Special Education Appeals BSEA #00-3759
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Wachusett Regional School District BSEA # 00-3759
This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B, and the regulations promulgated under said statutes.
A Hearing was held on April 27 and 28, and July 11, 12 and 19, 2000 in Worcester, MA before William Crane, Hearing Officer.
Those present for all or part of the proceedings were:
Jeffrey Newcombe Attorney for Parents
Gayle Greene Educational Advocate
Christine Coz Advocate/Education Specialist
Kathy Van Schoick Service Coordinator, University of Massachusetts Early Intervention and Family Support Program
Valerie Chase Speech/Language Pathologist, Personal Communications Pediatric Services (PCPS)
Lori Piniarski Director of Behavior Services, PCPS
Nicola Favorito Attorney for Wachusett Regional School District (WRSD)
Philip Campbell Director of Student/Informational Services, WRSD
Kimberly Ferguson former Supervisor, WRSD’s Early Childhood Center (ECC)
Randall Wong Special Education Administrative Specialist, ECC
Valerie Zuidema Speech/Language Pathologist, WRSD
Steven Bicchieri Special Education Administration Specialist, WRSD
Carol Parker Teacher, WRSD
Kathy Regele Occupational Therapist, ECC
Rosemarie Kaplow Office Manager, PCPS
The official record of the hearing consists of documents submitted by the Student’s parents (hereafter, Parents) marked as exhibits P-1 through P-161, and P-194 through P-344 (marked by page number rather than by document), documents submitted by the Wachusett Regional School District (hereafter, WRSD) marked as exhibits S-1 through S-33, and S-43 and S-44, and approximately 24 hours of recorded oral testimony and argument. The parties submitted written closing arguments, received on August 10, 2000, and the record closed on that date.
A. ISSUES PRESENTED
1. Is the IEP for the period 6/7/00 to 6/7/01 (exhibits S-12, P-194 through P-219) proposed for Student by Wachusett Regional School District (WRSD) reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal?
2. If not, can the IEP be modified so that this standard is met? Can the services (pursuant to the modified IEP) be provided at WRSD’s Early Childhood Center (hereafter, ECC)?
3. If not, should Student continue to attend the Chatterbox Preschool program at the Personal Communications Pediatric Services (hereafter, PCPS)?
B. Profile and History
1. History of the Student.
S tudent is a three-year-old (date of birth 3/19/97) resident of Holden, which is within the WRSD. He has been diagnosed with pervasive developmental disorder (PDD) and with an autistic disorder. Student is currently attending the Chatterbox Preschool in Sterling, MA, where he had been placed through Early Intervention services. The Chatterbox Preschool program is part of Personal Communications Pediatric Services (PCPS). Parents’ Request for Hearing asks that services be continued through PCPS. Exhibits S-12, P-17, P-36, P-37, P-41, P-48, P-194 through P-219.
Up until two years and three months of age, Student’s development had been typical. Parents described him as bright, using full sentences, playing appropriately and being highly social and interactive. Testimony of Student’s mother (hereafter, Mother) and Student’s father (hereafter, Father).
At two years, three months, Student stopped playing with his toys and decreased his use of language. He began to repeat words out of context. At this time, Student still had some strengths in his speech, play and social skills. However, Student continued to lose skills and was increasingly “unavailable” for social interactions. He would often stare into space and be difficult to engage. In August 1999, Student was referred to the University of Massachusetts Early Intervention Program because of Parents’ concerns regarding these changes in Student’s overall development and loss of skills and abilities. Testimony of Mother, Father; exhibits P-9, P-10, P-26.
In August 1999, Student was determined eligible for Early Intervention services. An Individualized Family Service Plan was developed, with services beginning on August 24, 1999. Exhibits P-17 through P-13. In September 1999, Student began receiving Applied Behavioral Analysis (ABA) therapy, coordinated through the May Center, for fifteen hours per week and floor time therapy through Building Blocks Intensive Early Intervention Program for six hours per week. The focus of these interventions was on developing and increasing communication skills, eye-contact, attending skills, play skills and gross- and fine-motor skills. Student also saw an occupational therapist once a week for sensory integration therapy and a speech therapist twice per week. He also saw his service coordinator once a week. Exhibits P-17, P-22, P-29.
Notwithstanding these interventions, Student continued to show some regression in his developmental skills, with loss of language and interaction skills. For example, it became increasingly difficult to obtain his attention by calling his name, and he was observed to have significant difficulty feeding himself. Student’s oral motor skills were also affected by this regression. Testimony of Mother; exhibits P-17, P-29, P-42.
In early January 2000, Student switched service providers from the University of Massachusetts Early Intervention Program to the Personal Communications Pediatric Services (PCPS) and began attending the PCPS Chatter Box Preschool where he has continued to receive services through the present. (Parents privately engaged these services since Student’s third birthday when his eligibility ended for Early Intervention services.) Within the Chatter Box program, he began receiving fifteen hours per week of ABA therapy, with a gradual increase over time to twenty-six hours per week, including ABA therapy at home during certain hours and ABA therapy on Saturdays. He also received individualized speech therapy and individualized occupational therapy, and he participated in a preschool group with other children with special needs. Exhibits P-17, P-28. Student has made significant improvement since switching to the Chatter Box Preschool program. Testimony of Mother, Father, Piniarski; exhibit P-17.
2. Diagnostic IEP and Interim Agreement.
The Team met on February 18, 2000 and recommended a diagnostic evaluation. The evaluation proposed services, beginning on 3/20/00 (the day following Student’s third birthday), of an ABA tutor for 309 minutes, five times per week, to be provided at preschool; speech/language therapy for 30 minutes, twice per week, to be provided at preschool; speech/language services for 30 minutes, three times per week, to be provided as a pull-out service; and occupational therapy for 30 minutes, once per week, to be provided as a pull-out service. Services would be provided through WRSD’s Early Childhood Center (ECC) in Holden. The TEAM would reconvene on 5/19/00. Exhibits S-1, P-1, P-2, P-3.
The Parents rejected this IEP and filed with the Bureau of Special Education Appeals a Request for Hearing on March 16, 2000. The first day of the Hearing was held on April 27, 2000. On April 28, 2000 after a partial day of Hearing, the parties negotiated an interim agreement. The interim agreement resolved all outstanding issues between the parties through the date of the agreement, April 28, 2000. Exhibit S-15.
The interim agreement provided for WRSD to pay for a continuation of services that Student had been receiving on March 19, 2000, and to pay for these services through the summer of 2000 or until the parties agreed to an IEP or until the Bureau of Special Education Appeals issued a decision regarding this matter, whichever occurred first. Exhibit S-15.
The interim agreement set forth the parties’ understanding, at that time, of the services being provided as of March 19, 2000 (Student’s 3 rd birthday and the beginning of his eligibility for special education services) through PCPS:
·26 hours of discrete trial one-on-one ABA therapy per week;
·8 hours of small group preschool per week;
·2 hours each of individual occupational therapy and individual speech/language therapy. Exhibit S-15.
These same services were then written into a diagnostic IEP dated 5/10/00, and this IEP was accepted by Parents. Exhibits P-220 through P-223.
3. June 7, 2000 IEP.
At a Team meeting on June 7, 2000, an IEP was developed for the period 6/7/00 to 6/7/01. On June 30, 2000, Parents accepted certain parts of the IEP and rejected other parts. Exhibits S-12, P-194 through P-219. This IEP is the subject of the current dispute. The services proposed within the IEP are described below, followed by changes requested by the Parents (which are in italics ).
The IEP proposes services of:
· discrete trial therapy for three hours per day, five days per week;
Parents propose: add language to make clear that this is one-on-one discrete trial therapy, and add home ABA therapy for 180 minutes, four times per week, including 2½ to 3 hours on Saturday;
·ABA therapy involving lunch, toileting, and transitions for forty-five minutes each day, five days per week;
·occupational therapy for forty-five minutes, twice per week (including co-treating time);
Parents propose: therapy should be for sixty minutes, three times per week;
·speech/language therapy for thirty minutes, three times per week (including co-treating time);
Parents propose: therapy should be for sixty minutes, three times per week;
·integrated preschool program for one hour and 24 minutes, each day (five days per week), with “duration as appropriate;”
Parents propose: eliminate the language of “duration as appropriate,” add “incorporating frequent use of Sensory Integration techniques;”
·consultation by the ABA lead therapist with staff/parents for up to three hours per week;
Parents propose: add language providing that the three hours of consultation include a one hour meeting with occupational therapist, speech/language therapist, ABA therapists and parent;
·consultation by the ABA consultant with staff/parents for up to three hours per month; consultation by the ABA program assistant with the parents for 15 minutes per week;
·consultation by occupational therapist with the parents for 15 minutes per week;
·consultation by the speech/language therapist with the parents for 15 minutes per week.
Parents propose adding to the above services: home ABA services for three hours, four times per week “but varied,” including 2 ½ to 3 hours on Saturdays. The parents also propose that the IEP be for a 6-day cycle, reflecting the Saturday services.
The IEP provides that the integrated preschool program will have no more than 15 children and no more than 8 children who have an IEP.
Parents propose: the preschool class should have no more than 6 students with at least two preschool teachers who have at least the educational credentials, ABA and Sensory Integration training, and experience of his current teachers.
The IEP explains that children are supervised at all times by ECC staff, and that in addition to Student being accompanied by an ABA program assistant at all times, there are two sets of closed doors that he would need to open before he would reach the outside to the building.
Parents propose alternative language: Student should be at all times in a secure physical setting in which it would not be possible for him to simply open a door or doors and leave, and in which entry from the outside is possible only be key, combination, etc., or by admission by a person within the building.
The IEP explains that Student will be assigned an ABA program assistant for his full day of school, with the ABA program assistant conducing discrete trials and accompanying Student during his preschool inclusion class.
Parents propose alternative language: Student should be assigned one or more ABA therapists who have at least the educational credentials, ABA and Sensory Integration training, and experience of his current ABA providers, to conduct one-on-one discrete trials at home and at school. In order to provide continuity, the same ABA therapists will provide home and school components.
The IEP provides that the occupational therapist and speech therapist will co-treat during two sessions of therapy for optimal facilitation of speech.
Parents propose: occupational therapist and speech/language therapist should co-treat Student during two one-hour individual sessions per week, in addition to one-hour individual session per week of occupational therapy and speech/language therapy. [Through testimony at the Hearing on this matter, Parents made clear that they are instead requesting that all three hours be co-taught.]
The IEP provides for the above-mentioned services to start at a time to be coordinated with a transition schedule. The IEP provides for transition services to include the ECC staff being introduced to Student at PCPS and becoming part of his services for three days at PCPS. Then PCPS staff would accompany Student to the ECC for five days with ECC staff conducting increasing amounts of service, leading to full service by day five.
