On Thursday and Friday, September 18-19, 1997 and Monday and Tuesday, October 20-21, 1997, a Level I Impartial Due Process Hearing was convened on behalf of T. in the conference room of the administrative offices of the school district involved. The hearing officer has jurisdiction to hear and decide this matter under Section 14-8.02(g) of 105 Illinois Compiled Statute 5 (School Code of Illinois), 34 CFR 300.506-509 of the P.L. 101-476 Regulations and 23 Illinois Administrative Code 226 Subpart J.
The parties were informed of their rights under Section 14-8.02(g) of 105 Illinois Compiled Statute 5, 34 CFR 300.508, and 23 Illinois Administrative Code 226 Subpart J.
This hearing was requested by the parents (petitioner) on April 28, 1997. The Illinois State Board of Education received the request for a hearing on April 29, 1997. The hearing officer was notified on May 16, 1997 of her appointment. The timeline for the hearing referred to in the above-referenced rules was not adhered to due to the facts that:
1. Scheduling extensions were requested by the parties due to summer vacations.
2. Coordinating witnesses and evaluators was difficult during the summer months.
3. School was not in session and records were not transferred to the parties in time to prepare for the hearing before the school year ended.
4. The petitioners changed attorneys during the summer months.
5. The parties agreed to waive their right to a decision ten school days after the conclusion of the hearing.
1. WHETHER THE SPECIAL EDUCATION PROGRAM OFFERED TO T. BY THE SCHOOL DISTRICT CONSTITUTES A FREE, APPROPRIATE PUBLIC EDUCATION (FAPE) IN THE LEAST RESTRICTIVE ENVIRONMENT (LRE).
2. WHETHER THE SCHOOL DISTRICT HAS COMPLIED WITH THE PROCEDURAL AND/OR SUBSTANTIVE RIGHTS OF T. IN THE PREPARATION AND PRESENTATION OF THE INDIVIDUALIZED EDUCATION PROGRAM (IEP) OF APRIL 21, 1997.
3. WHETHER T.'S PARENTS SHOULD BE REIMBURSED FOR PLACEMENT OF THEIR SON IN AN INTENSIVE APPLIED BEHAVIORAL ANALYSIS (ABA) FULL-YEAR HOME-BASED PROGRAM OF 38 HOURS PER WEEK AND THE COSTS ASSOCIATED WITH THAT PLACEMENT (E.G., EVALUATIONS, EXPENSES AND SUPERVISION).
The parents were informed of their rights and responsibilities with respect to the hearing in writing by the hearing officer and by the Illinois State Board of Education. They were represented by counsel. The hearing was closed and they requested that T. not be present at the hearing.
1. T. s a 3 and 1/2 year old boy who was born on April 11, 1994. In October, 1995, his pediatrician, suspecting a speech delay and oral motor dysfunction, referred the child's parents to a speech and language pathologist for an evaluation of the child. In April, 1996, the doctor again recommended that he be evaluated due to delayed speech and language development.
2. On September 9, 1996, his parents had T. evaluated by a speech and language pathologist, reporting to the doctor that the child had produced no word sounds before the age of two and that his vocabulary exceeded 50 words but contained few word combinations. The parents also documented the difficulty of engaging T.'s attention and his tendency to become overwhelmed in new and highly stimulating situations. The speech pathologist's report stated that the child presented significant deficits in communication in the areas of eye contact, sustained attention, reciprocal interactions and communicative intent. Problems in oral sensory processing and organization (eating and chewing) were indicated as well. Speech therapy with a strong sensory integration component to facilitate language development was recommended, along with a hearing test.
3. On October 2, 1996, a general letter of medical necessity for intensive speech therapy for T. was written by his pediatrician, followed by two prescriptions for speech pathology and occupational therapy in December, 1996.
4. A hearing evaluation was conducted on October 3, 1996 and repeated on February 27, 1997. Both tests indicated that T.'s hearing fell within the range of normal sensitivity.
5. T.'s mother called the school district on September 25, 1996 to determine whether T. was eligible for services. An appointment was made for a home visit which occurred on October 9, 1996, when the school's early intervention facilitator and early intervention social worker visited T. at home to determine his eligibility for services.
6. On October 29, 1996, at 2.6 years of age, an arena assessment of T was done at the school's facility. T.'s mother and the early intervention team - psychologist, speech and language pathologist, occupational therapist, social worker and facilitator - were present. The parents' observations with regard to T.'s delayed speech and language, limited eye contact and temper tantrums, the report of the private speech and language pathologist, and concerns over the child's level of development in cognitive, social and emotional areas and receptive and expressive language (as reported by the above school personnel after their home visit) were all considered. An individualized family service plan (IFSP) was developed, calling for T. to receive individual speech and occupational therapy 30 minutes each per week starting November 8, 1996 at the school and to participate in a weekly playgroup that was set to begin in January, 1997. The school team also suggested that a neurological exam be done.
7. On November 8, 1996, speech and language and occupational therapy
services for T. began on a weekly basis. Occupational therapy goals of
working on reciprocal play, taking turns and sitting were undertaken and
suggestions for improvements in oral motor activities were made to T.'s
mother during the months of November and December, 1996.
8. On December 20, 1996, further goals and activities in speech and language and occupational therapy were developed for T. as part of a refined IFSP in conjunction with his father, who was present at the therapy session. An pamphlet about pervasive developmental disorder (PDD) was given to the father at that time.
9. On January 2, 1997, T.'s parent's took him to a neurologist for an evaluation. A written report was sent to T.'s pediatrician diagnosing the child within the spectrum of PDD/Autism and recommending medical tests to rule out any underlying conditions. Interventions for children with PDD were discussed by the neurologist with T.'s parents, and the doctor indicated the importance of using intensive behaviorally-based techniques (such as ABA) to encourage communication and interaction. A copy of a paper by Dr. Ivar Lovaas outlining his technique was sent to the parents in order to help them decide what type of program they wished to initiate. A reevaluation in two months was requested by the neurologist.
10. On January 14, the neurologist made a general recommendation in writing that T.'s family begin a program of behavior modification modeled on the Lovaas theory to force speech for communication and interpersonal interaction as a matter of medical necessity, so that T. would be able to make his needs known in a emergency.
11. On January 10, 1997, T. began attending the school's play group with his mother, attending six sessions in January and February. Speech and language and occupational therapy services were incorporated by the district into T.'s play group or following it. The goals of the occupational therapy sessions were to provide sensory activities and work on transitioning, structured play and imitation of fine motor skills.
12. On February 7, 1997, the early intervention facilitator received a copy of the neurologist's report from T.'s parents and their request to meet with the district to review T.'s goals and the manner in which those goals would be achieved.
13. On February 25, 1997, the school district obtained parental consent to begin the procedures involved in conducting a full case study evaluation to determine the boy's eligibility for early childhood services. As part of the process, T.'s parents were interviewed to gather information for the social developmental study and psychological report that would be presented at the MDC/IEP conference. The social worker was told by the parents that after research into programs employing intensive intervention based on behavioral techniques on the recommendation of their neurologist, they had arranged for a weekend training session in their home for family and ABA/DTT therapists based on the Lovaas theory, as it was the most statistically proven of all the programs they investigated. Parents expressed concern about their options for T. within the school district and obtaining the most appropriate education for him. The psychologist gave T.'s mother the Childhood Autism Rating Test (CARS) to administer to her child.
14. A two-day intensive ABA/DTT workshop was held in T.'s home on March 8-9, 1997. School personnel were invited but did not attend. An applied behavioral analysis (ABA) home program based on that workshop was started two days later.
15. On March 11, 1997, T. returned to the neurologist for a follow-up visit. The doctor documented T.'s participation in the ABA/DTT program and the significant benefits already occurring in the areas of verbal understanding and communication as reported to him by T.'s mother. He also reported that medical tests performed on T. in mid January had produced no unusual results.
16. On April 1, 1997, an occupational therapy session was held to provide data and help formulate goals for T.'s April assessment and multidisciplinary conference (MDC).
17. On April 3 and April 15, 1997, T.'s mother visited the school's early childhood classrooms to observe the program.
18. On April 8, 1997 an arena assessment was held at which time data for a psychological report was taken, observations of T.'s self-help, social awareness and fine and gross motor skills were made by early intervention personnel and an IFSP was drawn up. T.'s parents were present, along with the early intervention facilitator, psychologist, social worker and speech and language pathologist. Notes regarding the child's present levels of development (i.e., his capabilities and concerns regarding his abilities) were recorded by those present along with the parents' observations of the assessment.
