and was learning oral motor and verbal imitation skills. The child was able to identify 14 body parts on command, and could execute a number of one-step commands. He had maintained a number of skills, such as matching an object to another object, and could correctly match the letters A-F in random order. His social skills and his fine motor skills were also improving. The boy's speech/language pathologist reported that the child had learned to vocalize certain neutral vowel sounds, and his ability to control the opening of his mouth had improved. I find that petitioners have met their burden of proof with regard to the appropriateness of their son's home-based educational program during the 1998-99 school year.

        The third and final criterion for an award reimbursing parents for their educational expenditures on behalf of their disabled children is that the parents' claim for reimbursement must be supported by equitable considerations. The record reveals that petitioners have cooperated with the CSE and kept it informed of what they were doing. Respondent has not claimed to the contrary, nor has it objected to the cost of the services for which petitioners seek reimbursement. I will note in passing that petitioners' then attorney briefly alluded to a one morning per week socialization program at a neighborhood school which the child had begun to attend. The attorney indicate that "it's part of the forty hours a week that we're seeking reimbursement for" (Transcript, page 9). However, no evidence of that program or its cost is in the record. Accordingly, I will limit petitioners' reimbursement to their actual expenditures for ABA programming in their home, to a maximum of 40 hours per week, during the 1998-99 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their actual expenditures for no more than 40 hours per week of ABA programming in their home during the 1998-99 school year, upon presentation by petitioners of proof of such expenditures.