Parents propose: any transition to ECC should provide for Student’s ECC staff (including at least the ABA therapist) spending five days at PCPS and every ECC staff person who will work with Student initially at ECC spending at least one full school day at PCPS for observation, participation and training. For the next three weeks, Student’s shift to ECC would be gradual, spending two days at ECC and three days at PCPS during the first week, spending three days at ECC and two days at PCPS during the second week, and spending five days at ECC during the third week. And, during the third week, at least one PCPS staff person would accompany Student all day, each day although this could be decreased by PCPS staff if they believe that Student can manage without regression. All transition expenses, including per diem, would be paid by WRSD.
The IEP indicated that the Team recognizes the need for summer services, the extent of which will be determined by the Team in the spring of 2001. The IEP is for the period 6/7/00 to 6/7/01.
Parents propose: period of IEP should be from 9/6/00 to 9/5/01 (and therefore include the summer of 2001), and should eliminate language in IEP that the extent of the summer services will be determined in spring of 2001.
Parents also propose various changes to the goals and objectives described in the IEP.
STATEMENT OF THE EVIDENCE
Mother testified that her son regressed dramatically at two years, three months. Early Intervention then evaluated him, and he was diagnosed with PDD in August 1999. She explained that in September 1999, the May Center began providing services to her son through Early Intervention but Student did not appear to be making progress. She further explained that after researching her options, she and her husband decided to switch service providers, and Student began transitioning to PCPS in early January 2000; and two weeks later, Student was receiving services only at PCPS. She explained that at PCPS, his ABA therapy increased over time to 26 hours per week. However, she noted that when Student turned three years old and his Early Intervention preschool group ended, Student began attending a longer preschool group and because of the longer group, his ABA services were reduced to 21½ hours per week.
Mother testified that Student has made significant progress since December 1999 when he was in a kind of trance, was aloof, and was not interested in toys. Mother reported that Student’s speech had declined to only one-word utterances, but that he will now spontaneously produce sentences, and that he also repeats a great deal of what he hears, a skill that he had lost. Mother also noted that he is now more engaged and will follow some directions.
Mother testified that transitions are very difficult for her son – even changing a toothbrush can be a challenge. Mother further noted that if her son misses services even for a day or two, she notices regression — not as much eye contact, more withdrawn, and language regression. She further explained that to address the issue of regression, Saturday ABA services were added in February or March 2000.
Mother testified that she and her husband asked Katherine Martien, MD, to do a follow-up evaluation of their son, resulting in the letter of May 30, 2000 from Dr. Martien. Exhibits P-224 and P-225. Mother explained that as part of this evaluation, Dr. Martien observed Student at her office for about 2½ or 3 hours, reviewed his progress reports, his other reports and evaluations, and his diagnostic IEP. Mother explained that Dr. Martien was familiar with the services that Student had been receiving at the time of the evaluation.
Mother testified that at the June 7, 2000 Team meeting, no one suggested a preschool group larger than 6 students, and no one suggested less speech or occupational services than he was currently receiving at that time. Mother also testified that she visited WRSD’s proposed new building for ECC, and noted her concern about her son’s safety in this new building since he sometimes runs off (and has no fear) — there need to be sufficient safeguards to prevent his leaving the building by himself.
Mother testified that the description of services by Ms. Piniarski (on July 11, 2000) was not entirely accurate – one hour more of ABA services (than was reported by Ms. Piniarski) is being provided. She also explained that in her rejection of the most recent IEP, she and her husband intended to request that all of the speech and occupational therapy (three hours of each) be co-taught by these therapists.
Father testified that for the first several years of Student’s life, he was a bright, typically developing child when at two years, three months, Student regressed almost to an infant – rolling on the floor, babbling, fixated on a particular object.
Father testified that at the June 7, 2000 Team meeting, no one recommended a class size of 15 students and everyone seemed to agree that the smaller the preschool group, the better; no one suggested lowering the current services of speech and occupational therapy; and no one suggested that the home component of ABA services be eliminated.
Father testified that on May 18, 2000, he observed Student in a preschool group for one hour, and he noticed that with only five children in the group involved in free play, his son became distracted, going into his own world. He also noted that during that time, his son’s attention had to be brought back through sensory stimulation eleven times, and he was told by staff that this was a typical day for his son.
Lori Piniarski testified that she has a BA in psychology and is two courses short of a masters degree in child and family counseling.
Ms. Piniarski testified that she has been providing ABA services for approximately six years originally at the May Center, then at Horace Mann and most recently with PCPS. She is currently the Director of Behavioral Services and the lead behavioral technician for PCPS, and in this role, she trains and supervises the ABA therapists at PCPS. See her resume, exhibits P-259, P-260.
Ms. Piniarski testified that the qualifications of employees at PCPS, as described in exhibits P-249 through P-255, appear to be correct. Ms. Piniarski also explained that the ABA therapists at PCPS have a variety of backgrounds – some have prior training or experience, some have a BA in psychology and others have a business degree; and they have all been trained by PCPS.
Ms. Piniarski testified that she first met Student in February 2000, and since then, she has provided him with ABA discrete trial therapy at home and at Chatter Box. She explained that in February 2000, he was almost totally unresponsive, he made little, if any, eye contact, and he made inappropriate verbalizations. Since February 2000, he has made excellent progress – for example, he is able to answer simple questions, he sometimes can speak in whole sentences, he responds 80 to 90% of the time to receptive commands, and he gives greetings 80 to 90% of the time.
Ms. Piniarski testified that a home component of ABA therapy is critical to Student’s development. She explained that the home component allows instruction to be given to Mother (within the context of the ABA therapist providing services to Student) so that Mother knows how to respond to Student in day-to-day activities in order to reinforce the ABA training, and this ensures consistency between the home and the Chatter Box at PCPS.
Ms. Piniarski testified that it is necessary to include sensory integration (SI) into the ABA services and into the preschool group. She explained that Student often becomes distracted and “shuts off,” going into his own world; and when this occurs, he needs stimulation (for example, spinning or bouncing) to bring him back, and he can then continue with the ABA therapy or preschool group activity.
Ms. Piniarski testified that, in general, Student regresses more than most comparable children, and, in particular, without Saturday ABA services, he regresses. She also explained that Student is easily distracted and has difficulty with transitions from place to place and from one person to another, although she noted that it is useful for Student to work with different therapists (who have different personalities) so that he learns to work with a variety of people. She opined that a change in environment could also cause regression.
Ms. Piniarski testified that the preschool group that Student attends helps him generalize what he has learned in individual therapy. Ms. Piniarski testified that without a preschool group, a child learns only to respond in one setting – that is, the group is a kind of forced socialization in a structured way so that the child learns to be flexible and to respond appropriately in a group setting.
Ms. Piniarski testified that she reviewed proposed IEP goals (in the June 2000 IEP) relative to ABA therapy, and believes that they mirror those that are in place for Student at PCPS; but that he has already satisfied some of the goals and that Student will further develop beyond those goals during the period of the IEP.
Ms. Piniarski testified on July 11, 2000 that beginning in May 2000 and continuing until the schedule changed a few days prior to her testimony, Student was receiving 21 hours of ABA therapy per week; two hours of individual speech/language therapy per week which was co-taught simultaneously with two hours of individual occupational therapy; 1½ hours of additional, individual occupational therapy per week; and two hours of preschool group each day for four days per week.
Ms. Piniarski testified that the group, during the above time period, has been led by two teachers and has never exceeded 6 students, all of whom have special needs. She noted, however, that Student was recently switched into a group of 7 students, some of whom are typical students; and she noted that for 1½ hours per week of the group, there is now an ABA therapist to work with Student to generalize his skills.
Ms. Piniarski testified that on the basis of her experience and knowledge generally, as well as working specifically with Student and reviewing Student’s evaluations, she recommends that ABA therapy be increased gradually (depending on how much he can handle) to at least 30 hours per week, that the ABA services continue at home as well as at school, that SI continue to be included throughout Student’s services, and that speech be provided on a daily basis, eventually for an hour at a time.
Ms. Piniarski testified that she also recommended that all speech be co-taught with occupational therapy. She explained that PCPS began providing occupational therapy during all speech therapy sessions because without the OT, the speech therapy was not effective as the therapist was not getting meaningful speech.
Ms. Piniarski testified that at the June 7, 2000 Team meeting, she and Ms. Chase explained that in a class of 15 children, Student would not maintain his attention, even with a 1:1 aide. She further testified that the larger the group, the more difficulty Student will have with attention; and when he loses attention (and is in his own world), he is not learning. She explained that a 1:1 aide with Student would help, but that ultimately a group of more than 7 children would be problematic for Student. She noted that the most important factors in influencing Student’s attention in the group are the size of the group and the skill of the teachers in their ability to engage Student and bring him back. She noted that other factors include the length of the group, the composition of the group, and anything else in the room (including decorations) that might distract Student. She explained that she has consulted with Student’s preschool teacher regarding these issues.
Ms. Piniarski testified that at the June 7, 2000 Team meeting, everyone agreed to the need for a home component and no one said that Student should receive less speech therapy or occupational therapy than he is currently receiving.
Valerie Chase testified that she has a masters degree in special education, has a degree in speech pathology and is certified as a speech/language pathologist. She further testified that she has been a speech/language pathologist for 27 years, and during that time has been a teacher for language-impaired students and has consulted in the speech/language area. She explained that currently she teaches in a graduate program at Fitchburg College and is the Director of PCPS; and in that capacity at PCPS, she writes curricula for children and addresses treatment strategies.
Ms. Chase testified that she first met Student in December 1999 when she performed a speech/language assessment of him.1 She found that Student had no meaningful communication or eye contact, was completely in his own world and was easily distracted. She further explained that the graphs of Student’s progress (exhibits P-89A through P-89J) show significant success in many areas of skill acquisition – for example, greetings, eye contact and expressive labeling. She noted that, in general, Student has become more aware of people and his environment, and more responsive and happier. She noted that these improved behaviors have carried over into the home. Ms. Chase concluded that with the current services, Student is doing very well, and these services should be maintained.
Ms. Chase testified that Student has significant cognitive potential but is not using it to learn because of sensory/neurological limitations. She further testified that he sometimes does not respond because of his sensory needs, and she noted that the ABA discrete trials should be integrated with sensory integration (SI) techniques in order to engage Student.
Ms. Chase testified that continuity is vital to Student’s making progress – even over a weekend, Student regresses in terms of his behavior and responses – and this is the reason that ABA therapy was started on Saturdays. In her opinion, it is also extremely important that the ABA services be included in the home so that Student will be able to generalize from one setting to another during the time he is learning. She also noted that it is critical to have consistency between and among the therapists, teachers and Parents in order for the therapy to be effective.