19. On April 21, 1997 an MDC was held to review the data from T.'s case study evaluation. The child's handicapping condition was identified as autism and an IEP was written outlining his needs requiring special education and related services in the areas of cognitive skills, receptive and expressive language, fine and oral motor skills, social interaction, cooperation, compliance and self-help. Annual goals and objectives were written for T.'s needs. The school district recommended its early childhood program as the least restrictive placement for T for 2.5 hours per day, four days a week. Related services of 90 minutes per week of speech and language therapy and 60 minutes each per week of social work and occupational therapy were also indicated. The parents requested that the home-based one-on-one program they were implementing be made a placement option. A written description of that current treatment program was provided by the consultant to the parents' program, who was present at the IEP conference. No provision for an extended school year was made in the IEP and no behavior management plan was drawn up. The parents did not consent to the school
district's recommendation for their son's placement in the school's early childhood program at this conference.
20. On April 28, 1997, a request for a due process hearing was filed by T.'s parents with the school district.
21. On July 17, 1997, T. was tested and evaluated by James Mulick, Ph.D., a psychologist and autism expert at the Ohio State University Medical Center. Dr. Mulick prepared a written report of his findings.
22. On June 26, 1997 and August 21, 1997, T. was observed in his ABA home program by Rudy Lorber, Ph.D., a neuropsychologist. Dr. Lorber also visited the school's early childhood program on September 10, 1997 and prepared a written report.
23. On August 21, 1997, the school district, through its attorney, offered to place T. in a full day early childhood program, four days per week, with a private lunchtime aide between morning and afternoon sessions, resulting in a twenty hour instructional program per week. This offer represented a doubling of the program the school district had initially recommended at the MDC of April 21, 1997 as part of the proposed IEP. No adjustments in related services were proposed in this offer and no description of the extended program was provided.
24. The due process hearing was convened on September 18, 1997. It continued on September 19, 1997.
25. On October 1, 8, and 10, 1997 T. was evaluated and tested by Catherine Lord, Ph.D. and Bennett Leventhal, M.D. at the University of Chicago Developmental Disorders Clinic. A joint report summarizing their findings and recommendations was prepared.
26. The due process hearing was reconvened on October 20, 1997 and concluded on October 21, 1997.
(2) Post-Rowley legal interpretation of a sufficient IEP dictates that it be individualized with unique and specific goals, objectives and services for each child. The court in Hall v. Vance County Board of Education, 774 F. 2d 629 (Fourth Cir. 1985) placed great emphasis on individualization, saying that "Rowley recognized that a FAPE must be tailored to the individual child's capabilities." Id. at 636.
B. The hearing officer finds that school district was aware of T's unique needs as an autistic child when it formulated his IEP as a result of its assessments of him. his participation in the district's early intervention program and his receipt of related services there. the district's receipt of the evaluation of the pediatric neurologist and their knowledge of the ABA program that he was receiving at home.
(1)The factual background T. entered the school district's early intervention program in November, 1996, after an exam in September by a private speech and language pathologist and an assessment in October, 1996, at his mother's request, by the school district's early intervention team. In October, 1996, he was found to be eligible for services and an Individualized Family Service Plan (IFSP) was developed which provided for individualized speech and occupational therapy, 30 minutes each per week, starting in November, 1996, and a weekly playgroup to begin in January, 1997. The team also suggested in October, 1996 that a neurological exam be done and in December, when additional goals were added to
the IFSP, they gave the boy's father a pamphlet on pervasive developmental disorder (PDD).
(2) The neurologist's diagnosis and recommendations In early January, 1997, T's parents took him to a pediatric neurologist, who examined the boy and diagnosed him with PDD/Autism Spectrum Disorder. The doctor testified that he uses the terms "PDD" and "Autism" interchangeably. He recommended an intensive behavioral modification program be implemented as soon as possible to encourage speech. He specifically mentioned as a model the program that had been developed in a controlled study by Dr. Ivar Lovaas of UCLA in 1987. He made a copy of the research which supported that study available to the mother, along with written material describing other models and the positive and negative aspects of all the programs. He suggested Lovaas as "one potential model on which to base their own intervention [program]." The Lovaas model is a 40-hour program using Applied Behavioral Analysis (ABA), a form of treatment that Lovaas developed using discrete trial teaching (DTT), which breaks down activities into repeated, intensive, discrete individual trials and employs positive reinforcement of the child's accomplishments. The U.S. District Court for the Southern District of New York, in a decision on September 5, 1997, took note of the fact that "ABA therapy has been recognized as the only method with any real success in the remediation of autistic symptoms." Mr. X v. New York State Education Department. New York City Board of Education and Community School District 2 in the City of New York, 26 IDELR 854 (S.D.N.Y. 1997) at p. 855. The neurologist also recommended an approach utilizing a consistent block of time in which to implement the therapy testifying that 40 hours would be useful, 10 hours would not. He suggested that whatever number of hours the parents could implement from 20 to 40 -- would be appropriate. He was enthusiastic about the probability of learning success for T. in a program of this sort, since T. was not severely retarded and could verbalize, had some language development and could attach meaning to words. He stressed that retraining a child with non-compliance and behavior problems required a consistent approach, which should start as soon as possible and continue on an hourly, daily, monthly and yearly basis. He warned that gains which occurred from behavioral modification in verbal communication and social interaction would be lost if the program was not followed for an appropriate period of time. In other words, to extinguish negative behaviors and encourage positive ones required constant reinforcement of the positive, or behaviors would revert and regression would occur. He also recommended speech and language and occupational therapy services for T., but did not incorporate them into his written recommendations because he understood the child was already receiving those services through the school district. A few days after she saw the neurologist, T.'s mother contacted the school district. She informed the speech and language pathologist who was servicing T. what the neurologist had recommended, and asked if the district would provide such a program. T.'s mother testified that she was told by the speech pathologist that the district did not provide such a program but that they would provide "a cross-categorical classroom [which] could complement [T.'s] Lovaas program." At that time the speech pathologist gave her the names of parents who were doing Lovaas and the name of a consultant who set up such programs using ABA. The mother also testified that she spoke in January with the coordinator of the school's early childhood program who told her Lovass was considered an individual type of therapy which was not funded by the school district and what they were going to offer her child was only going to be in a classroom. The administrator also recommended that parents see a specialist in autism at the University of Chicago and never expressed any opposition to an ABA/Lovaas program. Clearly, school district personnel were aware that, according to the neurologist, T.'s diagnosis presented unique needs which required an intensive, consistent behavioral intervention program employing discrete trial teaching. In February, T.'s parents also shared the neurologist's written report with the school district and they invited school personnel to attend an ABA workshop to be held in their home in March.
(3) The Early Interventions School district personnel were also aware of T.'s unique needs for intensive and consistent individualized behavioral intervention and teaching as a result of the early interventions (before age three) he received in their program from November, 1996 through March, 1997.
(a) T.'s mother testified that the early intervention team had a wholly different attitude about what her child needed than what the IEP actually provided. Testimony at the hearing confirmed the mother's position. The school's early intervention services for T. (before age three when early childhood services begin) were outlined in the IFSP of October, 1996. They consisted of individual speech and language therapy and occupational therapy for one hour a week in November and December and a playgroup incorporating speech therapy followed by individual occupational therapy services in January and February. The playgroup consisted of eight children, each with a parent, plus the classroom teacher, speech and language pathologist and social worker. In fact, as many as 19 people could be present at one time in the playgroup. The speech and language pathologist and the occupational therapist (who worked with T. in the fall of 1996) interacted one-on-one or two-on-one with the child. With the mother additionally present, the relationship was even more intense than a one-to-one intervention.
(b) The speech pathologist testified that T. was having a difficult time in the playgroup tolerating circle time, the noise level in the room and the presence of other children, and that she spent more than half the playgroup session working one-on-one with him in an effort to help and guide his mother.
(c) The early intervention social worker who was part of the team that suggested a neurological exam be given, testified that someone had to sit with T. in playgroup all the time (one-on-one) to make sure he attempted circle time. She admitted he frequently tried to run out of the room and after six weeks in playgroup, still needed adult physical containment. She testified that, in her opinion, a wide range of techniques work best with autistic children and that she tried to be consistent and to apply behavioral methods with them where possible. She felt progress was best measured by observation, and used the taking of notes as a way of reporting what was done rather than charting a record of T.'s progress.
