Norwood Public Schools – BSEA # 11-5444
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Norwood Public Schools
BSEA # 11-5444
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on May 19, 24, 26, 27, and 31, 2011 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Carol Hamilton-Dodd Occupational Therapist, Braintree Rehabilitation Hospital
Christian Benavides Director of Professional Development, Beacon ABA Services
Robert Ross Staff Person, Beacon ABA Services
Rafael Castro Neuropsychologist, Integrated Center for Child Development
Michael Dorsey Private Behavioral Psychologist
Joanne Ryan School Nurse, Norwood Public Schools
Katherine Hannon-Perera Board Certified Behavioral Analyst, Norwood Public Schools
Michele McCarthy Speech-Language Pathologist, Norwood Public Schools
Cindie Neilson Assistant Director of Student Services, Norwood Public Schools
Kelli Bailey Special Education Teacher, Norwood Public Schools
Kayla McAlister Aide, Norwood Public Schools
Kevin Harkins Consultant, Behavioral Health Network
Robert Putnam Senior Vice President of Consultation, May Institute
Joyce Onischewski Administrator of Special Education, Norwood Public Schools
Cynthia Moore Advocate for Parents
Jennifer Gavin Attorney for Parents and Student
Lincoln Taggart Attorney for Parents and Student
Tim Norris Attorney for Norwood Public Schools
Melissa Murray Attorney for Norwood Public Schools
Brenda Ginisi Court Reporter
Darlene Coppola Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-50; documents submitted by the Norwood Public Schools (Norwood) and marked as exhibits S-1 through S-56; and five days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 3, 2011 regarding Norwood’s use of a hip stabilizing belt, and written closing arguments were due on June 29, 2011 on all other issues.1 The record closed on June 29, 2011.
In order to apprise the parties in a timely manner of my findings and conclusions in this case regarding the limited issue of the appropriateness of Norwood’s using a hip stabilizing belt, I issued a partial Decision on June 7, 2011. The partial Decision is attached as Appendix A.
The principal issue in dispute involves the appropriateness of existing and proposed services and placement, as reflected within Norwood’s currently-proposed IEP, for a five-year-old, multiply-disabled boy whose underlying deficit is Autism.
Norwood’s educational program for the 2010-2011 school year included placement within an integrated pre-school program. Norwood has proposed placement within an integrated kindergarten for the 2011-2012 school year. Educational services include a dedicated, full-time 1:1 aide, ten hours per week of discrete trial training, six hours per week of home-based services, related services of occupational therapy, physical therapy and speech-language services, and six weeks of summer services.
Parents took the position that in order for their son to make effective progress commensurate with his learning potential and to avoid regression, his services must be substantially intensified, including a year-round, substantially-separate program for students on the Autism spectrum, together with as much as 20 hours per week of home-based services.
This dispute was intensively litigated. Each party supported its position with the testimony of accomplished, sophisticated and credible experts who had evaluated and/or observed Student, sometimes on multiple occasions. Each of Parents’ three principal experts (Rafael Castro, Michael Dorsey, Nathan Doty) as well as Norwood’s principal expert (Robert Putnam) provided testimony and written report(s) which have informed the analysis in the instant Decision.
Norwood sought to defend the appropriateness of its proposed IEP as it is currently written. However, Dr. Putnam, who testified as Norwood’s principal expert witness, made a number of recommendations to intensify and to otherwise change and improve Norwood’s proposed educational program (for example, by substantially increasing the number of hours of discrete trial training at school and the number of home-based services, as well as increasing the level of supervision of the program), while maintaining Student within the integrated classroom proposed by Norwood. To a large extent, I found Dr. Putnam’s testimony to be persuasive, and I adopted many of his recommendations for Student’s services and placement. As a result, this Decision maintains Student in Norwood’s proposed placement but intensifies the school and home-based services.
There were several other disputed issues. First, the parties disagreed as to the appropriateness of Norwood’s proposed use of a hip stabilizing belt on the Rifton chair used by Student when eating at school. This issue took on importance for Parents because they perceived Norwood as unnecessarily proposing to restrain their son at school. I found in favor of Parents on this issue, as is reflected within the attached partial Decision (see Appendix A); however, Norwood has now obtained a physician’s order that allows the use of this device (see my 8/2/11 ruling on Parents’ compliance motion). Second, the parties disputed whether Norwood must reimburse Parents for their independent observation and home assessment by Dr. Dorsey . I found that Parents are entitled to reimbursement of the home assessment but not the observation. Third, Parents sought compensatory services and reimbursement for services from February 2011 when Parents first rejected Norwood’s IEP. I found for Norwood on this issue.
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Norwood (exhibits P-18, S-19) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, what additions or other modifications must be made to the IEP in order to satisfy this standard for purposes of prospective services and placement?
3. Was this IEP appropriate when Parents rejected it on February 10, 2011; and if not,
· are Parents entitled to compensatory services; and if so, what compensatory services are due?
· are Parents entitled to reimbursement for out-of-pocket expenses for home-based services privately obtained by Parents?
4. Did Norwood fail to implement agreed-upon portions of this IEP regarding home-based services; and if so, what compensatory services are due?
5. Are Parents entitled to public funding of an independent observation and home assessment?
6. Is it appropriate for Norwood to use the stabilizing belt on the Rifton chair when Norwood staff are feeding Student at school (addressed in separate, partial Decision)?