Ms Chase explained (when she testified on April 27, 2000) that Student had been receiving speech/language therapy for one hour, two times per week, but with the additional time from speech/language assistants, this has been increased to forty-five minutes, three times per week. Ms. Chase further testified that speech and communication are key deficits for Student, and therefore speech therapy is particularly important for Student at this time (he has clear speech articulation but his speech is inappropriate and not communicative). She recommended that Student receive one hour each day of speech therapy – but, she also noted that Student becomes tired from the services he is receiving, leaving him with too little energy for this much speech therapy at this time.
Ms. Chase further explained that when she testified (on April 27, 2000), Student was receiving 21½ hours of ABA services, split between the center and home. She explained that she does not recommend an increase in his ABA discrete trial therapy at this time because he is exhausted at the end of the day.
Ms. Chase testified that within PCPS, there are no set requirements for becoming an ABA technician. She noted that each technician at PCPS receives in-service training, including hands-on training and observation of other clinicians. She further explained that at PCPS, there are certified speech/language pathologists, speech/language assistants and a certified occupational therapist.
Ms. Chase testified that with a change in providers, there is a risk that Student will regress.
Kathleen Van Schoick, MEd, testified that she has a masters degree in special education and child development, and she has been an educator involved with Early Intervention for 25 years, working with many autistic children during that time (approximately 40 to 50 such children). She explained that currently she works for University of Massachusetts Early Intervention and Family Support Program as a service coordinator, and in that capacity, seeks to ensure that Student receives the services that he needs and that these services are well coordinated.
Ms. Schoick testified that through Early Intervention, Student first received services from the May Center but he did not make positive gains. However, she explained that after transferring to PCPS, Student made significant progress, for example, with increased eye contact, social awareness and interactions with others. Ms. Schoick attributed the better progress at PCPS to the increased services and more comprehensive program.
Ms. Schoick testified that Student is easily distracted and therefore needs to be in a small group of 5 to 7 children when he is in his preschool classroom; Student needs year-round services; the ABA services should be one-to-one; sensory integration should be included within the ABA therapy; and 20 hours of ABA services are needed now, although more may be needed at a later time. She also noted that he needs speech/language therapy two to three times per week, and occupational therapy with sensory integration twice per week.
Ms. Schoick testified that she is familiar with ECC (and has observed the classroom program), and she has had Early Intervention children (for whom she has coordinated services) transfer to ECC. She explained that the transitions have gone smoothly, and she generally has a positive impression of ECC.
Ms. Schoick testified that she observed Student three times after he started services at PCPS, and was not aware of regression occurring as a result of the change in service providers.
Ms. Schoick wrote a Transition Report containing the following recommendation:
[Student] will transition from early intervention into a preschool program
at his third birthday party. He needs an integrated preschool program designed for his abilities and challenges. He will need a small group learning experience as well as speech therapy, occupational therapy, ABA therapy at school and at home. [Student]’s school program needs to be year round, daily to increase to full day.
Exhibits P-26 and P-27.
Gayle Greene testified that she became the Parents’ educational advocate on or about June 1, 2000 and in that capacity, she attended the June 7, 2000 Team meeting. She further testified that during the meeting, Student’s current preschool group teacher at PCPS recommended a class size of no more than six students, explaining that as the class size becomes larger, Student has a more difficult time focusing (keeping his attention). Ms. Greene noted that, at the Team meeting, Mr. Wong explained that there were 15 children in a class at ECC and that he could not tailor a smaller class size. Ms. Greene further testified that there was a discussion of the home component of ABA services, and no one suggested ending it.
Kimberly Ferguson testified that she has a masters degree in speech/language pathology and has been a licensed speech/language pathologist since 1990. She explained that she has worked for different public school systems since 1988 and most recently for WRSD when she was supervisor of ECC from April 1998 to December 1999. She explained that Student was referred to her by Ms. Schoick (Student’s service coordinator) in October 1999, and on November 19, 1999, Ms. Ferguson arranged with Mother to visit the ECC program.
Ms. Ferguson testified that WRSD used the May Center to help design the ECC, and the May Center continues to provide assistance through a lead therapist who performs on-site supervision, training of new ABA clinicians, on-going in-service training, consultation and occasionally an evaluation of the program. She explained that the services at ECC include ABA discrete trials, speech/language therapy, occupational therapy, physical therapy, and adaptive physical education. She also noted that speech and occupational therapy work together, and co-treatment can occur as necessary. She further explained that each student has his/her own ABA clinician, students can go for a full day/full week, and a six-day program (including Saturdays) is available.
Kathy Regele testified that she is a licensed occupational therapist and has worked as an occupational therapist since 1995. She explained that in 1997, she began working at ECC on a full-time basis, evaluating children, consulting with parents and staff and providing occupational therapy. She also noted that she has 4 to 5 years of experience working with autistic children; she has taken an ABA training course through the May Center for two hours each day for six weeks; she has attended a three-day training course (as well as other courses) on sensory integration (SI) as it relates to autism; and she employs SI consistently with all of the children to whom she provides OT. She also explained that she is familiar with OT as co-treatment with speech therapy, and has done this both at ECC and in her previous employment.
Ms. Regele testified that she observed Student at PCPS on May 23, 2000 and at home on June 5, 2000 for 1½ hours while receiving ABA therapy; and she has reviewed his OT records and evaluations. She testified that she found him to be an affectionate, lovable boy. She also noted that Student is easily distracted, and the ABA therapist (whom she observed) often needed to prompt him and use sensory integration.
Ms. Regele testified that if Student were to begin with ECC, he would receive a full evaluation for his occupational therapy needs in order to establish a base line and to develop a treatment plan for OT – she noted that Student has not had a full OT evaluation, only an evaluation of the SI area of OT. She explained that she believes in co-treatment (of OT with speech therapy) and that it would be important that there be co-treatment for Student. She explained that the June 2000 IEP calls for two sessions of OT for 45 minutes each, with the first half hour of OT alone and the last 15 minutes with co-treatment with speech therapy; and speech therapy would then be given alone for 30 minutes. She noted that these services would be provided as a starting point to help determine a more long-term program of OT therapy for Student.
Ms. Regele testified that there is an OT group at ECC for a half hour each week, and Student might be able to join this group (it is not currently in his IEP). She also explained that at ECC, sensory integration would be incorporated into OT and all other aspects of his day, including ABA therapy and group – she noted that Student tends to shut down and requires a significant amount of stimulation. She explained that she would be consulting with the other service providers within ECC regarding incorporation of SI into all aspects of the day. She also testified that there would be no reason not to continue with the amount of occupational therapy Student is currently receiving until a full evaluation is done and the development of an OT treatment plan.
Ms. Regele testified that the IEP calls for a more lengthy transition plan (for purposes of changing providers) than would normally occur for children coming to ECC from another service provider.
Philip Campbell testified that since January 1999, he has been the WRSD Director of Student/Information Services and is also currently the Interim Special Education Administrator. He explained that he has a BA degree, as well as 25 years of human services experience, including being the principal of a special education school and serving as the Commissioner of the Massachusetts Department of Mental Retardation.
Mr. Campbell testified that within WRSD, he has a consulting/advising role to ECC. He explained that ECC fills the gap between services needed when a child turns three years old and when the child is old enough to attend kindergarten. He explained that ECC recruits typical children to be part of the inclusion preschool group at ECC. He explained that state regulations limit these preschool groups to no more than 15 children.
Mr. Campbell testified that ECC has certified teachers, as well as speech therapists, physical therapists and an occupational therapist on staff. He explained that ECC has a relationship with the May Center which results in the May Center providing a variety of services to support ABA therapy at ECC, including staff development, a lead ABA therapist and consultation. He also noted that WRSD recently advertised for a full-time lead therapist to provide services similar to what the May Center has provided. He explained that ECC uses the term ABA program assistant, and this term is identical to the term ABA therapist.
Mr. Campbell testified that ECC has the capacity to provide Student with a continuation of the services he has been receiving at PCPS, including speech therapy, occupational therapy, center-based and home-based ABA therapy, and a preschool group of no more than seven children attending the group at any one time (although he noted that it may be difficult logistically to keep the group to no more than seven children). He also noted that ECC has a summer program that could be available to Student.
Mr. Campbell testified that he did not participate in the development of Student’s June 2000 IEP and was not otherwise involved in the determination of what services WRSD would offer Student.
Randall Wong testified that since December 1999, he has been the special education administrative specialist for the WRSD Early Childhood Center (ECC) – he took over this position from Kim Ferguson. Mr. Wong testified that he has a masters degree in education from Harvard University. He explained that he has spent his whole career in early childhood education although his only special education experience is participating in Team meetings regarding special needs children.
Mr. Wong testified that ECC currently has three children receiving ABA services through ABA program assistants. He noted that each ABA program assistant does discrete trail work with the child and also accompanies the child throughout the day. He noted that the experience and training of the ABA program assistants varies, and that an ABA program assistant would be hired (or Mr. Wong could utilize one of his current ABA program assistants) for Student were he to attend ECC. Mr. Wong noted that each of the ABA program assistants receives 18 contact hours of training from the May Center, as well as on-gong consultation from the May Center ABA lead therapist.
Mr. Wong testified that ECC has four classrooms, each with a teacher and instructional aide, for preschool groups, and at least half of each group is typical students, with the other children having IEPs. He noted that currently (when he testified on July 11, 2000) there are no more than 7 children enrolled in any of the groups and that this number will likely increase but to no more than 15 children in a group. He explained that these classrooms, as well as the other parts of the ECC program, are moving into a different space in a wing of the Jefferson School, beginning September 6, 2000. He further explained that the security within the buildings will include an alarm or other system to announce the unauthorized exit or entry of anyone, and he also noted that Student would have a staff person accompanying him at all times.
Mr. Wong testified that he first became familiar with Student when he reviewed Student’s file in January 2000 for the purpose of developing an education plan for him. Mr. Wong explained that he has attended diagnostic Team meetings and an IEP Team meeting for Student (most recently, the IEP Team meeting on June 7, 2000).
Mr. Wong testified that he received (at his request) the draft goals from Ms. Piniarski (exhibit S-11) and that these goals have been incorporated into the June 2000 IEP.
Mr. Wong testified that at the June 2000 IEP Team meeting, staff from PCPS attended and made presentations; Parents had questions (listed in exhibit P-227), many of which Mr. Wong was not able to answer at that time. (Mr. Wong indicated that he informed Parents at the meeting that their questions would be addressed through the IEP.) Mr. Wong explained that subsequent to the Team meeting, he coordinated with the ECC service providers, obtaining their input regarding the areas of the IEP in which they have knowledge – Ms. Regele regarding occupational therapy, Carol Parker regarding the preschool group, Valerie Zuidema regarding speech therapy and Steve Bicchieri generally – and on the basis of this input and advise, Mr. Wong prepared the IEP.
