John S. v. Boston Public Schools – BSEA # 05-3476
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: John S.1 v. Boston Public Schools
This decision is rendered pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. 1401 et seq., 29 U.S.C. 794, and the corresponding regulations.
A hearing was conducted on September 7 and 8, 2005 at the Bureau of Special Education Appeals at 350 Main Street, Malden, Massachusetts. At the parties’ request, the record remained open until September 16, 2005 for receipt of the their closing arguments. The record closed on that day.
Persons present for all or part of the hearing were:
Ms. S. Mother of Student
Charles Vander Linden Attorney for Mother and Student
Maureen Gattine Asst. Program Director for the Mini-School Program at the South Shore Educational Collaborative
Mary-Ellen Efferen Educational Consultant
Elizabeth Kurlan Sr. Program Director of Litigation, Boston Public Schools
Alissa Ocasio Attorney for Worcester Public Schools
Alphonso Sinclair Paraprofessional, Boston Public Schools
Madeline Richmond Special Education Teacher, Boston Public Schools
Aida Ramos Assistant Program Director, Boston Public Schools
Shannon O’Haverty Occupational Therapist, Boston Public Schools
Vicki Haddix Speech/Language Pathologist, Boston Public Schools
Donna Allen Former Program Director of Special Education at English High School
Laura Davis Behavioral Specialist, Boston Public Schools
The official record of the hearing consists of Parent Exhibits marked as P1 – P17 and P30 – P59, and School Exhibits marked as S1 – S13 and approximately seven and a half hours of recorded testimony.
1. Whether the Boston Public Schools’ (Boston) proposed June of 2005 – June of 2006 IEP calling for John’s English High School placement in special education classes is reasonably calculated to provide him with a free and appropriate public education program (FAPE); if not,
2. Whether the Mini-School Program at the South Shore Collaborative (SSC) is reasonably calculated to provide John with FAPE.
Boston’s proposed placement at the English High School fails to provide for her son’s educational needs, for it lacks the comprehensive programming necessary for students diagnosed with autism. That is, it lacks consistency in behavioral programming, lacks an appropriate peer group for language and social skills development, lacks a social skills curriculum, and lacks sufficient academic challenge. Last year’s educational experience was severely inadequate, and there is little reason to believe that this year’s proposed program would be any better. This year’s program may provide a more stimulating academic setting, but at the expense of a more disjointed program, taught by several different teachers. That a 1:1 Paraprofessional (Para) is provided does not cure this problem. This disjointed program cannot offer the consistency of behavioral programming as well as language and social skills development so necessary for John.
Boston’s proposed program offers John an educational program that provides for his behavioral, academic, language, and social needs. Although John’s experience last year was difficult in the first semester, his experience dramatically improved after February, for Boston provided a Para, and John started taking medication that significantly improved his behavior and his ability to access learning. This year’s proposed program continues to provide this Para, and further provides John with several special education classes that offer more challenging academics and more opportunities for language and social skills development. That his program includes several different classes is a positive, not negative addition to his educational placement, for he does not evidence difficulties with such transitions and such different groupings of students and teachers.
STATEMENT OF THE FACTS
1. John is a 16-year old student who is diagnosed with autism. According to the Wechsler Intelligence Scale for Children, 4 th Edition, his full scale IQ score is 42. His reading abilities for single words and spelling lie at the 4 th – 5 th grade level, his math skills at the pre-kindergarten level, and his language skills at the four – five year old level. His gross and fine motor skills are at the five-year level, with low tone, strength, coordination. (S6) His social skills are significantly impaired, consistent with his diagnosis – he avoids eye contact, remains aloof, does not give affectionate responses, and is non-imitative of others. His communication skills are significantly compromised: he echoes words, uses one word at a time to communicate, is not able to have conversations, does not know how to use verbs, and is not able to answer questions about a statement. (P10) At school and at home, John has a history of violent behavioral outbursts due to his autism. (Mother, Richmond) The documentary evidence is replete with references to such behaviors.