A. Student Profile
Student is a five-year-old boy who lives with his Parents in Norwood, MA. Student’s principal diagnosis has been Pervasive Developmental Disorder Not Otherwise Specified. However, he has been more recently diagnosed with Autistic Disorder in light of the severity of his communication and social deficits. Student has substantial motor deficits, including hypotonia, uneven gait, oral-motor deficits, thumb hypoplasia, fine motor difficulties, and a history of tremors. He has a complicated medical history, including gastrointestinal problems, respiratory issues, mild congenital heart defects, and autonomic dysregulation. Testimony of Mother, Castro, Doty, Dorsey, Putnam; exhibits P-3, P-14, P-18, P-49, S-19.
As a result of these multiple deficits, Student presents with significant impairments across a number of domains of development, including speech and language, visual-motor skills, and social-emotional functioning. Student’s language skills are particularly delayed, falling at the one to early two-year-old level, together with significant articulation difficulties that impede his intelligibility. Student has also demonstrated increasingly challenging behaviors in the home. Testimony of Mother, Castro, Doty, Dorsey, Putnam; exhibits P-3, P-14, P-18, P-49, S-19.
Notwithstanding these limitations, Student is a sweet boy who responds well to contingent reward and highly structured learning. Student has also been demonstrating an increasing interest in social interaction. His behavior at school has improved to the point that he has had few behavioral difficulties at school during the 2010-2011 school year. Testimony of Mother, Doty, Putnam; exhibits P-3, P-14, P-18, P-49, S-19.
B. Currently-Proposed IEP
Student’s currently-proposed IEP, which runs from 11/08/10 to 11/08/11, has placed him within an integrated pre-school program for 24.5 hours per week during the 2010-2011 school year, and would place him in an integrated kindergarten program for 27.5 hours per week for the 2011-2012 school year at Norwood’s Willett Early Childhood Center. Within these integrated programs, Student is assigned a dedicated, 1:1 aide who provides Applied Behavior Analysis (ABA)/Discrete Trial Training (DTT) for ten hours per week. Exhibits P-18, S-19.
The IEP proposes the following additional direct services during the school year:
· speech-language (speech) services for 30 minutes, three times per week in a pull-out and once per week within the classroom;
· occupational therapy (OT) services for 30 minutes, once per week in a pull-out and twice per week within the classroom;
· physical therapy (PT) services for 30 minutes, twice per week in a pull-out;
· feeding/oral motor services from an occupational therapist for thirty minutes, once per week within the classroom.
The IEP also proposes the following social skills instruction within the integrated setting: social skills instruction for 10.5 hours per week during the 2010-2011 school year, with this service increased to 13.5 hours per week during the 2011-2012 school year. Exhibits P-18, S-19.
The IEP also proposes behavioral consultation at school for an hour per week, and OT, PT and speech consultation for a half hour per week. Exhibits P-18, S-19.
The IEP proposes the following additional home-based services: ABA tutor for six hours per week, and behavioral consultation for one hour per week. During the summer, the ABA tutor would provide services only during the six week extended year program described below. Exhibits P-18, S-19.
The IEP proposes the summer services for five hours per day, four days per week for six weeks. The 1:1 aide would be assigned to Student during this time, and she would provide five hours per week of ABA/DTT. During these six weeks, Student would also receive the following related services: speech for a half hour, twice per week; OT for a half hour, twice per week; PT for a half hour, once per week; feeding/oral motor services for a half hour, once per week. Exhibits P-18, S-19.
Parents neither accepted nor rejected this IEP when it was proposed in November 2010. However, by letter of February 10, 2011 from their attorney, Parents fully rejected Student’s placement and partially rejected the services proposed within this IEP. This letter also rejected “any new goals or objectives where the goal or objective in the previous IEP was not fully met.” Norwood’s Assistant Director for Special Education Services (Cindie Neilson) interpreted this part of the letter to mean (and so advised the Team members) that Norwood staff and service providers should continue to work on each goal from the previous IEP (and not move onto the comparable goal in the current IEP) until all of the benchmarks under that particular goal have been met. Testimony of Mother, Neilson; exhibit P-26.
C. Educational History Prior to the 2010-2011 School Year
Prior to turning age three, Student received early intervention services, including 14 hours per week of ABA services in the home and feeding therapy. During this time period, Parents provided private physical therapy, occupational therapy and speech-language services for their son. Mother testified that as a result of these services, she and her husband observed good progress, and they were generally pleased. Testimony of Mother.
On September 10, 2008, Norwood conducted a preschool developmental evaluation that included speech, OT, PT, and educational components. Testimony of McCarthy, Hayden-Sloane, Stoddard; exhibit S-9.
When Student turned three years in November 2008, Norwood began providing special education and related services to Student pursuant to an IEP that ran from 11/24/08 to 11/24/09. These services were provided within a substantially-separate setting that included 4.5 hours per week of ABA/DTT services. Also included were speech, OT, PT, early childhood skills services, and summer services. Norwood did not provide any home-based services at this time. Parents fully accepted this IEP. Testimony of Mother; exhibit P-2.
In April and May 2009, Parents arranged for their son to receive a neurodevelopmental assessment from the Integrated Center for Child Development (ICCD). The ICCD evaluators were Linda Daniel, PhD and Rafael Castro, PhD. Dr. Castro testified regarding this assessment as well as a subsequent assessment in May 2011, discussed separately below. Dr. Castro testified that he supervised the neuropsychological evaluation in April and May 2009, and then conducted the assessment (with the assistance of another person) two years later in May 2011. His involvement in these evaluations included observing Student, meeting with Parents and reviewing all testing and reports. Testimony of Castro; exhibits P-3, P-49, S-17.