Regarding the preschool group that is proposed for Student in the June 7, 2000 IEP, Mr. Wong testified that a maximum of 15 children was included in the IEP because no more than this number of children may attend, pursuant to state regulations. He explained that Student would have an aide in the class to offset any difficulties with the size of the group – for example, the aide would cue Student when necessary. He also noted that the phrase “duration as appropriate” was included in the IEP (page 17) to indicate that the amount of time that the Student would spend in the preschool group each day could be adjusted depending on what is found to be appropriate for Student after he begins the ECC program.
Regarding the transition into ECC that is proposed for Student in the June 2000 IEP, Mr. Wong testified that he recognized that a transition period would be needed for Student to help him adjust to the new service provider. He noted that, typically, a transition for a special needs child into ECC is only a few days and that a more lengthy period had been planned for Student since he recognized that Student has difficulty with transitions.
Regarding the ABA services that are proposed for Student in the June 2000 IEP, Mr. Wong testified that the three hours per day 1:1 ABA services are for discrete trial therapy, and the 45 minutes per day 1:1 ABA services (for lunch, toileting and transitions) are considered ABA therapy but not discrete trial work. Mr. Wong noted also that during preschool group, Student’s ABA program assistant would be with him, reinforcing the discrete trial work. He further explained that the elimination of home-based ABA services in the IEP was a mistake and that these services should be included. He also noted that there was no conscious decision not to have ABA services on Saturday, and that Saturday services could be provided to Student if he needs them. He also explained that the reduction in ABA services from what Student is currently receiving was based on input from ECC staff.
Regarding the summer services that are proposed for Student, Mr. Wong testified that the June 2000 IEP does not describe summer services since Student will begin with ECC after the summer of 2000, and the IEP ends before the summer of 2001. However, he noted that, as explained in the IEP (page 5), WRSD recognizes the need for summer services for Student and will determine at a later time what those services should be. Similarly, he testified that ECC has the capacity to provide Student with individual services during the school holiday periods, and WRSD will consider the need to do this.
Regarding the speech therapy and occupational therapy services that are proposed for Student in the June 2000 IEP, Mr. Wong testified that the IEP should have been written to provide for two periods of speech and two periods of occupational therapy, each for forty-five minutes (rather than speech for three periods of thirty minutes, which is what the IEP reflects). He explained that Student would start with thirty minutes of OT alone, then fifteen minutes of speech and OT co-taught, then thirty minutes of speech alone. He noted that at ECC, there are two speech/language pathologists, two speech assistants and one occupational therapist. He explained that the speech and OT services being proposed by WRSD in the June 2000 IEP were based on input from ECC staff.
Mr. Wong testified that the June 2000 IEP was intended to be flexible so it can change to meet Student’s needs, noting that the IEP (page 5) calls for Team meetings in November, January, March and May. He also explained that WRSD will be doing the full OT evaluation recommended by Ms. Regele.
Steven Bicchieri testified that since July 1, 1999, he has been the Special Education Administration Specialist at WRSD. He explained that his responsibilities include being the special education liaison to various special education programs within WRSD, including ECC, and providing support to Team leaders and special education staff. He noted that in December 1999, he was assigned to help ECC transition from the previous director (Kim Ferguson) to the present director (Randall Wong). He also explained that he is certified as a teacher for kindergarten through 8 th grade, he is certified as a teacher of children with moderate special needs, he has ten years experience as a special education teacher, he was an assistant principal for two years, and he worked for four years at the Franklin Perkins School, first as the Assistant Director of Education for two years and then as the Director of Education for two years.
Mr. Bicchieri testified that he is familiar with Student through attending Team meetings first in the winter of 1999/2000, then two diagnostic Team meetings and finally the most recent Team meeting on June 7, 2000, and he has participated in several in-house meetings regarding Student. He explained that he is not otherwise knowledgeable regarding Student or his special education needs.
Mr. Bicchieri testified that he is familiar with the staff at ECC. He explained that the position of ABA program assistant at ECC does not require a particular level of experience or education (other than a high school diploma) but that each ABA program assistant hired by ECC receives 18 hours of training from the May Center and receives supervision from the ABA lead therapist who is a May Center employee. He noted that no certification exists for this profession.
Mr. Bicchieri testified that the WRSD position of ABA Facilitator (see job description at exhibit S-16) will provide on-site supervision, support and intervention for the ABA program assistants, as well as additional training as needed. He noted that this person (soon to be hired) will have had extensive ABA experience and will work with the 12 schools within WRSD, as well as ECC. He further explained that this person will supplement the support and assistance form the May Center’s ABA lead therapist who will continue to be available on an as needed basis, per the recommendation of a child’s Team.
Mr. Bicchieri testified that the role of the instructional aides at ECC (see job description at exhibit # S-17) is to support students, as directed by the teacher. He also explained that the teachers at ECC (see job description at exhibit S-18) must be certified to teach children with special needs at the moderate or severe level.
Mr. Bicchieri testified that at the June 7, 2000 Team meeting, no one suggested that Student be placed in a group larger than Student’s current group, no one suggested eliminating the home component of services, no one suggested reducing the current level of services, and no one suggested eliminating Saturday services for Student.
Rosemarie Kaplow testified that since March 2000, she has been the Office Manager at PCPS. She explained that her responsibilities are to oversee the general administrative operations of PCPS, including billing, payroll and human resources. She further explained that there is another PCPS staff person who does the actual billing, and Ms. Kaplow works with her to make sure that the bills are done correctly. Ms. Kaplow noted that she does not provide therapeutic services, does not know Student and would have no way of knowing whether services (described in the billing sheets) were in fact delivered to Student.
Ms. Kaplow testified that each staff person at PCPS has a weekly schedule of responsibilities and the staff person checks off each entry (on his/her schedule) to indicate that he/she provided the particular service (e.g., OT, speech therapy or ABA services). She explained that exhibits S-20 and S-22 through S-32 are these schedules for the month of May 2000. She further testified that exhibit S-19 is a spreadsheet that was prepared by the PCPS billing staff person to reflect the information in the weekly schedules in anticipation of this Hearing in order to check the accuracy of the May invoice. She explained that exhibit S-43 is the invoice for Student’s services for May 2000 and is more recent and therefore more complete than the invoice found at the 3 rd and 4 th pages of exhibit S-13. She also noted that exhibits S-33 and S-44 are the invoices for Student’s services for June 2000, with S-33 being the more recent and therefore more complete invoice.
Ms. Kaplow testified regarding the schedules and how they compared to the spreadsheet and invoice for May 2000. After discrepancies between documents were pointed out to her on cross-examination, she agreed that for May 2, 2000, the amount of time indicated on the spreadsheet and invoice was too low (1/2 hour); for May 1, 2000, the spreadsheet and invoice did not include an hour of speech therapy; for May 8, 2000, the starting time for the service was incorrect although the total time of the service appeared to be correct. She also noted, on cross-examination, that she had no weekly schedule for the first week of May for two therapists, although time had been included for each of them in the spreadsheet — she explained she did not know whether this indicated missing schedules or an incorrect spreadsheet. She also testified that comparing two invoices for June 2000 (exhibits # S-33 and S-44), there are differences in the way that services are described (for example, in one invoice several services are listed as OT and in the other invoice these same services are listed as speech therapy, and other services are listed as ABA therapy in one invoice while the other invoice lists the same services as speech), and she did not know which invoice was correct. She acknowledged that if there were more time to review the accuracy of these records, it seemed likely that more errors would be found.
Ms. Kaplow testified that she is the only person who reviews the invoices for accuracy, and she only does spot checks. She also explained that if a service were provided but not included in the billing schedule, she would have no knowledge of the service.
Speech and Language Progress Report was written by Carrie Anthrop, M.S., CCC-SLP, a Speech Language Pathologist at UMass Early Intervention and Family Support Program when Student was two and a half years old. Her report concluded that a “structured, consistent program that utilizes a total communication approach and is familiar with sensory integration would best suit [Student’s] needs and allow him to increase his communication skills.” Exhibits P-29, P-30.
Occupational Therapy Report by Patti Gould, OTR/L, Occupational Therapist, UMass Early Intervention and Family Support Program, on January 5, 2000 concluded:
In summary, [Student] demonstrates sensory modulation deficits which are associated with difficulty relating to his environment, poor sleep patterns, and motor planning issues. I recommended continued exploration of a sensory diet which helps [Student]’s sensory system function at its most optimal level.
Exhibits P-31, P-32.
Psychology Consultation by Karen Levine, Ph.D., Psychologist, Building Blocks Intensive Early Intervention, on 12/20/99 makes the following recommendations:
1. Continue intensive services. [Student] should have daily, full day, year
round services tailored to the special learning needs of children with PDD/autism spectrum disorders.
2. As [Student] approaches three years of age it will be important to facilitate a
transition process, that will incorporate a daily, full day, year round program tailored to his learning needs. This will likely incorporate a combination of 1:1 intensive teaching and some small group experiences with children who are more social and verbal than he. This may involve a couple of hours a day for example in an integrated preschool with a 1:1 aid, and the rest of the time in a 1:1 program either at home or at school. The 1:1 programs should be in a standard format for children with “PDD” involving direct care staff who are supervised by highly experienced specialist on an intensive and regular basis. The model of the May Center or Beacon Services would be appropriate for him.
3. It will be important for an outside team to evaluate [Student] on a periodic
basis after he turns three. I would be happy to see him through our clinic at Spaulding Rehabilitation Hospital if the team at U. Mass. stops at age three.
Exhibits P-33, P-34, P-35.
Dr. Levine, in her capacity as Clinical Director, Autism Services, North Shore ARC, followed up her report with a letter “To Whom It May Concern” dated March 27, 2000, in which she states:
At that time [12/20/99] I recommended that when he turns 3 he have daily, full day, year round programming tailored to the special learning needs of children with autism, with primarily an intensive 1:1 teaching approach, incorporating some small group time with a 1:1 facilitator.
Since January he has been receiving essentially this sort of service model through the Chatterbox program, including about 26 hours of services, with about half of these delivered at home in a 1:1 discrete trial “ABA” format, and about half in school in a similar format with some small group experiences. Parents report that he has responded very well to this model, with increased eye contact, responsiveness to language, social interest in adults and children, and imitation. I am very familiar with the work of Valerie Chase, having shared a patient with her who also had autism. I was able to view her work with this child on videotape in great detail. This combination of expertise in speech and language and in very high structured teaching is highly appropriate for [Student] at this time. I strongly recommend that he continue with this sort of program, with an increase to essentially full day, full year. The staff will need to be expert in and receive ongoing training and support in current techniques of working with young children with autism. He will need primarily highly structured 1:1 teaching, combining high animation and “fun” with primarily a discrete trial ABA format in order to advance maximally.
As he already has a team of staff familiar with him and who are working effectively with him he would likely regress by moving to another program even with a similar model.