2. John has attended Boston’s special education autism programs for many years. In his eighth grade, he attended Boston’s middle school. He had behavioral problems that year and was on a behavioral plan. (S14, Richmond)
3. In September of 2004, John entered Boston’s English High School’s autism program as a 9 th grader. This class offered John three peers; one who never attended, and two who were essentially non-verbal. (Efferen, Richmond) John’s first semester was fraught with behavioral problems, violent outbursts, and little if any academic progress. (S14) The behavioral episodes’ durations were from 45 minutes to 5 hours, and they occurred between 25 – 32% of school days. During such episodes, he was at risk for hurting himself or others. (S2) Frequently, he appeared tense and anxious. He had little social or language interaction with his peers. (Richmond, Efferen) Mother observed his decline in his use of verbal language and in his decision-making capabilities. Boston’s speech therapist also noted this decline in his verbal language, though Ms. Richmond did not. (Mother, Haddix, Richmond, P60) John was unable to work at the level of his math objectives. (S14, Richmond) His reading goals were reduced from the previous year. (P2, P3) On the other hand, John’s behaviors improved during the second semester (with the addition of a 1:1 Para and new medication). He had only three episodes, and their duration averaged 1 – 1 1/2 hours per episode. He appeared more comfortable and more invested in learning. His communication skills increased – he had better eye contact during conversation, and engaged in relevant conversation. (Richmond, Davis, S3, S4, S8, S9)
4. In November of 2004, Boston conducted a functional behavioral assessment but did not then design or implement a behavioral plan. (S2, Richmond).
5. Due to John’s violent behavioral outbursts, he was hospitalized at the Bournewood Hospital several times between November 22, 2004 and January 21, 2005, and then attended the hospital’s Partial Adolescent Program. (P13, P15, 16) His psychiatrist there noted his consistently aggressive and dangerous behaviors in the outpatient setting, and stated that he required long-term treatment in a more structured setting than Mother can provide. (P13) On February 11, 2005, John’s inpatient psychiatrist stated that based on his work with John over the last several hospitalizations, John’s behaviors were recalcitrant to standard therapeutic interventions; a more behavioral approach was needed; he required a more structured setting than previously available. He recommended a year round school for children with autism – a setting with an environment with low sensory stimulation, with the ability to implement a sensory focused diet, a strong language component, and a program with the ability to handle John’s extremely violent aggression. Finally, he stressed the importance of continued treatment with a child and adolescent psychiatrist. (P15) The staff at the Partial Adolescent Program stated that English High School can no longer meet his needs; that he requires a 1:1 assistance, he requires a more therapeutic environment focusing on behavior management, social skills, emotion regulation, and communication skills. (P-16)
6. Upon his return to school, Boston amended its IEP to address the first semester’s difficulties and his hospitalizations by adding a 1:1 Paraprofessional. Further, in April, Boston placed John in an English Language Arts class (ELA) for higher functioning special needs students. (Richmond)
7. Parent obtained two independent evaluations from Mary Ellen Efferen, a private educational consultant, and Dr. Roya Ostovar, a neuropsychologist at Harvard Medical School. On March 14, 2005, Mary-Ellen Efferen conducted the educational evaluation by observing John at school for 2 3/4 hours, interviewing John’s teacher, the program director, occupational therapist, and mother. She also reviewed John’s IEPs, progress notes, and evaluation reports. She recommended that John required a much more highly structured and integrated program than Boston was providing to him. She stated that such program must address his sensory, learning, behavioral, language, and social needs. She called for a behavior management system embedded in the educational program. She called for sequential instruction in reading, written expression and math. She called for a coordinated approach to the behavioral program as well as the language/academic components in order to ensure maximum predictability, maximum consistency in learning, and maximum reinforcement of skill development. She called for staffing experienced in and knowledgeable of the learning, language, and behaviors of students with autism. She reported that in her opinion, Boston’s program lacked a systematic embedded behavioral program; that its approach of controlling his behavior by avoiding any demands, could not lead to any academic or social growth; that it failed to include a sufficient sensory diet except during occupational therapy; and that John’s peers were inappropriate for him in that their lower language and academic skills offered no opportunity for language or social development. (P-7)