The ICCD assessment found that Student’s cognitive abilities (based on testing used with children with notable language difficulties) revealed that his overall cognitive skills aggregate in the borderline range (2 nd percentile). In comparison to his previous assessment at age 29 months when his relative standing was in the deficient range (functioning at approximately 44% of developmentally expected capacity), his current performance indicated progress (functioning at approximately 68% of developmentally expected capacity). Dr. Castro testified that the gain from 44% to 68% likely reflected the results of the intensity of the early intervention services (including 14 hours per week of ABA services), and likely reflects his potential if given appropriate services. Testimony of Castro; exhibits P-3, S-17.
The ICCD assessment report recommended that Student “ should continue to be enrolled in a full-time preschool program (25 to 30 hours per week, 12 months per year) that is specifically created for educating children with Autism Spectrum disorders ” (emphasis in original). The report further recommended that the program consistently use ABA principles with 10 to 12 hours per week of DTT, be provided by qualified and experienced behavioral specialists, and be supervised (through at least three hours of consultation per week) by a Master’s level professional, such as a BCBA. The evaluation report further recommended four to six hours per week of home-based services, with one hour per week of home-based consultation and parent training. Speech, OT and PT services were also recommended although no specific number of hours was mentioned. Finally, the report took the position that programming should extend year-round, with no more then ten consecutive days without services. Testimony of Castro; exhibits P-3, S-17.
By letter of July 31, 2009, Student’s physician (Patricia Davis, MD) at the Learning And Development Disabilities Evaluation and Rehabilitation Services (LADDERS) program at Mass. General Hospital, wrote that she saw Student at the LADDERS program for a neurodevelopmental assessment and evaluation of current services. In her letter, she recommended an immediate functional behavioral assessment and “full implementation” of the above recommendations from the ICCD evaluation. Exhibits P-4, S-16.
On August 4, 2009, Student underwent a physical therapy assessment at Mass. General Hospital. Exhibit P-5.
Norwood next proposed an IEP that ran from 10/1/09 to 10/1/10. The services were substantially the same as those described within the currently-proposed IEP (described in detail above in part III B) except that (1) home-based services were proposed at three hours per week instead of the currently-proposed six hours per week, (2) this IEP proposed 7.5 hours per week of pre-academics (which are not listed on the currently-proposed IEP), and (3) the IEP did not include summer services but instead stated that these services would be defined in a March 2010 Team meeting. With the exception of the end date of the home tutoring, Parents accepted the services and placement proposed in this IEP. Testimony of Mother; exhibits P-9, S-21.
On November 4, 2009, Norwood contracted with the May Institute to conduct a functional behavior assessment to determine the cause and function of Student’s maladaptive behaviors. The assessment recommended the development of a behavior support plan, and made specific suggestions regarding strategies for reducing behaviors and developing replacement behaviors. Exhibit S-8.
On May 12, 2010, Norwood requested consent for academic, occupational therapy, speech-language therapy, physical therapy, health, and home assessments, as well as an observation of Student. On May 17, 2010, Parents consented to all of these assessments and observation; and on the consent form, Parents also requested a neuropsychological assessment and an educational assessment. Testimony of Mother; exhibit P-7.
In May 2010, Norwood conducted a second preschool developmental evaluation that included speech, OT, PT, and educational components. The report noted Student’s significant delays in multiple developmental areas, and his continued need for a highly structured learning environment with opportunities for individual and small group instruction, with the assistance of a 1:1 aide. Testimony of McCarthy, Hayden-Sloane, Stoddard; exhibit S-6.
On May 25, 2010, a functional behavior assessment was conducted by The Education Collaborative (TEC). The assessment, which was contracted for by Norwood, concluded that many of Student’s behaviors serve an attention function (i.e., to gain or maintain adult presence) and a “tangible” function (i.e., to gain or maintain access to preferred items or activities). The report noted: “It can not be stated clearly enough the importance of communication to [Student’s] behavioral repertoire.” The report recommended that Student’s behavior support plan be amended to include additional components regarding preventive strategies, reinforcement system for pro-social behavior, consequences for display of challenging behavior, and a plan for increasing communication. Testimony of Mother; exhibits P-12, S-7.
Following this functional behavior assessment, Norwood contracted with the May Institute to prepare a behavior support plan, which is dated May 2010. The plan listed the following seven target behaviors to increase: requesting attention, increasing wait skills, take turns, increased independent play and interacting skills, community safety, and feeding skills; and listed the following behaviors to decrease: pulling out G-tube, head banging, gagging, self-biting, and heat butting, biting others. The plan described specific strategies for responding to each of these behaviors. Mother testified that no Team meeting has reviewed or approved this plan. Testimony of Mother; exhibit S-31.
Written progress reports as of June 2010 stated that Student’s language skills continued to grow, including greater ability to label objects and pictures, longer utterances, greater ability to spontaneously produce CVC syllables, and increased uses of “yes” and “no” to accept or decline offers throughout his school day. The reports stated that there were improvements in receptive language skills, including pointing to pictures, and identifying objects by their function; but he had not met his benchmark of following two-step directions, and he did not make further progress regarding part/whole picture identification tasks. The reports indicated that he made progress in preschool readiness skills, including completing simple puzzles, matching pictures to objects and vice-versa, identifying letters of the alphabet, identify the symbol and quantity up to five, and identify the colors of the rainbow. He made reported progress in social and emotional skills, including playing independently with a toy for five minutes, playing interactively with a peer for five minutes, responding and initiating greetings with peers, following instructions, independently joining peers, and following group instruction. He also made reported progress in sensory processing/motor planning, visual/fine motor skills, oral motor skills, and gross motor skills. Exhibits P-13, S-22, S-23, S-24, S-25.
Near the end of the 2009-2010 school year, Student transitioned from a substantially separate classroom to an integrated preschool classroom. Testimony of Mother.