May Center for Child and Family Services report of 1/11/00 (by James T. Ellis, Ph.D.,
Program Director, and Donna M. Harvey, Senior Therapist) concludes:
It should be noted that [Student’s] progress on all targeted objectives has occurred only as a result of intensive training using discrete trials training procedures. Teaching of specific skills has involved repeatedly presenting training trials and systematically employing prompting, shaping, and reinforcement procedures. Based on our involvement with [Student] and the progress that he has made, we would make a number of recommendations with regard to important components of an educational program:
1. Year round, with consistent groupings of children, staff, schedule, and curriculum, to prevent loss of skills.
2. Six hours of structured programming for five days a week.
3. Placement in a classroom environment with typically developing peers for two to three hours a day.
4. One-on-one therapist for all instruction time.
5. Use of discrete-trial training procedures that involve systematic use of prompting, shaping, and reinforcement procedures.
6. Employment of incidental teaching by arranging or seizing upon naturally occurring situations in which to facilitate development of social interactions and communication.
7. Clearly defined training objectives that can be continuously assessed so that treatment procedures can be modified as necessary.
8. Staff with training and expertise in working with children with Pervasive Developmental Disorders and in the principles of Applied Behavior Analysis.
9. Continued emphasis placed on improving communication/language skill, social/attending skills, and play skills.
Exhibits P-22 through P-25.
Yvette Yatchmink, M.D., Ph.D., Assistant Professor of Pediatrics Director, Infant-Toddler Clinic of University of Massachusetts Memorial Medical Center Children’s Medical Center, saw Student on 1/25/00 for a follow-up evaluation in the Infant-Toddler Clinic to obtain a re-evaluation of [Student] and to assist with his transition from Early Intervention to a preschool program. Her written report concluded:
We believe that [Student] has great potential if he continues to receive intensive educational services, ideally within his current setting. Children with autistic disorders generally have a great deal of difficulty transitioning into new settings and [Student] is just becoming comfortable with his current preschool program. We believe it is essential that [Student’s] educational plan have the following components:
1. [Student] must attend school in a small classroom with no more than 8
children and a high teacher to student ratio to insure safety and cooperation with learning tasks.
2. [Student] should continue to receive individualized Applied Behavioral Analysis therapy. Because of his young age this should start out at 15-20 hours per week, but over the next year this should be gradually increased to 30-40 hours per week.
3. [Student] should receive individualized speech therapy on a daily basis,
emphasizing a total communication approach.
4. [Student] should receive individualized occupational therapy, emphasizing
5. [Student] should attend school 12 months each year in order to prevent
regression of skills in the summer months.
Exhibits P-17, P-18, P-19.
Dr. Yatchmink wrote a follow-up letter “To Whom It May concern” dated 3/22/00:
I am writing this letter on behalf of [Student], a now 3 year old boy with an Autistic Spectrum Disorder who I have been following in the Infant-Toddler Clinic here at UMass Memorial Health Care Center. [Student] has been making excellent progress in his social and communication skills in an Early Intervention Program that includes 26 hours of individualized Applied Behavior Analysis Therapy per week. It is essential that [Student] continue to receive intensive individualized ABA services (26 hrs per week now, increasing to 30-40 hours per week over the next year) in order to continue his progress and prevent regression of skills. Ideally there should be a home component to his program to allow continuity between the school and home settings. In addition, he needs to receive daily speech therapy, and occupational therapy emphasizing sensory integration.
There are now several empirical studies supporting the use of intensive Applied Behavioral Analysis with discrete trail training in young children with Autistic Spectrum Disorder. I believe it is essential for [Student] to receive such therapy at this early age in order to optimize his potential for the future.
Richard Manjerovic, M.D., of Child Health Associates, P.C., wrote a letter “To whom it may concern” dated April 22, 2000 in which he states:
I am writing this letter on behalf of [Student], who has been a patient of mine since his birth on March 19, 1997. [Student] had normal development up until age 2 years and 3 months, at which time he had a massive regression.
Since [Student] has enrolled in the Herbert Lipton Early Intervention Program at Chatterbox Preschool I have witnessed an increase in his eye contact, spontaneous language and awareness of his surroundings. His current program includes:
• 40 hours of one-on-one discrete trials in Applied Behavior Analysis
format, school and in home program, year round
• Small classroom, void of visual distractions and with 7 or less students
• Individualized Speech Therapy daily
• Individualized Occupational Therapy emphasizing Sensory Integration
• Social communication group
I continue to observe [Student] making progress through his current program. Scientific research supports the type of early behavioral intervention that [Student] is receiving. I believe that [Student] has great potential and he should remain in the program he is currently enrolled.
Katherine M. Martien, M.D., F.A.A.P., Massachusetts General Hospital LADDERS Program wrote a letter “To whom it may concern” dated April 11, 2000, in which she states:
We have evaluated 3 year old [Student] in the Massachusetts General Hospital LADDERS Neurodevelopmental Program with regard to his behavior and developmental profile.
We have recommended that [Student] continue to receive one-on-one behavioral therapy utilizing the techniques of Applied Behavioral Analysis (ABA) and discrete trials training in order to secure his engagability and attention for the acquisition of language, cognitive, academic and adaptive skills. Research studies, such as that published by Lovaas at al. at the University of California, have demonstrated that ABA behavioral therapy provided one-on-one for a minimum of 26 hours per week is effective in the majority of autistic children in significantly improving their behavior, availability for learning, and skill sets. The absence of this intervention for [Student] is likely to permanently compromise his developmental trajectory. Adjunctive occupational and speech therapies, which address [Student]’s fine motor/adaptive/sensory integration delays and speech language delays, are also critical components in his programming.
Dr. Martien wrote a second letter “To whom it may concern” dated May 30, 2000, in which she states that the letter serves as her recommendations for Student’s program content which should include the following:
·a full year, full day program;
·one-on-one behavior therapy utilizing ABA techniques and discrete trials;
·a minimum of 26 hours of one-on-one ABA;
·ABA therapy to be offered at both school and home;
·consistency of ABA providers at home and school;
·sensory integration incorporated into Student’s entire program;
·individualized speech therapy (3 sessions per week minimum);
·individualized occupational therapy (3 sessions per week minimum);
·co-treatment of speech and occupational therapy;
·a highly structured small social communication class;
·maximum class size of 6 children;
·total communication using the Mayer Johnson system incorporated in Student’s entire program;
·classroom to be void of distractions;
·facility to be a safe, secured building;
·highly trained, experienced staff with expertise in working with Autistic children.
Exhibits P-224, P-225. Dr. Martien is a neurodevelopmental pediatrician. Her resume indicates that she has published and lectured in the areas of autism as well as regression. Exhibit P-340.
C. FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1400 et seq . and M.G.L. c. 71B. Since age two years and three months, Student has had (and he continues to have) a pervasive and severe disability, diagnosed either as PDD or autism or both. His disability falls within the category of “developmental delay.” It is not disputed that Student has been (and continues to be) eligible for special education services since his third birthday. Accordingly, he is entitled to a free, appropriate public education and an IEP which are reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).
This case presents a wide-ranging dispute between Parents and WRSD regarding what services should be provided to Student as he transitions from Early Intervention to special education. Nearly every service proposed for Student is contested.
Yet, in the final analysis, the parties are not so far apart in principle. The Parents and school district agree that Student needs ABA discrete trial therapy, speech/language therapy, occupational therapy, co-teaching of speech and OT, and a preschool group. The principal matters in dispute boil down to (i) how much of these therapeutic services are to be provided, (ii) how large a preschool group is appropriate and (iii) where should the services be provided – that is, either a continuation of services at PCPS or a change in service provider to WRSD’s preschool program (ECC).2
The issues presented by this case are described above in part A. However, it may be useful at this point to present briefly the many subissues that are framed through the Parents’ allegations regarding procedural errors and their detailed rejection of the IEP. Exhibits P-216 through P-219; see also discussion in part B3 above. These subissues may be outlined as follows:
·were there procedural errors in the development of the June 2000 IEP and if so, what relief should be provided?
·what number of hours per week should be provided?
·should this therapy be both home- and center-based?
·should this therapy also be provided on Saturdays?
·how many sessions of speech (and how many hours per week) should be provided?
·how much of speech therapy should be co-taught with occupational therapy?
·how many sessions of OT (and how many hours per week) should be provided?
·how much of OT should be co-taught with speech therapy?
·how large should the class size be?
·should the length of the class time be open-ended?
Other aspects of the educational services
·should the services be full-year, with no gaps in services?
·should sensory integration (SI) techniques be incorporated into the entire program?
Goals and objectives
·does the IEP include adequate goals and objectives?
Capacity of proposed program (ECC)
·is the proposed preschool group classroom sufficiently secure in order to preclude Student from leaving on his own?
·does WRSD’s proposed program (ECC) include staff with adequate credentials and experience to implement the services within the IEP?
·does ECC otherwise have the capacity to provide the services within the IEP?
·if ECC is not appropriate, should Student continue at PCPS?
·is the risk of regression sufficiently great so as to preclude transfer to WRSD’s proposed placement (ECC)?
·assuming that Student should be transferred to ECC, does the IEP include an adequate plan for transitioning Student?
·when should the proposed transfer to ECC occur?3
3. Procedural errors.
Parents raise, through a number of witnesses, alleged procedural errors in WRSD’s development of the June 7, 2000 IEP. The thrust of Parents’ argument is that at the June 7, 2000 Team meeting (the only Team meeting to discuss the 2000-2001 IEP), there was consensus regarding a number of Student’s services, but this consensus was not reflected within the written IEP proposed by WRSD.
For the reasons described below, I do not believe that the evidence supports the contention that a consensus was explicitly reached as to what services should be provided to Student, and it is therefore not appropriate for me simply to re-write the IEP based on what was recommended at the Team meeting. Nevertheless, I find that there were significant procedural errors in the development of the IEP.
The June 7, 2000 Team meeting was not the forum at which decisions were made regarding the content of the IEP. Parents’ and WRSD’s witnesses consistently testified that at the Team meeting, no one recommended a decreased level of services from what Student was currently receiving. For example, no one suggested reducing existing service levels of speech/language therapy or occupational therapy, removing Saturday ABA services or discontinuing home-based services. Yet, the IEP was drafted to reflect these changes in services. Testimony of Mother, Piniarski, Green, Bicchieri; exhibits S-12, P-194 through P-219.
The WRSD Team chairperson (Wong) explained that at the June 7, 2000 Team meeting, he obtained information and recommendations from those attending. At a later time, he obtained from ECC staff additional (and apparently contradictory) recommendations regarding Student’s services. The Team was not given an opportunity to consider this additional information. In sum, Mr. Wong testified that he made service delivery decisions and developed the IEP on the basis of the information and recommendations that he had obtained within and then outside of the Team meeting.