8. On April 15, 2005, Dr. Ostovar conducted the neuropsychological evaluation. He reported that John’s presentation was consistent with autism and moderate mental retardation. He recommended a program focusing on the needs of children with autism and providing intensive speech/language therapy, in part to increase his communication, and in part, to better his behaviors. He recommended such therapy in a 1:1 setting for 30 minutes x 3 times / week, as well as speech/language consultation. He recommended that the speech/language and occupational therapies be carried over throughout the day; such requires a coordinated effort with regular consultation. Further, it must be in the context of a program designed for children with autism and associated behavioral difficulties. He recommended that his academic program be a 12-month program and that it include an extended day component, that it have a strong behavioral component such as ABA, and that it have small classes of no more than 4-6 children. “It is crucial that the staff understands the function of his behavior; for instance, he may seem uninterested in the work; it may be due to a sensory issue, a language processing issue, or a failure to understand the directions.” He recommended the OT services for his fine motor as well as sensory dysregulation issues. (P-10)
9. On May 2, 2005, Boston developed its June of 2005 – June of 2006 IEP, calling for a continuation of John’s substantially separate special education program at English High School. This IEP continues the 2004 – 2005 program in that he is placed in the same special education class for students with autism and calls for his ELA class with the higher functioning special needs students. Although not written into the IEP, Boston proposed that, on a trial basis, John attend not only the ELA class, but that he attend two other classes outside of his homeroom class for autistic children. That is, Boston proposes that he attend a special education social studies class and a special education science class. (Ramos) The proposed IEP also calls for speech /language therapy 30 minutes, three times per week; occupational therapy 30 minutes / week and that this include a sensory diet; and adaptive physical education 80 minutes / week. Finally, the IEP calls for speech/language therapy consult 30 minutes for two times per month, and occupational therapy 30 minutes / week, and behavioral consultation for 45 minutes, two times per month2 . (P-2) The parents are rejecting this IEP and now seek a placement at the Mini-School at the South Shore Collaborative. (Mother)
10. In July of 2005, John’s pediatrician wrote a letter regarding Boston’s proposed IEP, stating that such a splintered program with larger language arts and science and social studies classes, would be not only inappropriate, but that it would be unsafe, given John’s behavioral problems last year. She stated that he was unable to be successful in the one small class; expanding it would lead to further problems. (P-12)
11. On July 27, 2005, Ms. Efferen updated her evaluation report. Such was based on a review of the second semester’s evaluations, educational updates, and the May 5, 2005 IEP. She commended the Boston staff for incorporating her previous recommendations, but stated that her recommendations were intended for a self-contained, comprehensive program with curriculum, instructional methodology, language level, social skills and behavior management systems all designed for students with learning/language profiles similar to John’s. She states:
John’s language and cognitive deficits require consistency in language demands (words, phrases, response expectations, etc.), prompting and fading levels, and carefully designed and sequential instruction where new information is explicitly linked to previously learned information, in addition to scaffolding, visual supports, preview, modeling and demonstration of new vocabulary and key concepts and ample opportunities for review and practice. (P-8)
12. Ms. Efferen opines that with the proposed program placing John in several different classrooms with different teachers and peers, the staff could not provide the needed consistency as she described. She acknowledged that John’s Para would be able to provide some consistency, however, she notes that his training and experience with students with autism is limited, and he is not a special educator. Further, if he were absent, the one source of consistency would be absent. She was further concerned about John’s potential for failure in the language arts class where he would be with peers having significantly higher skills than his. Finally, she expressed concern about John’s ability to develop social skills where he is with several different peer groups. She reiterated the need for a well-coordinated, comprehensive social skills program with a scope and sequence embedded throughout the school day. All staff should be trained in such. She also stated that she saw no evidence of a consistent behavior management system embedded into the program, nor a behavior plan in the IEP. She expressed concern that the newly proposed IEP had a reduction in the level of difficulty of the benchmarks, as well as in the standard or frequency for success. She provided specific examples of such, comparing the 2003 – 2004 IEP to the 2005 – 2006 IEP. (P-8)