(d) Though T.'s mother did not doubt the good intentions of personnel during this period, she testified that they played a consulting role, giving her many ideas on how to parent and what to do at home without teaching the child anything substantive. The focus in playgroup was on counseling her, and her recollections of specific things that T. learned did not go beyond how to use and understand the word "more." She also recounted how difficult it was to get him into the classroom and keep him there, and for him to handle circle time and loud noises. In subsequent sessions, it took two people to hold the child down and get him engaged in an activity. Her testimony recounted his lack of interest in what other children were doing and, for the most part, only she (T.'s mother) could engage his attention.
(e) The speech and language therapist corroborated the fact that she would give T.'s mother suggestions during playgroup and therapy on how to handle the child. She saw him for a total of 15 hours from November, 1996 to April, 1997, including the time in playgroup. She also discussed with the mother the three generic options that were available in the district for placement of T. after his IEP. They included the early childhood program and two other placements which were not self-contained special education programs. Based on what the therapist knew of T. from her interactions with him during that time, she testified at the hearing that she would have recommended an extended school year for him as part of his initial IEP, but she wasn't running the meeting and did not do so.
(f) The occupational therapist, who co-treated T. with the speech therapist from November to December, 1996 and treated him individually in half-hour sessions following his playgroup in January and February, 1997, also testified that, based on her work with autistic children and T. in particular, he could benefit from an extended school year. She described her approach to teaching as an eclectic one, where the cues come from the child with her as facilitator. For this reason, she could not use more intensive (ABA/Lovaas) techniques. She also described her treatment notes as an informal record of her sessions with T. rather than a documentation of his progress in the school's program.
(g) The early intervention psychologist interviewed T.'s parents and tested and observed T. in February, 1997 to prepare a report for the April assessment on which the IEP was based. She testified that T.'s cognitive skills were close to average and indicated a good potential to learn. She felt that the parents' goal of normalizing the child in a regular first grade classroom was cognitively realistic. Though her opinion of ABA/DTT was that it had value in its consistent approach to home and school learning, she conceded that she was uncomfortable with its intensity because she preferred to allow the child to take the lead and build on that lead rather than using the rote, repetitive drilling she believed underlied DTT. When asked if the district had any specific program for autistic children, she stated that they did not offer such programs but treat each child individually.
(4) The Awareness of the ABA Program and Its Intensity. School district
staff were certainly made aware by T.'s parents of the fact that they had
started an ABA program in their house in March, 1997. They were generally
familiar, depending on their level of exposure, with the intensive teaching
approach that was being used in that home-based one-on-one program. The
hearing officer believes that the improvements the early intervention team
observed during their April assessment of T., such as his ability to sit
and be attentive to learning, were not accomplished as a result of his
attendance at the school's playgroup in January and February, 1997. A videotape
that his parents presented as part of the record indicated that before
he started the ABA program in March, he could not sit and attend to learning.
Despite their awareness and observations of the progress from the ABA program,
the testimony of school personnel indicated that they were not comfortable
with, and generally opposed to, incorporating this intensive, behavioral
approach. They consistently expressed confidence at the hearing in a vague,
generalized, non-specific, eclectic, child-led approach to educating autistic
children. However, they could not clearly describe to the hearing officer
the characteristics of their approach or how they could document progress
in any meaningful way when using it.
C. The hearing officer finds that despite a clear awareness of T.'s unique needs and what his parents were doing privately to implement those needs. the school district proposed an inappropriate program in its IEP and did not comply with the procedural safeguards as required by IDEA during the IEP process.
(1) The IEP Contents The school district's proposed IEP of April 21,
1997 was formulated after a case study evaluation beginning in February
and an arena assessment in early April. The case study evaluation documented
the child's educational needs in the areas of cognitive skills, receptive
and expressive language, fine and oral motor skills, social interaction,
cooperation, compliance and self-help. Case study evaluation components
also included a medical review with hearing and vision tests, social developmental
study and educational history. The arena assessment contained psychological,
speech and language and motor skills evaluations. At the IEP meeting, annual
goals and short-term objectives were drawn up based on these needs, and
placement of the child in the district's early childhood cross-categorical
program was recommended. The program consisted of 2.5 hours per day, four
days per week (a total of ten hours) with 90 minutes per week of speech
and language services, 60 minutes per week of occupational therapy and
60 minutes per week of social work, all of which were to be integrated
within the group setting. A behavior management plan was "to be developed"
and the question of extended school year was "to be determined." No mention
was made of a classroom aide.
(2) The hearing officer finds that the school's 10-hour program proposed for T. was not appropriate to meet his unique needs for an intense education. The school district knew what the issues were in educating this child since he had been in their early intervention playgroup and had been receiving speech and language. occupational therapy and social work services for six months. both individually and in the playgroup setting The early childhood program it was proposing was actually less intense than the early intervention one in that there was less adult supervision (no parents present in the classroom to engage the child and help reduce inappropriate behaviors) and related services were to be delivered exclusively in a group setting. Aside from accepting the diagnosis of autism, no discussion of the neurologist's report occurred at the IEP meeting. Contrary to the neurologist's recommendation for a consistent and intense program like Lovaas, which suggested a 40-hour week to achieve results, the school's class would only meet four days a week for 2.5 hours per day, for a total of 10 hours a week including related services. Thus, the total school program constituted 1/4 of the level of hours suggested by Lovaas and less than half of a minimum 20-25 hours per week that autism experts testified was necessary to achieve results. Though the early childhood coordinator said the school "chose" a different program for T., the district clearly gave him the standard 10 hours and did not take into consideration what would be minimally adequate for this child.
(3) The hearing officer finds that the early childhood program placement recommended by the school district was chosen because it was the only available school-based placement for T.. not because it best met his needs. As a result. T.'s IEP was substantively inadequate.
(a) Two of the three school placements that were under consideration for T. were not viable options for him. The other placements were both regular education programs, one with support services, the other with resource services. T.'s mother testified that there was no discussion of what would be an appropriate placement at the IEP meeting. Though she had been informed several months before by the early intervention speech and language pathologist and the early childhood coordinator that this was the only placement the school had available for her son, she testified that the early childhood coordinator told her (when she visited the early childhood classroom in April before the MDC) that it might be possible to bring an ABA therapist into the classroom to work one-on-one with a child. Since the mother was not opposed to having her child in an appropriate school setting along with what she was doing at home, she said she came to the IEP meeting with an open mind, and the intent to participate in the development of an appropriate, solid education plan for her son. Yet, she found the school district to be insistent on its placement decision. When the early childhood coordinator was asked at the hearing why the school did not take the ABA recommendation into account when formulating the IEP, she answered that the school program was appropriate. The director of student services testified that the recommended placement was the only district placement that met T.'s needs, so the ABA program was not included as an IEP option because the right placement had been "found." The implication of both administrators' testimonies was that regardless of the child's diagnosis, the school district felt it could provide a program for the child and had decided beforehand what that program would be composed of
(b) The case of Malkentzos v. DeBuono, 923 F. Supp. 505 (S.D. N.Y. 1996), is instructive in the case of T. In Malkentzos, the parents of a two-year old autistic child enrolled in both the school's early intervention program and a private home-based ABA program, requested the school to modify the child's IEP and provide a 40-hour ABA program. The school denied their request due to lack of providers. Though a psychological evaluation in February, 1995 recommended a 40-hour ABA program, the school again turned it down. Instead, they amended the IFSP to provide 8.5 hours of ABA per week (6 in the home and 2.5 hours of speech at a hospital) and then modified the IFSP later in 1995 to a 12.5 hour program of structured play in the school setting. The parents requested a due process hearing and appealed its findings to the United States District Court, which granted a preliminary injunction and ordered the school district to reimburse the parents for their home-based therapy and to provide 40 hours of ABA per week or continue to reimburse the parents for providing such services. The school district appealed to the Second Circuit, which vacated the injunction on issues not reaching the merits and remanded the issue of reimbursement to the U.S. District Court. The importance of this case lies in its holding at p. 515 that the school's satisfaction of its obligation under IDEA to meet the educational needs of a disabled child on a substantive and personal level means
. . .what is "appropriate" to the child's needs is being defined by the program rather than defining the program. I . at 514.