By letter of July 13, 2010, Dr. Davis wrote that she again saw Student at the LADDERS program for a neurodevelopmental assessment and evaluation of current services. Dr. Davis recommended “continuation in his integrated placement given documented decreased self-injurious behavior and increased developmental gains in that placement.” She further wrote: “He requires role modeling of typically developing children given his high level of incidental learning and emerging social skills.” Exhibit S-15.
D. 2010-2011 School Year
For the 2010-2011 school year, Student has been placed in an integrated pre-school classroom that includes 14 children (seven of whom have IEPs), one teacher, two aides, and Student’s dedicated 1:1 aide (Christine Venuto). Prior to taking responsibility for Student, Ms. Venuto received five hours of training from Norwood’s BCBA (Katherine Hannon-Perera). She also receives on-going in-service training from Ms. Hannon-Perera. Testimony of Bailey, Venuto.
In the classroom, Student communicates through a combination of verbalizations, gestures, sign language, and use of the iPod Touch. He takes the initiative to interact with other children in the classroom and with the classroom teacher and aides. He appears to enjoy his interactions with others and generally seems to be happy in the classroom. Testimony of Bailey, Hannon-Perera.
Student’s ten hours of ABA services per week in the classroom are broken down into a half hour per day focused on social skills and one and one-half hour per day consisting of discrete trials—for example, working on matching, block design, and categorizing. In the classroom, Ms. Venuto is also working on daily living skills such as taking off and hanging up his coat, washing hands after going to the bathroom, and using a zipper. Testimony of Bailey, Venuto.
The ABA/DTT services are provided by Ms. Venuto under the supervision of the classroom teacher (Kelli Bailey) and Ms. Hannon-Perera. Ms. Hannon-Perera comes into the classroom on a weekly basis. She observes for approximately one to two hours and then meets with Ms. Bailey for approximately one-half hour to make adjustments in Student’s educational program. Testimony of Venuto, Bailey, Hannon-Perera.
The ABA program book is written and frequently revised on the basis of the Assessment of Basic Language and Learning Skills – Revised (ABLLS). ABLLS is used as a curriculum guide and on-going reference to teach Student skills in the following domains: cooperation and reinforcer effectiveness, visual performance, receptive language, vocal imitation, requests, labeling, intraverbal, and spontaneous vocalization. A review of the ABLLS information for Student reveals what is being worked on and what progress is being made. Testimony of Hannon-Perera; exhibits S-26, S-27.
On September 23, 2010, Nathan Doty, PhD, conducted a private neuropsychological assessment of Student. Dr. Doty’s evaluation report recommended all-day, year-round instruction in a therapeutic school setting for children with Student’s profile, with the assistance of a 1:1 aide and ABA therapy. The report further recommended intensive speech, OT, PT and direct, social pragmatic instruction integrated across the curriculum. Home-bases services of 12 hours per week were also supported. The report emphasized that development of functional communication skills is “essential” for Student, and recommended daily speech-language services for this purpose. Testimony of Doty; exhibits P-14, S-14.
On October 14, 2010, Mother observed Student at school. Mother’s notes indicate that Student was frequently biting his hand (e.g., 12 times during circle time, 19 times during speech therapy and four times during ABA therapy) and that he threw objects three times during ABA services. Testimony of Mother; exhibit P-15.
In an October 20, 2010 letter, Dr. Davis wrote that she again saw Student at the LADDERS program for a neurodevelopmental assessment and evaluation of current services. In her letter, she indicated agreement with the recommendations from Dr. Doty’s neuropsychological evaluation, discussed above. Exhibits P-16, S-13.
On October 22, 2010, Norwood conducted a third preschool developmental evaluation that included speech, OT, PT, and educational components. The report noted increased skills in “many areas” as reflected within the ABLLS from May until November 2010, and the report listed those areas of improvement. The speech/language portion of the evaluation found that on a language-naming test, Student scored at the third percentile and on a language-comprehension subtest, he scored at the first percentile. The occupational therapy portion of the evaluation found that Student’s fine motor skills improved although his test scores remained in the first percentile. The physical therapy portion of the evaluation found that Student scored at the first percentile in body movement and at the third percentile in object movement. The report’s summary noted Student’s significant delays in multiple developmental areas, and his continued need for a highly structured learning environment with opportunities for individual and small group instruction, with the assistance of a 1:1 aide. Testimony of McCarthy, Hayden-Sloane, Stoddard, Bailey; exhibit S-5.
On November 8, 2010, the IEP Team met to review Student’s progress and propose a new IEP. An IEP was proposed for the period 11/08/10 to 11/08/11 (the IEP has been described in detail above in part III B). Parents did not immediately accept or reject this IEP, but by letter of February 10, 2011, Parents rejected the placement and partially rejected the services (as discussed in more detail above in part III B). Exhibits P-18, P-26, S-19.
In November and December 2010, a private educational program review and consultation was conducted at Parents’ request by Tracy Stoll, M.Ed. Her report reflects three days of school observation of Student, as well as parent interview and a records review. She generally observed that Student enjoyed the positive attention of staff who was “dedicated to his well-being”, he was motivated to please the adults around him, and he demonstrated pleasure at being in school among his peers and teachers. Noting that Student had shown “some progress” but was unable to achieve many of his IEP goals and objectives for the previous IEP period, Ms. Stoll adopted Dr. Doty’s recommendations (summarized above) regarding educational placement. Exhibits P-17, S-12.
On December 2, 1010, Norwood arranged for a private assistive technology evaluation by eTech. The report recommended that Student use his iPod Touch for all “communicative attempts” at school. Exhibits S-21, P-4.
On December 21, 2010, Mother attended Student’s holiday classroom party. She observed her son to be screaming, crying, biting his hands and generally out of control. During much of this time, Student was with his Mother, rather than with Norwood staff. Testimony of Mother, Venuto, Bailey; exhibits P-22.