13. The Mini-School Program at SSC is located at the Norwell High School. It offers an extended day program with a 7-week summer component. It specializes in the needs of autistic high school students. The behavior programs and the teaching strategies are based on applied behavioral analysis. It provides language based programming, positive behavior management, and acquisition of functional life skills. Social and communication skills are a strong component of the program. It provides a low teacher-student ratio in a class of eight students. At least five of the students have diagnoses as well as language, academic, and social skills similar to John’s. The teacher proposed for John has at least four years experience at the school, and thus is experienced in implementing behavioral program and addressing the needs of autistic children. The program is staffed by special education teachers, speech/language therapists, occupational therapists (who use sensory integrated techniques), and physical therapists, and their services are provided as needed. It also provides biweekly parents’ group focusing on the use of behavior management techniques at home. Further, a parent-home coordinator/behavior specialist works with the students and parents at home as needed. (P56, Gattine)
FINDINGS AND CONCLUSIONS
I find that Boston’s proposed 2005 – 2006 IEP is not reasonably calculated to provide John with an appropriate education. Rather, the South Shore Collaborative’s program is reasonably calculated to provide such. Accordingly, Boston shall immediately develop an IEP placing John at the Mini-School Program at the South Shore Collaborative for the 2005 – 2006 school year. My reasoning follows.
1. There is virtually no dispute as to John’s learning profile and his educational needs. He requires a strong language component to address his limited pragmatic language and expressive language skills. (Efferen, Haddix, P15, P7, P8, P10) The ramifications of limited communication skills are clear. Boston’s own psychologist wrote “While an eager learner, John is likely to become frustrated at times when he is unable to communicate effectively with others around him.” (P32 at p. 7) In December of 2004, his teacher reports that he “has a lot of difficulty verbalizing his feelings … when frustrated, confused or angry”. (S14 at p. 3) Dr. Ostovar, neuropsychologist, recognized the importance of language development when he stressed the need for intensive speech/language therapy as well as carryover throughout the day. (P10) John requires a strong behavioral component. As stated by Boston’s behavioral consultant in June of 2005, “Behavioral incidents and social and emotional concerns have been a primary focus of my consultation meetings with staff.” (S3, Efferen, Davis) The parties may dispute the details of a behavioral plan, but they do not dispute the need for one. (Efferen, Davis) John requires a strong social skills component. (Efferen, Richmond, Haddix) Finally, Ms. Efferen is persuasive that John requires a well-coordinated and integrated program. (Efferen, P7, P8) Boston likewise recognizes this. As Ms. Davis stated on November 1, 2004, John’s ability to regulate anxiety and behavioral escalations is dependent on OT, Speech therapy, and his classroom experience working together. (S15)
2. Boston’s only class for autistic children fails to offer John appropriate peers for his language, academic, and social skill development. It is therefore highly inappropriate. The experts are unanimous in asserting that language and social skill development is critical for John, yet Boston ensures that only one of the proposed peers offers John opportunities for developing his social and communication/language skills. Three of the peers are non-verbal or close to such. The fourth peer may offer such opportunities, however, it is unclear whether that student will be attending this class. (Richmond) Ms. Efferen is persuasive that ensuring only one appropriate peer in the class designed for students with autism, is insufficient assurance that Boston’s program is reasonably calculated to address his educational needs, given the importance of his language and social skill development. (Efferen) In fact, Boston recognizes this and attempts to remedy the problem by placing John in higher functioning classes for daily classes in language arts, social studies, and science. (Richmond, Ramos) These classes may offer better opportunities for use of his language and social skills in that the peers have higher level language skills. However, there is no evidence that the teachers in these classes are trained to address the language and social skills of an autistic child. Further, even if these classes were appropriate, that the one class designed for autistic children fails to address his language and social skill development is in itself, insufficient for John, given the importance of John’s skill development in those areas.