By insisting on its recommendation, the school district in T's case was in clear violation of the holding in Malkentzos. As in Malkentzos, the record in T's case had no evidence to show that the IEP (IFSP in Malkentzos) was designed to address the child's particular disability after his diagnosis of autism. Placement of T. in a cross-categorical classroom with non-autistic children (as the school did in Malkentzos) might cause regressive behavior. No substantive discussion of autism and why the school's early childhood program was appropriate for T. as an autistic child occurred at the IEP meeting. The school district did not show that its program was reasonably calculated to enable T. to receive an educational benefit and that it conferred a FAPE under the mandates of IDEA or Rowley and its progeny.
(4) The hearing officer finds that the school district's failure to
properly address T.'s need for a behavior management plan in developing
his IEP rendered it substantively inadequate. The statement on the IEP
that a behavior management plan was "to be developed" clearly acknowledged
T.'s need for such a plan. The district was aware of T.'s problems with
behavior and compliance. It knew of his self-stimulatory behaviors such
as echolalia, that he had problems in a group taking directions, remaining
there, making transitions, dealing with loud noises and unfamiliar adults
and the presence of other
children. Although goals were listed on his IEP for reducing these compliance and cooperation problems, there was no procedure or schedule for evaluating his progress and no percentage which would indicate mastery of the criteria or meeting those objectives. Clearly, the school district was taking a wait-and-see approach to behavior issues by not deciding how to deal with them unless and until he entered the program. The early childhood psychologist who would be part of the team fashioning a behavior management plan for T. testified that she had a different perspective of what constitutes an appropriate educational program for an autistic child than those who advocate an ABA/DTT approach. She admitted it was possible that the school program might not always meet the needs of autistic children. Nevertheless, she felt confident that the school's program could address T.'s needs though she had not even met him. Despite some training in DTT, she stated she had never organized any programs about it for the school district. An early childhood teacher, who might have taught T. had he entered the program, testified that although she also had some training in DTT and sometimes used behavior analysis management techniques in the classroom with autistic children, she preferred to employ an eclectic approach to teaching, taking cues from the child in an effort to redirect inappropriate behavior. She also had not met T. and was not at the IEP meeting, but somehow felt she could concur with the district's recommendations. The early childhood coordinator testified that the school district had "techniques" it could employ in the classroom for managing the behavior of autistic children. Though she had only met T. for a few minutes, the early intervention staff that formulated the IEP recommendations were thoroughly familiar with T.'s behavior problems and needs. They could have formulated a behavior management plan and made it part of the child's IEP. The fact that the child never entered the program does not justify not properly formulating that program.
(5) The hearing officer finds that the failure of the school district to propose an extended school year as part of T.'s early childhood program also rendered the IEP substantively inadequate. The school district did not include an extended school year as part of its recommended program. When the subject of extended school year came up, school personnel were told not to discuss the possibility before the issue of whether the child would regress had been decided. Nothing further was then said about it, and it was written on the IEP that the subject was "to be determined." Both the early intervention speech and language therapist and the occupational therapist testified at the hearing that they would have recommended an extended school year had they been asked for their input at the IEP meeting. T.'s mother testified that the early childhood coordinator had told her it was a rare thing to put a child in extended school year, though the coordinator stated at the hearing that most autistic children did ultimately receive an extended school year. The coordinator claimed that the issue would be determined either at T.'s annual review (April, 1998) or 30 days after he entered the program, and since he never entered the program, it was not decided. Also, the administrator admitted that the early intervention team could have made the recommendation on extended school year at the MDC but did not. However, had T. entered the program after his IEP, 30 days would no have remained in the school term in which to resolve the issue. The neurologist's recommendation for a consistent program to prevent regression would clearly indicate the immediate need for an extended school year.
Together with the school's experience of what T.'s behavior was like in a classroom, an extended school year would have been a reasonable suggestion for the school district to make at the MDC as part of an appropriate IEP.
(6) The hearing officer finds that the issue of related services was handled improperly at the IEP meeting. T.'s mother testified that no discussions as to how much time was needed and why were conducted in any of the areas where special services were recommended (speech and language, occupational therapy and social work). She observed the number of minutes per week of each service that T. would receive being entered into his IEP in roll-call fashion. No discussion occurred among school personnel, parents or their representative regarding what would be an appropriate amount of time. The early childhood speech and language pathologist and occupational therapist who would be servicing T. were not at his IEP conference and had not met the child. They testified that they do not work exclusively one-on-one to provide services directly to any children and that they would have to actually work with T. to know whether the goals listed on the IEP were appropriate for him. The early childhood social worker who would be working with T. was present at the MDC but had not met the child either. She stated that she worked with the goals as they were set up in a group setting and did not remove children from the classroom to work with them. She would teach social skills during group activities such as circle time and practice them in a group setting during various activities such as playtime, snacktime or arts and crafts.
(7) The hearing officer finds the school district's failure to seek any expert opinions as to what would be an appropriate program for T. if it disagreed with the neurologist's recommendations was improper. Though an autism consultant was on the witness list, he was not called to testify at the hearing. All the school personnel who testified at the hearing from the early intervention, early childhood and administrative staffs, said that even if they had some familiarity with, or in some cases training in DTT, they were not comfortable using it, nor were they experts in teaching autistic children. Yet no experts were sought by the school district to help develop T.'s IEP and no outside evaluation by an autism expert was done. Though the school had repeatedly suggested that the child be examined by a pediatric neurologist and had given the mother the name of an autism expert at the University of Chicago as well as the names of parents doing ABA, the district was unwilling to secure its own evaluation of T. before proposing the IEP if it disagreed with the findings of the neurologist. The district was willing to accept the diagnosis of the parents' neurologist, which was later confirmed by numerous experts who testified at the hearing, but not his recommendations which were corroborated by those experts. In claiming it did not have to accept those recommendations, because it had already found a program and an expert was not needed, the district is implicitly admitting that it did not consider the experts' recommendations at all. The program the district "found" existed prior to the neurologist's diagnosis of T. with PDD/Autism.
(8) The hearing officer finds that the IEP process violated the intent of federal law and failed the Rowley test because parents and their representatives were not equal participants in formulating the IEP. 34 CFR Part 300, which contains the implementing regulations of IDEA, has an interpretation of the IEP requirements in Appendix C. Questions 26 and 55 specifically relate to the role of the parents at an IEP meeting and state the following:
Note: In some instances, parents might elect to bring another participant to the meeting, e.g., a friend or neighbor, someone outside of the agency who is familiar with applicable laws and with the child's needs, or a specialist who conducted an independent evaluation of the child.
No. It is not permissible for an agency to present a completed IEP to parents for their approval before there has been a full discussion with the parents of (1) the child's need for special education and related services, and (2) what services the agency will provide to the child. Section 602(9) of the Act defines the IEP as a written statement developed in any meeting with the agency representative, the teacher, the parent, and whenever appropriate, the child.
. . the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents. The legislative history of Pub. L. 94-142 makes it clear that parents must be given the opportunity to be active participants in all major decisions affecting the education of their handicapped children.
Contrary to the intent of the law, a full review and discussion of placement, goals and services recommended for T. did not occur. T.'s mother was not allowed to give input on the particulars of the ABA placement she had started in her home or to include that placement as an option on his IEP. The district was also unwilling to allow the supervisor of T.'s ABA program, who was present at the IEP as an advocate for his needs, to describe those needs and help determine appropriate goals. The supervisor testified that, after T.'s mother insisted, she (the supervisor) was allowed to include a handwritten synopsis of the ABA program as an addendum to the IEP, but not to discuss it in terms of what would be appropriate academic and social goals for T. The mother said she did not pursue the idea of a combined home and school program with the school district at the time because she felt the school's position was inflexible and to do so would be futile. When the parents brought up the subject of whether an extended school year would be provided, the school district was unwilling to discuss it. The determination of whether T. required a behavior management plan was also not pursued. Instead, the school district made notations that a behavior management plan was "to be developed" and an extended school year was "to be determined."