Norwood’s written progress reports as of January 2011 reflect progress. The reports indicate that in expressive language, Student has become more consistent in his ability to use words, pictures and signs to have his needs met and to make requests, he is beginning to use two-word approximations (e.g., “Laura play”) and he has shown greater success imitating CVC word modeled by adults. In receptive language, he learned to use picture sequence schedules to follow multi-step directions, he has improved his ability to point to pictures when they are named, and he is beginning to understand concepts (e.g., big, little, same). In preschool readiness skills, the progress reports indicate that Student demonstrates emerging skills in his ability to complete a shape sorter and match identical objects to objects. With respect to social emotional skills, the progress reports indicate that Student is able to engage in at least three outdoor activities for at least 15 minutes, and he has emerging skills in the areas of playing purposefully with toys as they were designed, playing interactively with other children, and raising his hand to gain teacher attention to respond to a question or choose an activity. He made reported progress in his goals regarding sensory processing/motor planning, visual/fine motor skills, oral motor skills, and gross motor skills. Exhibits P-24, S-22, S-23, S-24, S-25.
By letter of February 6, 2011, Dr. Davis wrote that she again saw Student at the LADDERS program for a neurodevelopmental assessment and evaluation of current services. Dr. Davis opined that Student “has made no discernible developmental progress …. He essentially remains nonverbal with severe delays in expressive, receptive and pragmatic language, social interaction, pre-academic achievement and play ….” She reiterated her previous recommendations that Student be placed educationally so that his multiple needs can be met “fully and comprehensively”. Exhibits P-25, S-11.
Norwood obtained an assistive technology consultation on March 23, 2011 from Adaptech Consulting, which included observation at school. Exhibit S-3.
On April 16, 2011, Parents’ expert, Michael Dorsey, PhD, BCBA-D, issued his independent education evaluation, reflecting a review of records, home observation on February 9, 2011 and school observation on March 29, 201. Testimony of Dorsey; exhibit P-29.
Dr. Dorsey’s report concluded that Student should be placed within a full-time (30 hours per week), full year (with no more than five consecutive days away from educational services), out-of-district program based exclusively on ABA principles, combined with appropriate home-based services to assist in the generalization of educational success to his home and community settings. Dr. Dorsey opined that “to do otherwise, will likely result in severe injury to [Student], combined with the likelihood that he will never meet his potential educational/adaptive developmental milestones.” Testimony of Dorsey; exhibits P-29, S-10.
On the basis of his home assessment, Dr. Dorsey testified that of most concern is Student’s challenging behaviors at home, as reported by Mother. He expressed concern that if these behaviors cannot be brought under control quickly, it may be impossible for Student to continue to live safely at home, with the result that he may require a residential placement.
Dr. Dorsey testified that he recommended 20 hours per week of home-based services, delivered by an aide with sufficient expertise and training, and supervised by a consultant who should work occasionally with Student directly to ensure that what is recommended will actually be effective.
On April 22, 2011, Beacon ABA Associates conducted a behavioral assessment to determine, for purposes of Parents’ insurance coverage, Student’s need for home-based services. Testimony of Benavides; exhibit P-30.
Dr. Benavides testified that he observed in the home for two hours and also conducted an interview of Mother. He testified that he observed hand-mouthing, screaming and self-hitting. He concluded that Student has severe needs—for example, he lacks communication skills and needs 1:1 assistance to address most of his daily living needs. He testified that he recommended that, as a starting point, Student receive 20 hours per week of home-based services, and that this amount of services could be adjusted over time. He noted that this amount of services is predicated upon the severity of Student’s deficits and his behavior challenges. He explained that the home-based services would address all of Student’s home- and community-based deficit areas.
Dr. Benavides testified that of utmost importance is addressing Student’s challenging behaviors in the home and community because if this cannot be addressed, Student may require a residential placement. He explained that the second most important area to address is Student’s communication deficits. He noted that Student’s skills need to be taught and reinforced across environments.
On April 26 and 27, 2011, Norwood conducted a psychological assessment of Student. The examiner (Erika King, MS/CAGS, NCSP) concluded that Student demonstrated particular areas of weakness requiring remediation with respect to expressive language skills, daily living sills within the household setting, and maladaptive behaviors which appear to be present mostly in the home. Exhibit S-1.
Norwood conducted a home assessment on April 27, 2011. The evaluator (Katherine Hannon-Perera, MA, EdS, BCBA) noted in summary that at home, Student demonstrates a “high incidence of complicated behaviors all of which [Mother] reflects is stressful for the family.” Mother testified that when Norwood conducted the home assessment on April 27, 2011, her son was very upset, requiring her to hold her son and to block his behaviors during the visit, with the result that the Norwood assessors were not able to observe her son doing anything independently. Testimony of Mother; exhibits P-31, S-2.
In early May 2011, at Norwood’s request, Kevin Harkins, PhD, from the Behavioral Health Network, observed Student at school and conducted a records review, but did not issue a written report. Testimony of Harkins; exhibit S-47.
On May 11, 16, and 18, 2011, Dr. Castro of ICCD conducted a second neurodevelopmental assessment. Dr. Castro’s written report made recommendations for services and placement that were substantially the same as in the earlier ICCD assessment, except that it was recommended that ABA with DTT be utilized for approximately 15 to 20 hours per week of direct individualized, 1:1 instruction (which would include direct occupational therapy and speech-language services, as well as DTT instruction), a minimum of 15 hours per week of home-based services were recommended, and it was recommended that the first goal of Student’s IEP should be dedicated to monitoring and diminishing his “interfering behaviors”. Testimony of Castro; exhibit P-49.