3. The paucity of supportive evidence renders Boston unpersuasive in its assertion that its proposed ELA, social studies, and science classes are reasonably calculated to address John’s academic needs. First, Boston admits that the social studies and science classes are not in the proposed IEP (in fact, no regular education teacher attended the TEAM meeting) and are intended as a trial to see if they are appropriate for him. Boston offered virtually nothing supporting an assertion that the classes are appropriate for John. (Richmond, Ramos) As for the ELA class, Boston provides neither 2004 – 2005 progress reports from the ELA teacher, nor any testimony from the teacher. Thus, there is little to support its position as to the appropriateness of that class for John. The speech/language therapist testified briefly as to John’s good participation in this ELA class, however it is unclear whether the class provides an appropriate academic setting and whether the teacher is sufficiently trained to address John’s behavioral, language, and social needs. (Haddix) It may be that the peers offer better opportunities than provided in Ms. Richmond’s class. This, in itself, is not sufficient to render the classes appropriate. It should be noted that these classes, though special education, are not labeled as classes for autistic children. Given John’s behavioral difficulties in the class designed for autistic children, Boston is unpersuasive that placing him in a class not designed for autistic children, can appropriately address his needs..
4. Boston was unpersuasive that it can offer a sufficiently intensive behavioral program. Despite the severity and number of John’s behavioral episodes during last year’s first semester, and despite the fact that John had a behavioral plan written in May of the previous year, and despite the fact that in September of 2004, Ms. Davis requested data collection, in the first semester, Boston failed to respond in any thorough or comprehensive way. (Richmond, Davis) Staff did attempt to identify triggers and tried to avoid them. However, they admittedly had difficulty with this. (Richmond) Boston certainly did not implement any formal plan during the first semester. Ms. Davis had recommended the use of visual cues and a positive reinforcement system of 4 positive reinforcements for every negative interaction, however, neither Ms. Richmond’s testimony nor Ms. Efferen’s testimony supported a finding that this was implemented in any systematic way. (S15) John’s behavioral episodes would last as long a 5 hours, yet Boston had no data documenting the episodes, the intervention, etc.. (Richmond) Rather, Ms. Richmond cut back on expectations in order to avoid episodes. Boston asserts that it implemented a plan after John’s return from hospitalization due to his behaviors. Yet, Ms. Efferen observed the program and was persuasive that Boston had still failed to do so. She has significant expertise in the area of programming for students with autism and she observed Boston’s class in March of 2005. Even if it had failed to provide a plan during the first semester, it certainly had sufficient time to do so by March. She saw no visual signs of a plan, visual checklists, reminders with tokens, rewards, etc.. (Efferen) Yet John’s psychiatrist at the Bournewood Hospital had explicitly called for a program with a more behavioral approach, given his being recalcitrant to standard therapeutic interventions. (P15) The evidence also shows that later in May, even after a data collection system was in place, it was only partially implemented, for “data collection was time consuming”. (Sinclair) Finally, Boston’s behavioral specialist, Ms. Davis, may be capable of providing excellent consultation, but it was one-step-removed – i.e., through the Program Director, Ms. Allen. Ms. Richmond’s testimony supported a finding that this consultation “from afar” and the amount of consultation provided was insufficient to provide Ms. Richmond with the necessary support. It may be that John’s behavior improved during the second semester, however the behavioral strategies relied on avoiding challenges, and thus avoiding more challenging academics. It also relied on the Para who developed an excellent relationship with John. Certainly, this may be a positive factor. However, Boston has produced insufficient evidence that John’s needs can now be met by a para rather than by a highly structured behavior program. Ms. Richmond was not persuasive that if John were to return to Boston’s program, that she could provide the level of expertise and structure necessary for John to make educational gains. Indeed, Ms. Efferen was persuasive that Ms. Richmond’s autism class is not designed for the level of structure necessary for John to make behavioral as well as academic and social progress. Without any evidence as to the ELA, social studies, and science classes, Boston is not persuasive that it can provide a sufficiently structured behavioral program in these classes.