(9) The hearing officer finds that the school district's written presettlement offer of a double program did not cure the procedural and substantive inadequacy of the program it had offered to T. at the IEP. The district's offer on August 21, 1997 to double the number of hours it had originally proposed as part of the IEP indicated it knew the 10-hour program first proposed was inadequate. The offer came three weeks before the hearing and several months after the IEP conference. It was for 20 hours a week, including a morning session of 2.5 hours and an afternoon session of 2.5 hours, four days per week. It also included a one-on-one aide for the child to supervise his lunch between the two sessions. No details were provided regarding the structure of the program and whether the original plan for delivering related services would be altered. The role of the lunchtime aide was not described. Again, no mention was made of an extended school year or was a behavioral plan suggested. The district's director of special education testified that the offer of a double program was not based on any rethinking or reassessment of T.'s educational needs but in response to the filing for a due process hearing by T.'s parents. The early childhood coordinator conceded at the hearing that the double program would have needed a plan in order to provide some educational benefit. An early childhood classroom teacher testified that she had no children in a double program. No meeting was suggested by the school district to discuss its offer. The mother stated that she felt there was not an open door to settlement when she asked for details via her attorney and no attempt to discuss or negotiate the offer was forthcoming. The hearing officer believes that the offer was not to provide a more effective or intense program in response to the child's unique needs, just a longer day which would not confer any additional educational benefit.
D. The hearing officer finds that both the independent evaluations of T. (conducted before the IEP and afterwards) and the evaluators' testimony about T. at the hearing clearly show that the school district's proposed program was not appropriate for his needs.
(1) The School's Legal Obligation with Regard to Evaluations IDEA and its implementing regulations, 34 C.F.R Part 300, discuss the right of a parent to obtain an independent educational evaluation of their child in §300.503 (c)(l) & (2):
If the parent obtains an independent evaluation at private expense, the results of the evaluation: 1) Must be considered by the public agency in any decision made with respect to the provision of a free appropriate public education to the child, and (2) May be presented as evidence at a hearing under this subpart regarding that child.
The case of Mr. X v. New York State Education Department. New York City
Board of Education and Community School District 2 in the City of New York,
26 IDELR 854 (S.D.N.Y. 1997) exemplifies the critical legal role expert
evaluations play in determining what constitutes an appropriate IEP. In
that case, which has many factual similarities to T.'s situation, the parents
rejected the school district's IEP for their three-year old autistic child.
The school proposed a 25-hour ABA program in a privately-owned nursery
school with a one-on-one aide, subject to funding approval. Individual
and group speech and language therapy was also included. Instead, the parents
requested the continuation, at district expense, of the home-based 40-hour
ABA program which they had begun prior to the child's being diagnosed as
autistic. The court held that the school's IEP did not constitute a FAPE
since it was
(2) The Independent Evaluations and Hearing Testimony
(a) In July, 1997, after T. was in his ABA program for four months,
T.'s parents asked a professor in the Department of Pediatrics and Psychology
at Ohio State University to test and evaluate the child. The professor
is a Ph. D. and autism expert with extensive experience evaluating autistic
children. His testimony by telephone at the hearing confirmed the neurologist's
diagnosis of autism spectrum disorder and its related characteristics (such
as echolalia, short attention span and good motor ability) and described
the child's skill level as borderline in areas requiring comprehensive
use of multiple skills anti adaptive behavior. In expressive and receptive
vocabulary, T.'s skills were thought to approach the average range. After
T.'s July testing and based on the parents' reports about the attainment
of behavioral objectives and the acquisition of vocabulary, the evaluator
described the improvement he saw as a result of T.'s ABA program. He testified
to T.'s acquisition of new skills by viewing videotapes and comparing the
child's performance in a February, 1997 school assessment to his ABA program
from March through August, 1997. He also testified to the child's acquisition
of vocabulary skills (the testing found T.'s vocabulary to be normal),
which the school psychologist had described in her IEP evaluation as only
being about 50 words and which she could not place on a standardized developmental
scale. In his opinion, the attainment of 63 planned behavioral objectives,
which was documented in the home program, constituted observable progress
consistent with the goals of T.'s ABA program and providing educational
benefit. The tapes showed
improvement in his avoidant behaviors and engagement in his learning situation. He recommended continuation of the home-based program since it was clearly of benefit. In his experience, the outcome data on home-based as opposed to center-based (school) programs showed that home-based programs were more effective. Research has shown, he stated, that the home environment is a more beneficial one in which to learn speech because it has more personal meaning to a child as compared to a school setting. His testimony stressed the long-known importance of early intervention for children with developmental disabilities, whose learning curves have been shown to be slower and to level off sooner than regular children. In the preschool years, the difference is statistically insignificant but increases dramatically after that, so the young child has to learn at a faster rate than normal in order to catch up. In order to do that, he said, an effective instruction pattern has to be established, identified and maintained for a considerable period of time. The study of Dr. Ivar Lovaas, despite its critics' objections, was instrumental in showing, in a controlled trial, that the adaptive skills taught to children older than preschool age were less likely even with intensive behavior modification techniques to be maintained than in younger children. It is his experience that children with autism learn from the reinforced practice of behavior, but unlike other children, they enter the learning situation (due to their neurological dysfunction) with a different behavioral repertoire. Based on his observations of T., he felt that the child could not currency benefit from group instruction in a cross-categorical classroom, because he would withdraw from interaction with both children and adults and would practice withdrawal behavior in the group instead of learning. Until language and a preference for interactive behavior are developed, socialization would not be of benefit to T. He concluded that the child needed individualized instruction in order to learn without distractions that would interfere with his attention to learning and the ability of those who were teaching him to evaluate what he was learning. Therefore, based on T.'s progress in his ABA program, the scientist's empirical research, lack of positive data from school-based programs and T.'s test results, it was the evaluator's opinion that the child should continue in the home-based program that has been shown to benefit him by promoting effective and efficient learning.
(b) Another doctor who did not evaluate T. was hired at parents' expense to testify at the hearing about autism. He had 25 years experience with autistic children and had directed a multistate replication of Lovaas's 1987 research study. He also had extensive experience with ABA for treating autistic spectrum disorders by working systematically and individually on behavior using DTT therapy (Lovaas's behavioral approach). By drilling and stimulating with high-frequency questions, he testified that impressive results could be attained from close supervision of these children. Again, he stressed the key to acquiring conversational language and reducing adverse behavior was in intervening early, using parents and continuing treatment for an extensive period of time (up to three years). He felt that to provide the intensive level of interventions necessary (3-4 per minute v. 3-4 per hour in a classroom setting) for a child like T. to achieve results required a program run by staff trained in a Lovaas-type model using well-documented procedures. In his opinion, state certification is not as important as being trained in how to do ABA using DTT in order to achieve results. The problem with a cross-categorical classroom, he stated, was the low level of intervention provided there. It was also his feeling that the model of intervention for related services (short sessions of up to an hour or two a week) was for those providing these services to work closely as teaching supports with the therapists who interact directly with the child during all his waking hours.
(c) A clinical psychologist, board-certified in behavioral interventions with an M.A. in school psychology and long-time experience evaluating children in schools, was also hired by the parents to evaluate T. in his ABA program at home and to visit the school's early childhood classroom. He was asked to provided feedback as to the appropriateness of the school's program by preparing a report and testifying at the due process hearing. He claimed to have no investment in selecting any particular method or model, only to determine what behavioral program would enable T. to learn. He evaluated the child at home in June and again in August, 1997. He also viewed a videotape of the child's first ABA sessions in March. His opinion was that the June session he observed showed significant improvement in compliance, linguistic skills and tasks T. could undertake compared with the March videotape. His August observation showed steady progress in that more complex self-expression, linguistic behaviors, ability to label new textures as well as better compliance and social interaction were in evidence. He examined the test data from the July evaluation of T. in Ohio documenting the child's learning potential, which indicated to him that part of T.'s brain was able to process some material at an age-appropriate level. This fact, in his opinion, coupled with the graph developed in T.'s ABA program documenting his rate of learning and acquiring specific skills in that environment, showed an acceptable rate of learning that was educationally beneficial. In a September, 1997 visit to four of the district's early childhood classrooms, he observed some children with greater and lesser needs than T., and stated that he saw no examples of intensive individualized behavioral intervention going on there which would have been appropriate for T. One interactive situation he saw which vaguely resembled discrete trial teaching wasn't implemented by rectifying the improper behavior and reinforcing the correct one. In his opinion, the absence of a one-to-one ratio meant that those children with the greatest needs (i.e., displaying inappropriate behaviors) would command the staff's attention, while those displaying independence or appropriate behaviors would not get the positive reinforcement that is a cornerstone of ABA/DTT. He could not gather any sense of whether a consistent rationale existed for applying an intensive behavioral model to teach autistic children in the school's program. Instead, his professional impression was that no program beyond a generalized approach was in place. His questions about how autistic children would learn in the school's program were not answered by school administrators, reinforcing his feeling that placing T. in such a distracting setting would risk degeneration and/or loss of the skills he had acquired and might generate a regressive acquisition of inappropriate behaviors. Doubling such a program would not make it appropriate either, in his opinion, since the school program had none of the characteristics of the one in which T. was making progress. His report recommended an intensive program of up to 40 hours as a target goal, in which the systematic application of ABA behavioral instruction techniques would be done by properly trained therapists. His opinion was that T. needed to continue receiving the specialized form of intensive education which was working for him at home, not a generalized version of it with selective application by untrained (though certificated) special education teachers in the school's cross-categorical classroom setting. To preclude deficits and the need for more extensive services in the future, T. needed to be, in his opinion, in a program that enabled him to make progress, such as his home ABA program. The fact that it might also coincidentally provide a better learning experience than what the school district was proposing did not change his view that that ABA program was appropriate.