Dr. Castro’s May 2011 evaluation found that Student was functioning at approximately 57% of developmental capacity. Dr. Castro’s use of these percentages of developmental capacity reflects the developmental age of the student divided by his chronological age, giving essentially an IQ score. (If a student’s developmental age were the same as his chronological age, his score would be 100%.) Testimony of Castro; exhibit P-49.
On May 16, 2011, at Norwood’s request, Robert Putnam, PhD, BCBA-D, observed Student for approximately one hour in his current program. He also spoke with Norwood staff, and he reviewed relevant records, including all exhibits in the instant dispute. He did not issue a written report. Dr. Putnam’s testimony generally supported the appropriateness of Norwood’s currently proposed IEP. However, in response to questions from the Hearing Officer, he made a number of specific recommendations that would increase the intensity and supervision of Norwood’s program. Dr. Putnam’s specific recommendations are set forth later in this Decision.
IV. Credentials and Credibility of the Parties’ Principal Expert Witnesses
· Rafael Castro, PhD, is the co-director of ICCD Partners, Inc., he has been a neuropsychologist since 1993, and he currently is also an Instructor at Harvard Medical School’s Department of Psychiatry. He has extensive experience conducting and overseeing neuropsychological evaluations of students on the Autism spectrum. He generally provided intelligent, nuanced and credible testimony that in several important respects guided my analysis. Testimony of Castro; exhibit P-41.
· Michael Dorsey, PhD, BCBA-D, is an experienced licensed psychologist who specializes in the use of ABA services with students on the Autism spectrum. He has had a number of academic appointments—for example, since 2007, he has been a professor of education and the director of the Institute for Behavioral Studies at Endicott College. He also has been a visiting scholar at Capella University since 2010. He generally provided intelligent and credible testimony that in several important respects guided my analysis; however, in several substantive areas, I did not find his testimony to be reliable or persuasive. Testimony of Dorsey; exhibit P-43.
· Nathan Doty, PhD, is completing a two-year postdoctoral fellowship in child clinical psychology at Mass. General Hospital/Harvard Medical School. He has conducted an extensive number of neuropsychological evaluations on children on the Autism spectrum.
Dr. Doty’s testimony was intelligent, reliable and credible, and demonstrated a high level of candor, balance and directness. I found his testimony to be particularly useful regarding Student’s language deficits. Testimony of Doty; exhibit P-42.
· Robert Putnam, PhD, BCBA-D, is the Senior Vice President of Consultation at the May Institute since 2003. In this capacity, Dr. Putnam oversees the clinical delivery of consultation and school support service to over 100 school districts in Massachusetts and across the country. He also has (and has had) a variety of other clinical and academic appointments over his career of more than 30 years. He is a licensed psychologist who specializes in addressing the educational needs of students on the Autism spectrum and, in particular, the behavioral challenges of these students. Testimony of Putnam; exhibit S-52.
Dr. Putnam has substantial breadth and depth of experience regarding students on the Autism spectrum and how their needs should be addressed by school districts. He provided credible, careful, well-considered professional opinions. And, as will become clear over the course of the instant Decision, Dr. Putnam, who was called as Norwood’s principal expert witness, sometimes departed from Norwood’s position at hearing, demonstrating his willingness to provide testimony consistent with his professional opinion regarding what is needed to address Student’s multiple deficits. In general, I found his testimony to be particularly balanced and reliable.
· Kevin Harkins, PhD, is employed as a consultant at the Behavioral Health Network and was called by Norwood as an expert witness. Although I credit his ability to observe and report what occurred within the classroom during his observation, I do not find probative his opinion testimony and therefore do not consider it for purposes of this Decision. This is because Dr. Harkins has not worked with or assessed any children on the Autism spectrum during the past three years (other than Student), and he has limited experience assessing Autistic children over the course of his career; the vast majority of that experience involved administering test protocols rather than having responsibility for the evaluation. This stands in contrast to the other expert consultants who testified in this dispute, and who each have extensive and impressive credentials evaluating children on the Autism spectrum. Testimony of Harkins; exhibit S-47.
A. Legal Standards
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the Massachusetts special education statute.3
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”4 FAPE must be provided in the least restrictive environment.5 And, numerous courts have recognized that Congress created a strong preference in favor of a student being included within regular education classes or activities, often with modifications, supplemental services or supports.6
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.7 An IEP must be custom-tailored to address Student’s “unique” educational needs.8
The “IEP … must target all of a child’s special needs, whether they be academic, physical, emotional, or social”. A review of the IEP for adequacy need not “consider each unique need in isolation and make a separate finding regarding … each and every identified area”. Rather, the services and placement in the IEP should be considered “as a unitary whole, taking those special needs into proper account.”9
As a general rule, FAPE mandates proposed special education and related services that are “reasonably calculated to enable [Student] to receive educational benefits.”10 This “does not imply that a disabled child is entitled to the maximum educational benefit possible.”11 Rather, “[a]n IEP need only supply some educational benefit, not an optimal or an ideal level of educational benefit, in order to survive judicial scrutiny.”12 In sum, “[a]ppropriateness and adequacy are terms of moderation.”13
At the same time, the Supreme Court on multiple occasions has referenced a FAPE standard that a student is entitled to “meaningful access” to his or her education.14 Similarly, the First Circuit and several Massachusetts federal district court judges,15 as well as other Circuit courts16 have utilized a standard of a “meaningful educational benefit”.