5. It is unclear whether Boston can provide John with the level of social skill development necessary for him. It is clear that it would not occur in the autism classroom, given the peer grouping. The evidence was too sparse to determine whether it would be provided in the other classes. However, it is noteworthy that despite the central importance of such skill development, Ms. Efferen saw no such instruction while she was observing. (Efferen)
6. Boston is unpersuasive that it can provide a sufficiently comprehensive and coordinated program necessary for John. Given his lack of progress last year, the intensity of services becomes more important. Thus, Ms. Efferen is persuasive that John’s program must ensure a carryover of language skills from speech/language therapy to social skills class and throughout the academic/non-academic classes. Similarly, such carryover is necessary for behavioral planning and social skills development. Although such is theoretically possible, Boston failed to provide it last year3 and is unpersuasive that it can accomplish this, given the addition of several new teachers. Ms. Efferen is persuasive that the Para may provide some carryover, but the responsibility must lie with the teachers, not the Para.
7. Several procedural errors in the TEAM process are noted; though there is no finding as to whether these errors substantially affected the outcome of Boston’s proposed IEP. First, it is noted that the TEAM developing the proposed IEP failed to include a special education teacher who works with John. The only attending teacher4 was John’s Para, and although he may be excellent and may have established a close relationship with John, he is not a special education teacher or provider as intended by the law. Rather, the TEAM must include the special education provider who is … responsible for implementing the IEP. (P2) (See 20 USC 1414(d)(1)(B); 34 CFR 300.344, 300.552). Second, the IEP appears to lack any description of John’s strengths and key evaluation results summary. (P2, page 1)
II. I find that the South Shore Collaborative’s Mini-School program is reasonably calculated to provide an appropriate education. This program is designed for autistic students. Ms. Gattine was persuasive that it provides a coordinated and intensive behavioral program She has extensive experience teaching and now supervising staff in behavioral programs for autistic children. Significant focus is given to data collection in order to individualize their plans, identify antecedents, provide positive reinforcement, etc. Ms. Gattine develops many of the plans and is in the classroom more than 50% of the time. The program focuses on language pragmatics and social skill communication as well as academics, self-help skills, etc.. The proposed class of eight students offers at least five peers whose diagnoses, as well as language, academic, and social skills are similar to John’s. The teacher has at least four years experience at the school, thus is experienced in implementing behavioral programs and addressing the needs of autistic children. The behavioral program is embedded in the curriculum and is carried out throughout the day. The language and social skills are taught throughout the day. (Gattine, P56, P57) Boston offered no evidence that would contradict Parent’s position as to this program’s appropriateness for John.
Boston shall immediately develop an IEP calling for John’s educational placement at the South Shore Collaborative’s Mini-School Program.
By the Hearing Officer,
John S. is a pseudonym in order to protect the confidentiality of the student.
The IEP’s grid states that the behavioral services by the behavioral specialist are direct services, however, page one of the IEP states that it is a consult, not direct service. No testimony supported the intended direct service delivery.
Ms. Richmond had not discussed John’s performance with his art teacher, his health teacher, or the ELA teacher, for such coordination was not contemplated.
A special education teacher attended the meeting, but this person evaluated John and did not teach him.