(d) Early in 1997, before the IEP was formulated, the school district's early childhood program coordinator had given T.'s parents the name of an expert in autism at the University of Chicago. They were able to arrange an evaluation on October 10, 1997, which occurred before the due process hearing was completed. A written report describing testing, observation and results of that evaluation was shared with the school district and became part of the record for the hearing officer to consider at the hearing. The evaluators were two professionals from the University of Chicago, one a Ph.D. professor of psychiatry, the other a medical doctor who was also a professor of pediatrics and psychiatry there. They filed a joint report and testified separately by telephone at the due process hearing. Their combined experience totalled more than 2,000 children with PDD/Autism The doctors had both examined the IEP the school district proposed and the parents rejected in April, 1997. Both felt that T. needed more intensive interventions in terms of time, adult attention and planning of activities than what the IEP called for. It was their clinical opinion that placement of T. in a program without sufficient individualized structure and/or without a clear behavioral plan, even for a few weeks, would be inappropriate and regressive. The medical doctor also stated that the IEP was inappropriate in the low level of intensity being proposed, which would risk regression and loss of skills T. had gained in his home program. He felt the school did not understand the complexities of teaching this particular child if it was willing to offer such a diffuse, disruptive and diverse program for a child like T. His lack of presocial skills and inability to focus on the acquisition of language and social skills made the cross-categorical school classroom an inappropriate setting in which to support learning. Like the other experts, the medical doctor referred to the scientific window of opportunity for learning which exists before age five in autistic children, while their central nervous system is still flexible and certain language and social skills can be acquired most easily. Accordingly, there is a need to front-load the system in order to give T. the tools for him to be successful in achieving inclusion in regular education and its social demands later on. A child like T. would respond to a full-day, full-year individualized program structure such as the one he was in, utilizing the ABA/DTT format, which required complex particularity of skill acquisition, repetition with precision and reinforcements in repeated trials. Both professionals concurred that the 38-hour program T. was receiving was beneficial for him and clearly not inappropriate. The fact that the child is higher-functioning in the areas of cognitive skills and language indicates a greater likelihood of success for him than for most children in a program of this kind. Unlike 70% of autistic children, T. is not mentally retarded and appears to be in the low-average-to-average range in non-verbal areas. His dysfunction in verbal areas will therefore improve, they believe, as he acquires language skills. Both experts suggested that he continue in the general context of the ABA/DTT program, with the goal of moving toward an integrated program by modifying the discrete trials where necessary to allow the acquisition of more complex social skills and behavioral communications that could be applied later in a wider social context (the school setting) where flexibility is necessary. In their opinion, he needed to continue his individualized program for several more months and then be reassessed to see if the school's cross-categorical program could be combined with the ABA home program without distractions. Combining the two would be difficult until he is ready to generalize his language and behavioral skills in a social setting, and they believed an extra aide in the classroom appropriately trained in ABA would need to be present at that time to prevent regression. The professor who evaluated T. together with the medical doctor concurred with his findings and recommendations. Though she conceded that ABA techniques are not always the correct strategy for autistic children, in T.'s case she felt they were extremely beneficial. She attributed this to the fact that he was receiving intensive teaching by an adult whose primary responsibility was to teach him in a direct, preplanned strategic way using well established techniques. Since T.'s autism doesn't allow him to learn by imitation, he needs to use his strength in non-verbal and cognitive areas to build language and play skills. That consideration dictates that learning occur in an environment where a significant part of his day is spent with one-on-one programming. In her opinion, the minimum number of hours is arbitrary, but the accepted standard for children with autism is a full day of school -- at least 25 hours a week. She testified that the maximum number of hours isn't as important as how those hours are used, so doubling of hours as the school had proposed would not be sufficient. A one-on-one aide during lunchtime without planned contact or even an individual aide in the classroom would not in itself be adequate to help him generalize his skills without the undivided attention of a therapist trained in ABA techniques to supervise and design activities and monitor the child's progress. T. would also benefit from having available the skills of a speech and language pathologist and an occupational therapist to help identify goals and techniques to reach those goals. The implementation of their objectives would depend on how the child's day was structured and would need to be applied accordingly. She joined her medical doctor colleague in proposing certain modifications to the child's ABA program with the goal of allowing him to begin to interact with other children in a less structured setting by year's end. With the cooperation of parents and educational professionals who are familiar with the child's needs and can monitor his progress, it was her feeling that appropriate goals and the refinement of techniques for achieving those goals could be determined.
E. The hearing officer finds that the ABA program the parents initiated
to educate their autistic child was not a conflicting methodology instituted
in violation of the school's legal right to determine appropriate teaching
methods. The school district's claim that they had a right to reject the
neurologist's recommendations, the parents' program or later evaluations
because they had found an appropriate program and parents were trying to
dictate methodology is not justified by the law
or the facts.
(1) The Lachman Case The school district claims the case of Lachman v. ISBE, 852 Fed. 2d 290 (7th Cir. 1988) is determinative of that legal issue here. In that controversy
The court went on to say that:
(2) A Level II Hearing decided on July 23, 1996, In the Matter of the Special Education of Aaron Fisher and Ball-Chatham Community Unit School District No. 5, Case #96-012, bears great similarity to the situation in T.'s case and supports this hearing officer's finding. In Fisher, the Level II hearing officer ruled in favor of the child's parents in a dispute between the parties about the behavior management needs of their three-year old autistic child, who was enrolled in the school district's early childhood pre-kindergarten program and an ABA home program. The school district did not evaluate the child for a behavior management plan or refer him for an evaluation. When he entered kindergarten, the child's IEP contained no behavior management plan and the district denied his parents the right to use a consultant from their home program. The Level I hearing officer found the absence of an effective behavior management plan and the denial of a consultant caused behavioral regression in kindergarten and denied the child a FAPE. Though the hearing officer recognized Lachman's holding that a school district cannot be compelled to implement a program or service if there is a choice of two acceptable methods for meeting the child's needs, he held that the threshhold issue was whether the child was provided a FAPE. Since the district did not provide a FAPE, there is no issue of a choice between two acceptable methodologies (as in Lachman 852 F. 2d at 297) or educational theories (as in Rowley 458 U.S. at 207-8). Accordingly, the school district was obliged to hold an IEP to develop an appropriate behavior management plan and could not refuse to use the parents' consultants.
(3) The Fisher case is distinguishable from the Level II hearing decision In the Matter of the Special Education of Eli Augustus and District No. 299 Chicago Public Schools, Case No. 95-021 decided on November 10, 1995, which the school district cites in its prehearing brief. In that decision, the Level II hearing officer rejected the parents' request for reimbursement for a private therapeutic home-based program for their autistic child, finding the school district had provided the child a FAPE. However, unlike the program the school district proposed for T., the Chicago Public Schools program was for thirty hours per week including an extended school year. The class was designed specifically for autistic children and used intensive communication intervention. The hearing officer there found no procedural errors in developing the child's IEP.
F. The hearing officer finds the ABA program initiated by T.'s parents was appropriate and they had no obligation to try out the school's placement before rejecting it as inappropriate.