In the application of these standards, federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child”17 because “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”.18 Thus, in sum, the “IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue.”19
FAPE is defined by the IDEA to include state educational standards,20 which may exceed the federal floor .21 Massachusetts regulatory standards require that Student’s IEP Team “include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”22 Similarly, the Massachusetts Department of Elementary and Secondary Education-mandated IEP form requires a school district to include within each IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including, communication, behavior, language, and social/emotional needs.23 Massachusetts statutory standards further require that special education services be “ designed to develop the [student’s] educational potential” .24 And, the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”25 Thus, in sum, Massachusetts standards require that a proposed IEP include specialized instruction and related services designed to enable Student to make effective progress and develop his or her individual educational potential.
In Massachusetts, there are additional standards relevant to services for children on the Autism spectrum. Chapter 57 of the Acts of 2006, entitled An Act To Address The Special Education Needs Of Children With Autism Spectrum Disorders and amending M.G.L. c. 71B, § 3, provides in relevant part:
Whenever an evaluation indicates that a child has a disability on the autism spectrum, … the Individualized Education Program (IEP) team … shall consider and shall specifically address the following: the verbal and nonverbal communication needs of the child; the need to develop social interaction skills and proficiencies; … and other needs resulting from the child’s disability that impact progress in the general curriculum, including social … development.
In response to this statute, the Massachusetts Department of Elementary and Secondary Education (DESE) issued Technical Assistance Advisory SPED 2007-1: Autism Spectrum Disorder ( Advisory ) on August 25, 2006, “ to provide guidance on the ways that the Individual Education Program (IEP) Team may effectively frame complete and thorough discussions of the strengths and needs of a student with Autism Spectrum Disorder (ASD).”26 The Advisory notes that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP” and notes the relevance of “the student’s ability to use and understand non-verbal communication (e.g., eye gaze, facial expression, gesture).”27
General FAPE standards further provide that, in the event that a school district fails to provide FAPE, a parent may utilize private services and seek reimbursement as equitable relief.28 In order to obtain reimbursement, the parents must show that the private services were appropriate and the public schools’ proposed services were inappropriate.29
In the instant dispute, it is not disputed that Norwood has the burden of persuasion regarding reimbursement of Parents’ independent education evaluations, and that Parents have the burden of persuasion on all other issues.30
B. Norwood’s Currently Proposed IEP
There are a number of discrete areas of Norwood’s currently proposed IEP to be considered. I will begin with Student’s behaviors (first in school and then in the home and community), then will consider communication skills, followed by other deficit areas. This will then lead to a discussion of appropriate placement. I will follow this with a consideration of home-based services and finally will discuss relief (including prospective services and placement) relative to all aspects of the currently proposed IEP.
· Student’s behaviors : In my consideration of the appropriateness of Norwood’s currently-proposed IEP, I begin with an area of central concern, which is Student’s behaviors at school, at home and in the community. Parents’ three principal experts (Dr. Castro, Dr. Dorsey, Dr. Doty) and Norwood’s principal expert (Dr. Putnam) agreed as to the critical importance of this issue.
As discussed earlier in this Decision, on November 4, 2009, the May Institute conducted a functional behavior assessment to determine the cause and function of Student’s maladaptive behaviors. May Center then developed a behavior support plan that includes strategies for reducing behaviors and developing replacement behaviors. Norwood has been implementing this behavior plan. Testimony of Hannon-Perera; exhibit S-8.
With respect to his behavior in school, Student has made substantial progress from the 2009-2010 school year to the 2010-2011 school year. Dr. Putnam reviewed data with respect to Student’s in-school behavior during these two school years, and found noteworthy improvement. He explained through use of graphs how Student’s occasional challenging behaviors during the 2009-2010 school year have been reduced to near zero incidents of behavior difficulties during the 2010-2011 school year. More specifically, he found that incidents of biting were approximately 2.2 per day in the 2009-2010 school year and were reduced to approximately .2 per day in the 2010-2011 school year; incidents of throwing were approximately 4.3 per day in the 2009-2010 school year and were reduced to approximately .2 per day in the 2010-2011 school year; incidents of head banging were approximately .6 per day in the 2009-2010 school year and were reduced to less than .1 per day in the 2010-2011 school year. Testimony of Putnam; exhibit S-32.
As this data reflects, Student has been nearly behavior-free at school during the 2010-2011 school year, with several relatively minor exceptions. The testimony of Student’s classroom teacher and aide, as well as the testimony of others who work with Student at school, was virtually undisputed that during the 2010-2011 school year, Student occasionally becomes excited and frustrated in the classroom, but he does not generally exhibit challenging or severe behavior. For example, Ms. Venuto and Ms. Bailey have not observed any head-butting, head-banging, self-induced vomiting, or pulling out his G-tube. In the classroom, Student may occasionally throw something (such as a piece of a game), but it is generally possible to re-direct Student at these times. He also sometimes puts his hands in his mouth out of excitement but does not bite down sufficiently to leave teeth marks. Testimony of Bailey, Venuto.
Although Student has a behavior support plan, he does not, as a general rule, exhibit any of the targeted behaviors at school. Consequently, the behavior interventions within the plan are not implemented at school. Testimony of Hannon-Perera, Bailey.
The one notable exception was a spike in several challenging behaviors in December 2010 and January 2011. Ms. Hannon-Perera testified that this appeared to be caused at that time by Student’s increased interest in other children, with the result that it was more difficult to keep Student on task. Ms. Hannon-Perera took this as an opportunity to introduce Student to more skill tasks related to interpersonal relations and play skills. The behavioral data indicate that Ms. Hannon-Perera and the Norwood staff were able to quickly eliminate these challenging behaviors. Testimony of Hannon-Perera, Putnam.