Federal regulations provide that an IEP is a “written statement . . . that is developed . . . in a meeting in accordance with ss. 300.341-300.350.” 34 CFR 300.340(a). Sections 300.341-300.350 include requirements of participation by parents in the Team meeting at which the IEP is developed. 34 CFR 300.345. The statute (IDEA) further states that parents must be “members of any group that makes decisions on the educational placement of their child.” 20 USC 1414(f). See also 34 CFR 300.552(a)(1) (the placement decision is made by a group of persons that includes the parents). In other words, the regulations and statute require that the IEP be developed by the Team (including the parents) during a Team meeting, rather than development of the IEP by one or more Team members outside of the Team meeting.
The federal DOE interpretation of its regulations in Appendix A provides further clarification of these principles:
The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents . . . join with the other participants in deciding . . . what services the agency will provide to the child and in what setting . 48 Fed. Reg. 12473 (first column) (March 12, 1999) (emphasis supplied).
Recent federal guidelines regarding the development of the IEP further elucidate the role of the Team (including parents as Team members) regarding the development of the child’s IEP:
To help decide what special education and related services the student needs, generally the IEP team will begin by looking at the child’s evaluation results . . . and observations by teachers, parents, paraprofessionals, related service providers, administrators, and others. . . .
It is important that the discussion of what the child needs be framed around how to help the child . . . .
Based on the above discussion, the IEP team will then write the child’s IEP . This includes the services and supports the school will provide for the child . If the IEP team decides that a child needs a particular device or service (including an intervention, accommodation, or other program modification), the IEP team must write with information in the IEP. . . .
The placement decision is made by a group of people, including the parents and others who know about the child, what the evaluation results mean, and what types of placements are appropriate.
“ A Guide to the Individualized Education Program,” Office of Special Education and Rehabilitative Services, U.S. Department of Education, pages 10-12 (July 2000) (emphasis supplied).
It is apparent that the development of Student’s June 2000 IEP violated these federal mandates. WRSD wrote Student’s IEP with input from the Team members (including Parents) but failed to allow the Team as a whole to develop or write the IEP as contemplated by federal law, regulations and guidelines.4
This raises the question of what should follow from these procedural violations. The First Circuit Court of Appeals has cautioned that although “Courts must strictly scrutinize IEPs to ensure their procedural integrity, . . . procedural flaws do not automatically render an IEP legally defective.” But, the Court then went on to explain that there is justification to set aside an IEP if the school district “seriously hampered the parents’ opportunity to participate in the formulation process. [Citations omitted.]” Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990). For the reasons explained above, I find that the IEP was developed in a manner that “seriously hampered” Parents’ opportunity for participation in the development of the IEP, as that participation is contemplated by the IDEA and its implementing regulations.
These procedural violations by WRSD relate to specific service levels proposed in the IEP, and Parents are entitled to have these parts of the IEP set aside and the Team reconvened. However, as discussed below, WRSD offered little or no expert evidence in support of the proposed service levels in the IEP (either during the IEP meeting or at the Hearing), while Parents presented multiple expert witnesses and reports, and my Decision will therefore rely principally on Parents’ evidence in this regard. It therefore seems prudent (and in the interests of Parents) for this Decision to address these issues on the merits, rather than by sending these issues back to the Team for resolution and thereby further delaying a determination of service levels for Student.
For these reasons, I decline to invalidate the IEP on procedural grounds, and will instead address the issues on the merits below. I nevertheless emphasize the seriousness of WRSD’s procedural violations, noting that at least one federal Circuit Court has concluded that such violations are tantamount to a denial of FAPE. W.G. v. Board of Trustees of Target Range School District , 960 F.2d 1479 (9 th Cir. 1992) (school district failed to provide student with FAPE by failing to comply with the specified procedures for preparing the IEP).
4. ABA therapy.
Hours per week of ABA therapy.
Testimony of witnesses, as well as the written interim agreement between the parties, indicates that as of Student’s third birthday (March 19, 2000) when he became eligible for special education services from WRSD, he had been receiving 26 hours of one-on-one ABA therapy per week. This number of hours was then reduced because Student switched into a different preschool group which left less time for ABA therapy. Testimony of Mother; exhibit S-15. When Ms. Chase testified on April 27, 2000, Student was receiving 21½ hours of ABA services per week (testimony of Chase), and from May 2000 until early July 2000, Student was receiving approximately 21 or 22 hours of ABA therapy per week (testimony of Piniarski, Mother).5
It is not disputed that Student has been making significant educational and developmental progress since participating in the PCPS program. Testimony of Piniarski, Chase, Mother, Father; exhibits P-89A through P-89J. Although it is not possible to tie this progress to one particular therapeutic service (of the many that Student is receiving), it seems clear that Student’s progress is attributable, in part, to the ABA therapy. Testimony of Piniarski; exhibits P-22 through P-25.
The June 2000 IEP proposes services of:
·ABA discrete trial therapy for three hours per day, five days per week;
·ABA therapy involving lunch, toileting, and transitions for forty-five minutes each day, five days per week.
The three hours per day of 1:1 ABA services are discrete trial therapy, and the 45 minutes per day 1:1 ABA services are considered ABA therapy but not discrete trial work. In other words, WRSD, through the June 2000 IEP is proposing 18 ¾ hours per week of one-on-one ABA therapy, and 15 hours of this therapy is considered discrete trial work. Testimony of Wong.
The only evidence in support of the level of ABA services proposed in the IEP was the testimony of the WRSD Team chairperson (Wong). When asked the reasons for proposing a reduction in ABA therapy hours from what has actually been provided to Student, Mr. Wong testified only that the proposed reduction was based on input from ECC staff, which occurred outside of the June 2000 Team meeting. WRSD did not establish that any of the ECC staff who were consulted have an expertise regarding ABA therapy. In other words, instead of seeking to support what is in the IEP through expert opinion that this amount of ABA therapy would meet Student’s needs, the evidence presented by WRSD simply explained the process by which Mr. Wong, as the drafter of the IEP, came to this conclusion. It is apparent that this evidence is entitled to little, if any, weight in my determination of what level of services will provide for the maximum educational development of Student. I now turn to the evidence presented through Parents’ experts.
For this Student, as well as typically other, similar children, ABA therapy is provided initially at a reduced level and then gradually increased, depending on the ability (and energy) of the child to make use of the amount of therapy. Student initially received 15 hours per week of ABA therapy with the May Center and also when he began with PCPS. This amount of therapy was gradually increased to 26 hours per week (although it has decreased recently for the reasons described above). The near unanimous and unrebutted testimony of witnesses, together with the reports of experts who have evaluated Student, is that he should continue to receive at least 26 hours of ABA therapy per week and that when Student is able to benefit from additional therapy, it should increase to at least 30 hours per week. For example, Yvette Yatchmink, M.D., Ph.D., Assistant Professor of Pediatrics and Director, Infant-Toddler Clinic at University of Massachusetts Memorial Medical Center, Children’s Medical Center, wrote in a letter dated March 22, 2000: “It is essential that [Student] continue to receive intensive individualized ABA services (26 hrs per week now, increasing to 30-40 hours per week over the next year) in order to continue his progress and prevent regression of skills.” Exhibit P-16. Given Ms. Piniarski’s expertise regarding ABA therapy and her knowledge of Student, I also give significant weight to her testimony and recommendations that Student’s ABA therapy should be increased to at least 30 hours per week. See also exhibits P-17, P-18, P-19, P-224, P-225.
I note, however, that the expert evidence on this issue was not always clear as to whether the number of hours referred only to ABA discrete trial work or included the broader concept of ABA therapy. It appears from the testimony that although Student has been receiving a significant amount of discrete trial work, some of the current work of the ABA therapists would fall into the more general category of ABA therapy. WRSD, through its IEP, has proposed a mix of discrete trial work and ABA therapy, but no evidence explicitly made a recommendation regarding this issue.
I conclude that Student’s ABA therapy should be increased back to at least 26 hours per week (from present levels of 21 or 22 hours per week) and should be further increased to a minimum of 30 hours per week so long as Student is able to benefit from this additional therapy. I further conclude that the amount of ABA therapy should always be one-to-one, should be primarily discrete trial work, but may also include some ABA therapy which is not strictly ABA discrete trial work (for example, ABA therapy during lunch, toileting and transitions, as set forth at page 17 of the June 7, 2000 IEP).
Home-based ABA therapy.
Student has been receiving his ABA therapy split between the center (at PCPS) and home. The testimony was unrebutted that home-based services are necessary to ensure that Parents understand how to work with Student in a way that is consistent with the center-based therapy. Consistency between the two environments is critical to Student’s progress. Testimony of Piniarski, Chase; exhibits P-16, P-224, P-225. The WRSD Team chairperson (Wong) testified that the proposed elimination of home-based ABA services from the IEP was a mistake and that these services should be provided to Student.
For these reasons, I find that the ABA therapy should be split between home-based services and center-based services, with consistency of ABA services at home and the center.
Saturday ABA therapy.
Student’s schedule for ABA therapy has included ABA services on Saturdays (typically 2½ or 3 hours), although the actual delivery of Saturday services has been somewhat uneven. Testimony of Piniarski, Mother. There was no discussion within the June 7, 2000 Team meeting regarding a recommended elimination of these current services, and Mr. Wong testified that there was no conscious decision by WRSD to do so. Mr. Wong also testified that Saturday services could be provided to Student if he needs them. There was unrebutted testimony that Student regresses over the weekend without Saturday ABA services. Testimony of Piniarski, Chase, Mother.
Accordingly, I find that Student’s ABA therapy should continue to include Saturday ABA services.
2. Speech/language therapy.
Hours of speech/language therapy.
Student has been receiving two hours per week of speech/language therapy since March 2000 or earlier. Testimony of Piniarski, Mother; exhibits S-15, P-222. The June 2000 IEP proposes that this be reduced to thirty minutes, three times per week, although the WRSD Team chairperson testified that the IEP should instead provide for forty-five minutes, twice per week. Testimony of Wong; exhibits S-12, P-210.
The only evidence in support of the speech therapy services proposed in the IEP was the testimony of the WRSD Team chairperson (Wong). When asked the reasons for proposing a reduction in hours from what has been provided to Student, Mr. Wong testified only that the proposed reduction was based on input from ECC staff, which occurred outside of the June 2000 Team meeting. Mr. Wong noted that an ECC speech/language pathologist was consulted by him regarding speech therapy, but WRSD did not put into evidence her recommendations or what the recommendations were based on.6 In other words, instead of seeking to support what is in the IEP through expert opinion that this amount of speech therapy would meet Student’s individual needs, the evidence simply explained that Mr. Wong, as the drafter of the IEP, came to this conclusion after input from an experienced speech/language pathologist on his staff. This evidence is entitled to little, if any, weight in my determination of what level of services would provide for the maximum educational development of Student.