(1) The school district has cited the case of Carlisle Area School v. Scott P., 62 F. 3d 520 (3d Cir. 1995) to show that the district need not provide an optimal level of services or even a level that would confer additional benefits, since the IEP required by IDEA represents only a basic floor of opportunity. In other words, the school district's program did not have to be better, or even equivalent to, the ABA program, only appropriate. In Carlisle, the parents were not deemed to be entitled to residential placement, even though that might provide additional advantages for their student, and the school district did not have to prove anything other than that the IEP which they advocated conferred some educational benefit. The hearing officer agrees with the school district that program optimality is not the standard for determining T.'s IEP. The school district only has to prove that its program is appropriate, not that the parents' program is inappropriate. However, it is the hearing officer's finding that the school's IEP was not appropriate because it would not allow T. to reasonably benefit from his placement. The fact that the ABA program would work for T. does not make it the optimal program as opposed to an appropriate one. The facts in Carlisle are different from the case at hand. Carlisle was concerned with whether a program optimality or an appropriateness standard should be applied in determining which is the least restrictive environment. The school district here also uses Carlisle to support its contention that the parents were requiring the district to provide a more intense program, superior to ABA, rather than one that is appropriate. Again, this conclusion is not supported by the facts. The issue of intensity goes to the school district's responding to the child's needs for specialized programming that would make the IEP appropriate, not equivalent, optimal or superior to the parents' program. Parents here do not contend that only their placement could provide T. with the requisite intensity of services needed for him to make any progress. Their argument does not turn on the alleged superiority of their program's intensity, but rather the fact that the school district did not provide intense programming of any kind. The district's offer to double the program to 20 hours did not by itself make it more intense or appropriate. The IEP may have identified areas of need, but did not provide the proper placement to address those needs in a way which would confer meaningful educational benefits and ensure more than minimal progress.
(2) The school district has also said that parents' and experts' fears
that T. would regress if placed in the school's program is not a basis
for rejecting that placement as inappropriate, since T. never actually
took part in it. The hearing officer does not agree. The school district
did not refute any of the scientific research and testing which was presented
at the due process hearing regarding regression. In fact, the school district
did not contradict or refute the neurologist's report, which documented
that skills could be lost if T. was not in a consistent, intensive behavior
modification program of up to 40 hours per week. The district received
this information prior to the IEP conference and had ample opportunity
to refute any data inconsistent with its own case study evaluation. Regression
is clearly not progress of any kind in an educational setting. Yet the
school district rejected the neurologist's recommendations, knowing that
none of the suggested elements were included as part of his IEP. The school
district knew that T.'s parents had started the ABA program and were seeing
dramatic, quantifiable progress. Despite that awareness, the district did
not discuss the neurologist's recommendations at the IEP hearing. When
T.'s mother visited the early childhood classroom after she had started
ABA, she observed that the school's program was structurally similar to
the early intervention program T. had participated in and that it might
not be suitable for her child. She testified that some of the curriculum
encompassed areas T. had already mastered at home (e.g., colors and shapes)
ant others being taught were above her child's ability (e.g., reading and
writing his name). Much of the programming appeared to be similar in all
of the classrooms. She knew there were autistic children in some of the
classrooms, yet she saw no one-on-one attention being consistently provided.
She felt that the teachers would not be
able to redirect T.'s self-stimulatory behavior because their hands were full handling all the other children. She had concerns that T. could not comply with the transitions from the bus to the classroom without a one-on-one aide, and that his afternoon nap could not be accommodated in the school's program. She received no empirical data from the school to support the effectiveness of its program for autistic children, which confirmed her suspicion that T. might not be able to learn there. Since she had been told that this was the only placement option available for her child, she felt she could not risk waiting for the IEP before beginning ABA treatment. Though she started the ABA program in her home in March before the IEP was completed, she testified that she was in no way limited to that program alone. She came to the IEP meeting eager to hear what the school would propose, to give input relative to goals and objectives, and to be part of the team formulating an appropriate program for her son. The school district's position that the parents' starting their home program in March precluded them from taking advantage of an appropriate school program is without factual basis of support. The parents were not required to sacrifice T.'s progress and risk regression in order to wait for the school district's proposal.
II. THE PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT T.'S PARENTS ARE ENTITLED TO REIMBURSEMENT FOR PLACEMENT OF THEIR SON IN AN INTENSIVE ABA FULL-YEAR HOME-BASED PROGRAM AND THE COSTS ASSOCIATED WITH THAT PLACEMENT.
A. The legal decisions in Burlington School Committee v. Department of Education of the Commonwealth of Massachusetts' 105 S.Ct. 1996, 471 U.S. 359 (1985) and Florence County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L. Ed. 2d. 284 (1993) clearly establish the right to reimbursement where the public placement violates IDEA and the private educational program is in substantial compliance with the Act. even if the private special education is in a program that is not on a state-approved list.
(1) In Burlington, the parent of a handicapped child rejected the school's IEP calling for placement of the child in a public school and unilaterally enrolled the child in a state-approved private school at his own expense while he sought review of the disputed IEP. The Supreme Court held that IDEA's grant of equitable authority empowers a court
The court also stated that:
(2) In Florence County, the Supreme Court extended the right of reimbursement under IDEA, by holding that parents may obtain reasonable reimbursement for unilateral placement of their handicapped child in private school, even if that school is not on a state-approved list and does not meet all the requirements of IDEA.
The requirement that the school meet the standards of the state educational agency does not apply to private parental placements . . . It would be inconsistent to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same educational system that failed to meet the child's needs in the first place . . total reimbursement will not be appropriate if [it is determined] . . . that the cost of the private education was unreasonable. . . public educational authorities who want to avoid reembursing parents for the private education of a disabled child can do one of two things: give the child a FAPE in a public setting, or place the child in an appropriate private setting of the State's choice. Florence County at pp. 364-6. The hearing officer has found that the school district's placement was inappropriate and failed to provide a FAPE in accordance with IDEA. The remaining issue is whether the parents' ABA placement was appropriate.
B. The hearing officer finds that the parents' placement of T. in an ABA program using DTT was proper.
(1) The school district has presented the hearing officer with the case of Shoreline School District, 26 IDELR 923 (Wa. 1997) wherein a Washington hearing officer found the school district's 12.5 hour per week early childhood program to be adequate under IDEA to meet the requirements of a FAPE. The school curriculum offered in that hearing officer's opinion met the elements listed in an article describing eight examples of model early intervention programs active since the 1980s in the United States for children with autism. "Early Interventions in Autism," by Geraldine Dawson and Julie Osterling reviewed Dr. Ivar Lovaas's Young Autism Program at UCLA in 1987, 1989 and 1993. Several elements of early intervention that are essential to educating preschool autistic children and need to be incorporated into a proper curriculum were mentioned. A key recommendation for the teaching environment is noticeably absent from the school's proposed IEP for T. in the instant case and is clearly Present in T.'s current ABA program:
Skills taught first in highly-structured contexts in which the
child interacts directly with a trained therapist or teacher in an environment
that minimizes distractions and maximizes attention to specific stimuli
. . . All programs have a very low staff-to-child ratio . . .systematically
teach, practice, prompt and refine. [Problem behaviors are to be approached
by]. . . carry[ing] out a functional assessment of the problem behavior
and teach[ing] alternative appropriate behaviors that serve the same function
for the child. . . [Parents are to] . . . participate as co-therapists
[and therapy is to be] continued at home. Parent training [is also recommended].
Shoreline, 26 IDELR at 928.
All of these elements are present in T.'s home-based program. Most of them would not have been actively present in the school's proposed program. At least 20 hours per week of school-based intervention is also recommended in the article. The school in Shoreline was only offering a 12.5 hour per week program. Though the school's offering here of a double program encompassed 20 hours per week, the four day program was still inadequate in failing to meet any of the critical elements of an individualized education program recommended by scientific experts for autistic children and for all the previously-mentioned reasons finding the IEP procedurally and substantively inappropriate.
(2) T.'s home-based program is in substantial compliance with IDEA. All the independent evaluations sought by T.'s parents were in agreement with the neurologist's recommendations that T. required an intensive one-on-one ABA program using DTT to develop his ability to learn and to derive an educational benefit as an autistic child. The court in Malkentzos invoked the Second Circuit's "Treating Physician" "rule, which clearly applies in this instance:
Under this rule,. a treating physician's opinion "on the subject of a medical disability" is binding unless contradicted by substantial evidence in the record. . .Further, the treating physician's opinion is entitled to "some extra weight" in resolving any conflicts in the evidence. Malkentzos, at 515 ref. to Schisler v. Heckler, 787 F. 2d 76, 81 (2d Cir. 1986).