Parents’ expert testimony clearly established the importance of speech therapy for Student, but this testimony was inconsistent as to how much speech therapy was needed. For example, Ms. Chase, an experienced speech/language pathologist who evaluated Student, testified that speech and communication are key deficits for Student, and that this is a critical time for him to develop his speech skills. She recommended that Student receive one hour each day of speech therapy, but she also noted that Student becomes tired from the services he is receiving, leaving him with too little energy for this much speech therapy at this time. Ms. Piniarski testified that she also recommended speech therapy daily, and that the time of each session eventually reach an hour.
However, a more recent evaluation by another of Parents’ experts (Dr. Martien) led to her recommendation in a May 30 2000 letter that Student receive individual speech therapy for a minimum of three sessions per week. Exhibits P-224, P-225. It is also important to note that Parents, in their rejection of the IEP, seek speech therapy for sixty minutes, three times per week. Exhibits P-218.
On the basis of this evidence, I find that Student should receive hour-long speech/language therapy sessions, a minimum of three times per week, provided that the length or number of sessions may be reduced to the extent that Student has insufficient energy to benefit from the therapy.
Co-treatment with occupational therapy (OT).
Mr. Wong testified that the proposed June 2000 IEP is intended to provide for two periods of speech and two periods of occupational therapy, each for forty-five minutes. He explained that Student would start with thirty minutes of OT alone, then fifteen minutes of speech and OT co-taught, then thirty minutes of speech alone. He explained that the co-treatment of speech and OT services, as proposed by WRSD in the June 2000 IEP, is based on input from ECC staff. But, Mr. Wong gave no more substantive rationale, nor did WRSD submit any expert testimony or report in support of its proposal for co-treatment.
PCPS staff originally provided Student with some individual speech therapy that was co-taught with OT, as well as some individual speech therapy alone. However, after it became apparent to PCPS staff that co-teaching with OT was necessary in order for speech therapy to be able to obtain meaningful speech, all of the speech therapy was co-taught with OT; and in her testimony, Ms. Piniarski further recommended that all speech be co-taught with OT. Testimony of Piniarski. I find this testimony persuasive.
Accordingly, I conclude that all speech therapy should be co-taught with occupational therapy.
5. Occupational therapy (OT).
Ms. Regele (the WRSD certified occupational therapist employed at ECC) testified that the June 2000 IEP calls for two sessions of OT for 45 minutes each, with the first half hour OT alone and the last 15 minutes of co-treatment. Rather than offering a rationale as to why this amount of OT would meet Student’s needs, she explained that these services would be provided as a starting point to determine what more long-term OT services should be provided. However, Ms. Regele further testified that there would be no reason not to continue with the amount of occupational therapy Student is currently receiving until a full evaluation is done and the development of an OT treatment plan. (Mr. Wong testified that WRSD will be doing a full OT evaluation, as recommended by Ms. Regele.)
Student is currently receiving (and has been receiving since May 2000 or earlier) two hours per week of OT co-taught with speech therapy and 1½ hours per week of OT alone – that is, 3½ hours of OT per week. Parents’ expert, Dr. Martien, in a letter dated May 30, 2000, recommended a minimum of three individualized occupational therapy sessions per week. I also note that in their rejection of the IEP, Parents are requesting three hours of OT, all of which would be co-taught with speech therapy. Testimony of Mother, Father; exhibit P-218.
I have already concluded that Student should receive OT during the speech therapy for one hour, three times per week. Based on the above evidence, I find no support for any additional OT services. Accordingly, Student should receive OT at the times he receives speech therapy, as explained above in part C4 of this Decision.
6. Preschool group.
Size of the group.
The June 2000 IEP proposes that Student attend an integrated preschool program for one hour and 24 minutes, each day (five days per week) with “duration as appropriate.” The IEP further provides that the preschool group will have no more than 15 children and no more than 8 of these children will have an IEP. Exhibits S-12, P-210. Parents do not object to this preschool program per se, nor do they object to the length of time of the group. Rather, they are concerned with the size of the group (they propose that the preschool class should have no more than 6 students with at least two preschool teachers), and Parents request elimination of the language “duration as appropriate” from the IEP. Testimony of Mother, Father; exhibits P-216 through P-219.
The preschool group is an important opportunity for Student to learn to generalize into a group setting what he has learned in individual therapy. Testimony of Piniarski. WRSD witnesses testified that a maximum of 15 children was included in the IEP because this is the most children allowed under state regulations for such a group. Testimony of Wong, Campbell. When asked at the Hearing how this number could be understood as meeting Student’s individual needs in light of the oral testimony and written evidence indicating that Student needs a much smaller size preschool group, Mr. Wong responded that Student would always have a 1:1 aide in the class to offset any difficulties with the size of the group – for example, the aide would help cue Student. Neither Mr. Wong (nor any other WRSD witness) gave any further explanation, except to say that he had consulted with ECC staff (including the former ECC preschool teacher) before coming to his conclusions as to what should be included in the IEP regarding the size of the preschool group.
The unrebutted testimony and written reports of Parents’ experts are that Student needs a preschool group that is small in size – the recommendations of these experts range from 5 to 8 children. Testimony of Piniarski, Schoick; exhibits P-14E, P-17, P-18, P-19, P-224, P-225. Until recently, Student has participated in a group of 6 children, all of whom have IEPs. He is now in a group of 7 children, some of whom are typical students. Testimony of Piniarski. The proposed preschool group would include typical students. Testimony of Wong.
The concern regarding the size of the preschool group for Student relates to the fact that he is easily distracted. The larger the group, the more distracting it is for Student. And, when he loses attention and goes into his own world, Student is not learning. Testimony of Piniarski.
Ms. Piniarski further testified that a one-to-one aide will help Student regarding his distraction but she concluded that even with an aide, a group of more than 7 children will likely be problematic for Student.
Between Mr. Wong’s testimony and Ms. Piniarski’s testimony, the latter is more persuasive. Mr. Wong testified that he does not have special education expertise, other than through his participation in Team meetings, and he has no experience working with Student. Similarly, WRSD has not established that the ECC staff with whom Mr. Wong consulted have expertise in this area, and none of them has worked with Student. In contrast, Ms. Piniarski has significant expertise as well as specific knowledge of Student. She also has consulted with Student’s teacher at PCPS. I also note that none of the other evidence recommending a small group for Student suggested that this number could be increased with additional staffing. Testimony of Schoick; exhibits P-14E, P-17, P-18, P-19, P-224, P-225.
For these reasons, I find that the maximum number of children attending Student’s preschool group at any given time should not exceed 7 children (including Student).
Length of class time.
The proposed IEP calls for Student to attend preschool group for one hour and 24 minutes, four times per week. In the comment section of the IEP service delivery grid (page 17) is the phrase “duration as appropriate.” Exhibit S-12, P-210. Mr. Wong testified that the phrase “duration as appropriate” was included in the IEP to indicate that the amount of time that the Student would spend in the group each day could be adjusted depending on what is found to be appropriate for Student after he begins the ECC program. WRSD provided no other evidence in support of this phrase.
An IEP needs to include a complete description of the special education and related services to be provided to a child. 34 CFR 300.347(a)(3). Revision of the IEP may occur but only pursuant to procedures set forth in the federal regulations. 34 CFR 300.346. The phrase “duration as appropriate” would appear to allow the length of time Student spends in the preschool group to be changed when school officials determine a different length of time is more appropriate, rather than through an amendment to the IEP. It is apparent that if the length of services in an IEP can be so easily changed, the IEP provides little more than a starting point as to what services are to be provided to Student – a result that would be contrary to the letter and spirit of the above-cited federal regulations. For these reasons, I conclude that the phrase “duration as appropriate” should be removed from the IEP.
7. Other aspects of the educational services.
The proposed IEP (page 18) does not include a number of days of services, instead stating that the number of days of services per year is to be addressed at Team meetings. The IEP (page 5) recognizes the need for summer services, and explains that the extent of these services will be determined by the Team in the spring of 2001. Exhibit S-12, P-211. In his testimony, Mr. Wong confirmed the commitment of WRSD to summer services for Student but explained that the reason this IEP does not provide specifics regarding a summer program is that the IEP only goes to 7/7/01, and Student will begin receiving services under the IEP sometime after the end of the summer of 2000. WRSD provided no explanation for not including within the IEP the number of days of service.
The unrebutted testimony of Parents and their experts (Piniarski, Chase, Schoick) is that Student regresses without continuity of services. See also exhibits P-17, P-18, P-19, P-22 through P-25, P-33, P-34, P-35, P-224-225. There is no dispute that Student requires continuous services.
For these reasons, I conclude that the IEP should reflect Student’s need for continuous services through the life of the IEP (until 7/7/01) with no gaps, for example, during school vacations. However, WRSD need not provide the preschool group during school vacations or other holidays when the preschool group would not normally be meeting. Also, for the reasons explained by Mr. Wong, the extent of the services for the summer of 2001 need not be determined at this time.
Sensory integration (SI) techniques.
Student derives significant benefit from sensory integration (SI) techniques. Several witnesses explained that SI has been used (and should continue to be used) within Student’s individual therapy sessions, as well as within his preschool group, since Student often becomes distracted throughout the day, and his attention can be brought back through SI techniques. Testimony of Chase, Piniarski, Father. WRSD did not dispute this. The WRSD occupational therapist (Regele) acknowledged the importance of SI, explaining in her testimony that she would be utilizing SI within the occupational therapy for Student. She further explained that she would be consulting with the other service providers within ECC regarding incorporation of SI into all aspects of Student’s day. Exhibits P-29, P-30.
For these reasons, I conclude that the IEP should explicitly reflect that sensory integration (SI) techniques will be incorporated into Student’s individual therapy sessions, as well as his preschool group.
8. Goals and objectives.
Parents have objected to the adequacy of the goals and objectives contained in the IEP, and have proposed alternative language. Exhibits P-217, P-218. At the request of WRSD, Ms. Piniarski had drafted goals and objectives for Student, and they have been incorporated into the IEP. Testimony of Wong. Ms. Piniarski testified that Student has met some of these goals and objectives and he will move beyond others during the life of the IEP. However, no further evidence was submitted by either party relative to the goals/objectives in the IEP, Parents’ proposed goals/objectives or what other goals/objectives should be provided within the IEP.
On the basis of this evidence, it is not possible for me to make a determination that Student’s goals and objectives, as set forth in the June 2000 IEP, should be changed at this time. I also note that the IEP calls for Team meetings in November, January, March and May to assess Student’s progress (page 5 of IEP). Exhibits S-12, P-198. This should allow ample opportunity to reconsider and redraft, as necessary, Student’s goals and objectives.
9. Capacity of the WRSD program (ECC) to provide the requisite services.
Security of the proposed preschool group classroom.
Parents have raised concerns regarding the security of the space to be used by ECC. They note that Student tends to wander off and it could be dangerous for him to leave a building unattended. Testimony of Mother.