In T.'s case, testimony of early childhood staff who deemed his IEP to be appropriate is not persuasive since they had never met the child or evaluated him. Members of the early intervention staff testified that T. needed services, such as extended school year, that were not called for on the IEP. Almost all members of the staff were not trained or comfortable with any intensive teaching teaching techniques such as DTT or one-on-one instruction. In contrast, the ABA program was able to recognize and address the child's needs in a highly-structured scientifically proven program in which parent participation and training are an integral part and progress can be accurately measured.
(3) The school's argument that T.'s program was being conducted by uncertified teachers and college students and was therefore barred from reimbursement is foreclosed by the Supreme Court's holding in Florence County. In fact, the personnel in T.'s program were all trained in ABA workshops using DTT. They were mostly graduate students in related fields recruited and supervised by a Ph. D. in clinical psychology who trained with Dr. Ivar Lovaas at UCLA.
Every two weeks at minimum, the supervisor consulted for several hours
with the trained therapists and parents and made changes in the program
as the child's skills developed and adaptations were necessary. A hierarchy
of skills adapted to the child's needs was formulated using a rough template
emphasizing intensive one-to-one teaching. Behavior management is accomplished
concurrently with skill building. T.'s particular problems with compliance,
which would have prevented his learning in a classroom setting can be worked
on continuously with the goal of moving onto more advanced play and social
skills as the challenge of achieving compliance is worked through. The
supervisor has a continuing role in this process, facilitating the transition
from home-based to school program, cooperating in the formulation of an
effective format for learning at school and evaluating progress in reaching
goals. Her testimony indicated that she has a thorough knowledge of T.'s
needs, as do the therapists who participate in the 35-38 hours per week
program and who document his progress daily. The rate of acquisition of
skills in this program was clearly demonstrated to the hearing officer
and all the evaluations concurred with the charted educational progress
indicating the program's educational benefit.
(4) The school's argument that the parents are not equitably entitled to any reimbursement because they placed their child in private education before the IEP was formulated and did not cooperate with school authorities also fails under Burlington. In fact, the preponderance of the evidence indicates that parents' decision to start a private educational program came only after they had made repeated attempts to communicate and work within the system. Since the hearing officer is upholding the parents' placement as appropriate and deeming the school's IEP as inappropriate, the parents' legal right to reimbursement remains intact. The law does not require them to wait for the IEP to be formulated.
(5) In balancing the equities, it is appropriate to examine whether the parties attempted to achieve a negotiated compromise. Here that effort had begun long before the IEP was formulated. T. began receiving early intervention services after an examination requested by his mother when T. was 2 1/2 years old. He was evaluated in October, 1996 and an IFSP was formulated thereafter, incorporating speech and language, occupational therapy and a therapeutic playgroup. His mother had extensive contact with school personnel, attending most sessions of his school program and related services, and was an integral part of formulating appropriate goals and expectations for her son which she implemented and practiced at home. Parents' good faith was demonstrated throughout the process, playing an integral role at each stage and cooperating and following through with all suggestions of school personnel. When they had T. evaluated by a neurologist, they shared the results, written report and recommendations with the school. The mother attended playgroup with her son and spoke openly with his teachers and administrators about possibilities for his placement. At the suggestion of school authorities, she arranged for further evaluations at her own expense and explored all available programs for autistic children that were suggested to her. She informed the school that she was conducting an ABA workshop in her home and invited them to participate. Even after starting the home-based program, she remained open to the possibility of her child's attending school, visiting the early childhood classrooms before the IEP conference. She cooperated fully with the school's case study evaluation and came to the MDC fully prepared to hear the school's recommendations and participate in a cooperative process. T.'s father testified that all the scientific data about autism and expert evaluations reinforced the neurologist's opinions regarding the elements necessary for T. to learn and make progress in an educational program. He felt that asking them to try the district's program to see if it was beneficial was not reasonable when its components were contrary to all the recommendations for their child. In his opinion, the definition of "some educational benefit" is that a scientific probability exists that his autistic child will learn if an intense, structured, continuous program is provided at an early age. He said that despite his great respect for teachers, he was not willing to risk placing his child in the school district program proposed at the IEP when all the experts indicated it would not be beneficial. T.'s father described himself as a reasonable man, asking only that the school district reimburse them for providing an appropriate program, comparable in expense to what the district had offered. The parents' intentions to work within the school system and demonstrated efforts to do so do not indicate a lack of good faith or any equitable imbalance that would justify denying or limiting reimbursement.
1. No later than 30 days beyond the last day of the period within which either party may appeal this decision, the school district is ordered to meet T.'s unique educational needs as an autistic child by convening an MDC (with appropriate school staffing, parents and their representatives) to develop an IEP for his education which shall consider all independent evaluations obtained by the family and provide for:
A. The implementation of his current full-day ABA/DTT home-based individually structured program of 38 hours per week of one-on-one instruction for one year thereafter, unless the family agrees to a shorter period, using trained therapists and a bi-monthly supervisor.
B. An extended school year (which was not included in the April 21, 1997 IEP) of up to 52 weeks to prevent regression with reasonable allowance for school and parent vacations.
C. A behavior management plan (which was not included in the April 21, 1997 IEP with measurable standards for mastery of specified goals and objectives.
D. Private speech and language therapy as developed and implemented by the family as part of his ABA program at public expense.
E. Occupational therapy and social work at the option of the family as developed and implemented by the school district in the public school setting by means of dual enrollment at public expense.
F. Annual parent training and evaluation of T. and semi-annual professional consultation to develop and coordinate the home and school programs, both at the family's discretion and public expense.
2. No later than one year beyond the day the IEP ordered above is implemented, the school district shall conduct an annual review of the child's status, at which time the hearing officer intends the following items to be addressed based on T.'s needs:
A. The formulation of a transition plan to gradually reintegrate T. into the public school program while continuing the ABA home-based program on a proportional basis.
B. The presence of a full-time individual aide at public expense trained in ABA/DTT when T. is reintegrated into the public school program.
C. The presence of a facilitator from T.'s ABA home program and/or an expert consultant of parents' choice to work with the public school and child up to four times total per year at public expense to expedite reintegration and coordinate curriculum and goals..
D. The provision of all related services including speech and language, occupational therapy and social work by and in the public school setting when T. is reintegrated into the school's program.
3. The school district is ordered to reimburse the family for the following costs and expenses, subject to the restrictions which conclude this order in Section #3(E) below:
A. The cost(s) of educating T. in his current individually structured 38 hour ABA/DTT home-based program from April 21, 1997 (the date of the IEP proposed by the school district and rejected by the family) to the date this order is received.
B. The costs(s) of continuing the entire program as described in Order #3(A) above or a portion of it until T. is eligible for kindergarten.
C. The cost(s) of educating T. in Orders #3(A) and #3(B) shall include reasonable expenses for DTT-trained therapists, an ABA program supervisor for up to four (4) hours per month and a private speech and language therapist twice a week for up to 45 minutes per session. Reasonable reimbursement for a workshop held in the family's home March 8-9, 1997 to train ABA/DTT therapists and the cost of educational materials purchased through the time of receipt of this order shall also be provided by the school district..
D. The cost of the following evaluations of T.:
i. The audiologic and audiometric screenings and reports performed by Professional Hearing Services, Inc. of Hoffman Estates, IL on October 3, 1996 and February 27, 1997.
ii. The neurological evaluation, testing and reports provided by Joseph Pastemak, M.D. on January 2, March 11 and June 7, 1997.
iii. The psychological evaluation, testing and report of James Mulick, Ph.D. at the Ohio State University Medical Center on July 17, 1997.
iv. The observations and behavioral assessment of neuropsychologist Rudy Lorber, Ph.D. of Lake Shore Neuropsychological Services, Ltd. on June 26, August 21 and September 10, 1997.
v. The psychological evaluation, testing and report of Catherine Lord, Ph.D. and Bennett Leventhal, M.D. of the University of Chicago Developmental Disorders Clinic on October 1,8 and 10, 1997.
E. The family is only eligible for non-reimbursed actual costs associated with their provision of evaluations, instruction, related services and supervision. To receive reimbursement for costs and expenses that have been found to be the responsibility of the public school, the family shall verify payment by submitting their paid invoices, cancelled checks and proof of insurance reimbursement they have received in relation to these costs and expenses, and the public school will be responsible for the difference. The same procedure shall be followed for future costs and expenses, unless the parties agree to another method.
4. The school district shall submit proof of compliance with this order to the Regulatory and Operations Section of the Illinois State Board of Education, 100 North First Street, Springfield, Illinois 62777, within thirty (30) days from the receipt of this decision.