Mr. Wong testified that the security within the building to be used by ECC will include an alarm or other system to announce the unauthorized exit or entry of anyone. He also noted that Student would have a staff person accompanying him at all times throughout the day at ECC. On the basis of this evidence, I conclude that the security precautions at ECC are adequate for Student.
The capacity, in general, of ECC to provide the requisite services to Student, including the credentials, training and experience of the ECC staff.
Parents have raised concerns regarding the credentials, training and experience of the staff who would work with their son at ECC, and they seek assurance that these staff would be comparable to the staff who have worked with their son at PCPS.
At ECC, there are two certified speech/language pathologists, two speech assistants and one certified occupational therapist. The ECC teachers are certified to teach children with special needs at the moderate or severe level (see job description at exhibit # S-18). The ABA program assistants at ECC do not have to meet any particular minimum requirements regarding education or experience, but rather are trained on the job. There is no certification for this profession. At ECC, each ABA program assistant receives 18 contact hours of training from the May Center, as well as on-gong consultation from the May Center ABA lead therapist. Testimony Wong, Bicchieri, Campbell.
Services generally provided at ECC to children (such as Student) include ABA discrete trials, speech/language therapy, occupational therapy, physical therapy, and adaptive physical education. Speech and occupational therapy work together, and co-treatment can occur as necessary. Each student has his/her own ABA clinician, children can go for a full day, and a six-day program (including Saturdays) is available. Testimony of Ferguson, Wong, Campbell.
WRSD expects that it will soon fill a new position of ABA Facilitator (see job description at exhibit S-16) who will provide on-site supervision and support for the ABA program assistants, as well as additional training as needed. This person, who will have extensive ABA experience, will have responsibility for the twelve school districts within WRSD, as well as ECC. Testimony of Wong, Campbell.
WRSD used the May Center as a consultant to help design the ECC. The May Center continues to provide assistance to ECC – for example, through a lead therapist who provides on-site supervision, training of new ABA clinicians, on-going in-service training, consultation and occasionally an evaluation of the program. Testimony of Wong, Campbell.
Through these staff, ECC has the capacity to provide Student with a continuation of the services he has been receiving at PCPS, including speech therapy, occupational therapy, ABA therapy at ECC as well as at home, and a preschool group of no more than seven children attending the group at any one time. ECC has a summer program that is available to Student. Testimony of Campbell.
Although Parents have strongly communicated their concern regarding their son being served at ECC, Parents have presented no evidence that the ECC staff are not sufficiently qualified to provide the requisite services to Student, nor have they otherwise demonstrated that ECC does not have the capacity to provide these services.
For these reasons, I conclude that ECC staff have the requisite credentials, training and experience, and that ECC in general has the capacity to provide the requisite educational and related services to Student.
10. Transition issues.
Transfer to ECC.
Student appears to be particularly prone to having a difficult time with disruptions in his routine. A change in service delivery environment could cause Student to experience regression. With this concern in mind and given the marked success that Student has experienced at PCPS, the Parents as well as several of their experts, have taken the position that Student should continue at PCPS rather than be switched to any other service provider. Testimony of Mother, Chase; exhibit P-15.
Although I take seriously these concerns regarding regression as a result of a change of service provider, I find, for the reasons explained below, that Student should be transferred to WRSD’s program (ECC).
In general, WRSD should have the opportunity to develop its own capacity to provide services to children such as Student, and to transition children to its services when they turn three years old. A child does not have the right to continue indefinitely in a program that was begun during Early Intervention, when there is a sufficiently qualified program offered by the school district, unless there is persuasive evidence that transferring the child out of his/her program would likely jeopardize his/her educational development.
I am not convinced by Parents’ evidence that the likelihood of regression for Student is so significant as to preclude transfer to a different service provider. It is important to note that no evidence has been introduced to explain how likely it is that regression will occur, how much regression might actually occur (if it does occur) or how long it would take Student to recover from the possible regression. Merely the conclusion that regression could occur should not, by itself, automatically preclude transfer to an appropriate service provider operated by the school district. I also note that Student has already made one transition – from the May Center program to PCPS – apparently without any significant regression. Testimony of Schoick.
For these reasons, I conclude that Student should be transferred to ECC.
WRSD has proposed a transition plan (page 5 of the IEP) to include the ECC staff being introduced to Student at PCPS and becoming part of his services over a period of three days. Then Student would transfer to ECC, with PCPS staff accompanying Student to the ECC and providing decreasing amounts of services for five days while ECC staff provide increasing amounts of service, leading to full services by ECC at day five. Exhibits S-12, P-198.
Parents propose a more extensive transition plan, described in part B3 of this Decision. See also exhibit P-216.
WRSD witnesses testified in support of the transition plan in the IEP, noting that it provides a more extensive transition process to ECC than typically occurs with other children coming to ECC. Testimony of Wong, Regele. Parents offered no evidence to demonstrate either that the WRSD proposed transition plan was inadequate or that their proposed transition plan would better meet Student’s needs.
On the basis of this evidence, I find that WRSD should implement the proposed transition plan included within the June 2000 IEP, rather than the plan proposed by Parents.
Timing of the transition.
Because I have found that the EEC program has the capacity to meet Student’s needs, I need not consider the appropriateness of the PCPS program in general. However, I am also aware that, typically, an ABA program assistant is hired for each child at ECC (and this may not yet have occurred for Student), and that WRSD may therefore not be ready immediately to begin services for Student. I am also aware that ECC is moving into newly renovated space in a new location. Testimony of Wong.
It is apparent from Parents’ unrebutted evidence that PCPS has provided excellent services to Student, and that Student has made significant progress as a result of these services. I find that PCPS is capable of continuing to provide these services at least for an interim period, if this is necessary in order that there not be a gap in Student’s services. Testimony of Piniarski, Chase.
I therefore conclude that if WRSD is not at this time prepared to provide a transition to and continuity of services at ECC, Student should remain in the PCPS program on a temporary basis, with a continuation of his current services, until such time as WRSD is able to provide for continuity of services to Student at ECC. At that time, WRSD should begin implementation of the transition plan, as proposed by WRSD in the IEP, and the above-described services.
Student’s June 7, 2000 IEP (exhibits S-12, P-194 through P-219) is not reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. The following modifications shall be made to the IEP in order to comply with said standard:
1. The IEP shall provide for one-to-one ABA therapy for 26 hours per week, with a further increase to a minimum of 30 hours per week, provided that Student is able to benefit from the additional therapy. The ABA therapy should be primarily discrete trial work, but may also include some ABA therapy which is not strictly ABA discrete trial work (for example, ABA therapy during lunch, toileting and transitions, as set forth at page 17 of the June 7, 2000 IEP). The ABA therapy shall continue to be split between home-based services and center-based services and shall continue to include Saturday ABA services.
2. The IEP shall provide a minimum of three hour-long sessions per week of speech/language therapy and a minimum of three hour-long sessions per week of occupational therapy, provided that the length or number of sessions may be reduced to the extent that Student is not able to benefit from this amount of therapy. The speech/language therapy shall be co-taught with the occupational therapy.
3. The IEP shall provide that the maximum number of children attending Student’s preschool group at any given time shall not exceed 7 children (including Student).
4. The phrase “duration as appropriate” shall be removed from the service delivery grid (page 17) of the IEP.
5. The IEP shall reflect Student’s need for continuous services through the life of the IEP. However, WRSD need not provide the preschool group during school vacations or other holidays when the preschool group would not normally be meeting.
6. The IEP shall provide for sensory integration (SI) techniques to be incorporated into Student’s individual therapy sessions, as well as his preschool group.
Student’s educational and related services shall be provided by WRSD through its Early Childhood Center (ECC). However, if on the date of this Decision, WRSD is not prepared to provide a transition to and continuity of services to Student at ECC, Student shall remain in the Chatter Box program at Personal Communications Pediatric Services (PCPS) on a temporary basis (with a continuation of his current services) until such time as WRSD is able to provide continuity of services to Student at ECC. At that time, WRSD shall begin to implement the transition plan, as proposed by WRSD in the IEP, and provide services to Student at ECC as set forth in this Order. Said continuation of services at PCPS (and PCPS’ role in the transition of Student to ECC) shall be paid for by WRSD.
By the Hearing Officer,
Dated: August 17, 2000
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(e)(2) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(e)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(e)(3), “unless the State or local education agency and the parents or guardian agree otherwise, the child shall remain in the then current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission into school, in which case “with the consent of the parents or guardian, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(e)(3). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline, 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Her written assessment concluded:
It is recommended that [Student] continue to receive intensive behavioral intervention to address attention and compliance to imposed tasks. In addition, a highly structured group would be beneficial to increase social interaction with peers and to help him comply with imposed rules of social and classroom behavior. Daily speech therapy is recommended to enhance symbolic play skills and pragmatic language functions. Sensory integration therapy to reduce sensory overload and develop sensory processing skills for increased attentional focus is warranted.
Intensive services coupling strict behavioral programming with developmentally appropriate play-based therapies and group experience is recommended. It is important that [Student] receive intensive programming as early as possible to maximize his potential for learning at his home.
Exhibits P-41, P-42.
I also note, by way of introduction to this case, that WRSD has chosen to present little expert testimony or written reports/evaluations regarding the type or amount of therapeutic services that should be provided Student. The only WRSD witness with knowledge of Student and clinical expertise is the ECC occupational therapist (Regele), and she only addressed OT issues. The Parents, on the other hand, submitted extensive evidence in the form of written reports and letters, as well as several expert witnesses, regarding the type and amount of educational services needed by Student. WRSD witnesses instead focused more on the capacity of its program (EEC) to provide the requisite educational and related services for Student.
Parents have included in their rejection of the IEP a number of additional, more minor concerns that do not appear to be relevant to the more global issue of Student’s maximum possible educational development in the least restrictive setting; and where the Parents have submitted no evidence or legal argument supporting these claims, I will not further address these additional issues in this Decision.
In his testimony, the Team chairperson did not seek to minimize, justify or otherwise explain why the process he used to develop the IEP was appropriate.
WRSD sought to demonstrate through billing records and the testimony of the PCPS Office Manager that Student has not in fact received the amount of services reflected in the testimony of Parents’ witnesses. The billing records do reflect a lower level of services, but on cross-examination of the Office Manager, it became apparent that even on the basis of a relatively quick review (counsel and Parents only had approximately one hour to review detailed records subpoenaed by WRSD), there were multiple errors in these records, making them unreliable for purposes of establishing the actual number of hours of services provided to Student. Testimony of Kaplow, discussed above in part B of this Decision. I therefore decline to give any significant weight to this evidence.
Mr. Wong testified that he received input from the former ECC speech/language pathologist (Zuidema), and WRSD introduced Zuidema’s resume (exhibit S-4) which indicates that she has significant experience.