Over the course of the 2010-2011 school year, there was a single injury to Student related to his behavior—this occurred on January 24, 2011. He had his hand in his mouth and out of excitement, he pulled his finger down across his teeth, injuring himself by taking a small portion of flesh out of his finger, and thus requiring medical attention. However, the undisputed testimony was that this incident did not involve Student biting himself and appeared to be simply an accident. This was the only time that Student needed to see the school nurse during this school year. Testimony of Venuto, Bailey, Ryan; exhibits P-10, S-39.
Mother provided evidence to the contrary, supporting the position that Student has been continuing to have challenging behaviors at school. On December 21, 2010, Mother attended Student’s holiday classroom party. She observed her son to be screaming, crying, biting his hands and generally out of control. However, during much of this time, Student was with his Mother, rather than with Norwood staff. As will be discussed below, it is apparent that when Student is with Mother, his behavior is substantially different than when he is at school (without Mother) or when he is with school staff (but not Mother) at home. Testimony of Mother, Venuto, Bailey; exhibits P-22.
On October 14, 2010, Mother observed Student at school. Mother’s notes indicate that Student was frequently biting his hand (e.g., 12 times during circle time, 19 times during speech therapy and four times during ABA therapy) and that he threw objects three times during ABA services. Testimony of Mother; exhibit P-15.
There was a general dispute in this case as to whether Student was mouthing his fingers and hands, or actually biting his fingers and hands. At least with respect to Student’s conduct in school, the weight of the evidence was that Student did not demonstrate any cuts or tooth marks that would indicate biting, and I find that that what Mother observed was likely hand-mouthing, which Norwood witnesses have reported frequently happening in school, particularly when Student is excited. I do not consider Student’s hand-mouthing to be a behavior that implicates his education at this time. Testimony of Venuto, Bailey.31
Dr. Castro and Dr. Dorsey testified to the contrary. Dr. Castro testified that during the May 2011 evaluation, he observed a significant amount of head-banging on the table and biting fingers (putting all of his fingers into his mouth and biting), which he found to be consistent with Parents’ report of aberrant behaviors as well reports of service providers. Dr. Castro went so far as recommending that in order to address Student’s behavior appropriately, he should be educated within a substantially-separate placement that is behaviorally driven, with a behaviorist on site and with more intensive services than he had previously recommended, at least until the behaviors come under control and Student is able to make gains consistent with previously demonstrated gains.
Dr. Dorsey was similarly concerned about Student’s behavior and agreed with Dr. Castro’s recommendation for a behaviorally-oriented placement. In contrast, Dr. Doty did not make assumptions about Student’s behavior in school and he did not concur with this placement recommendation. He testified that he would not generally recommend a behaviorally-oriented school program for Student since he is not likely to respond well to this setting.
Dr. Castro and Dr. Dorsey are experienced, sophisticated and skilled evaluators who generally testified in a credible and persuasive manner. Although I found their analysis and recommendations to be a reliable guide for parts of my decision-making, I find that they each fundamentally misunderstood Student’s behavior at school, as well as in the home when Mother is not present. These two experts did not talk to Norwood staff about Student’s behaviors and instead relied upon Mother’s report and documents in the record (discussed above), which give the misleading impression that Student may have significant behavioral difficulties in school. These experts also appeared to be unaware of the behavioral progress that Student had made from one school year to the next. Failure to talk with Norwood staff is not by itself fatal to the credibility of their report and testimony, but when this omission leads to a misunderstanding of a central premise of their analysis and recommendations, then the reliability of Dr. Castro’s and Dr. Dorsey’s testimony and report relative to Student’s behaviors at school is substantially diminished. For these reasons, I give no probative weight to the recommendations of Dr. Castro and Dr. Dorsey relevant to the services and placement that they believed were needed to address Student’s behaviors at school.
I conclude that over the 2010-2011 school year, there have been a relatively few behavior incidents at school, and these incidents have been rapidly decreasing, indicating that Norwood understands how to address Student’s challenging behaviors at school and is effective at doing so. I agree with Dr. Putnam that Norwood’s success in addressing Student’s behavior during the 2010-2011 school year reflects noteworthy progress and that Student’s behaviors at school are no longer a significant concern.32
Student’s behaviors within the home and community are entirely different than at school. Mother’s undisputed testimony clearly described the increasingly disruptive, dangerous and out-of-control behavior of her son at home. Mother testified that her son’s challenging behaviors started in the spring of 2009 and have gradually gotten significantly worse. She noted that by August 2009, her son was head-banging, biting his hands, biting others, and throwing toys. Occasionally, he also pulls out his G-tube or engages in self-induced vomiting. These behaviors were occurring from seven to ten times per day at that time. Mother testified that by the end of the summer of 2010, Student was exhibiting 40 to 50 challenging behaviors per day. Testimony of Mother.
Mother testified that at the time of the hearing in the instant dispute, Student’s behaviors are now even more frequent, more intense and more dangerous. She explained that during a weekend day, Student may exhibit as many as 200 challenging behaviors per day. She explained that now Student will throw practically anything, including a fork and large toys. When she picks up her son, he sometimes will slap her or head-butt her, and he has bitten her other son. Mother testified that his behaviors are now so out of control that it is difficult to take him any place in the community. Testimony of Mother.
Ms. Hannon-Perera testified that from her conversation with Mother in September 2010, Ms. Hannon-Perera understood Student’s behavior support plan to be working at home. However, in January 2011, Mother made clear to her that Student’s challenging behavior at home was not being remediated through the behavior support plan. Testimony of Mother, Hannon-Perera.
Ms. Hannon-Perera then reviewed this situation and determined that Mother was not following the behavior support plan at home—that is, Student would display a targeted behavior, but Mother was not comfortable implementing the plan in response to the behavior. This is because the plan called for “ignoring” the behavior, which Mother did not want (or was unable) to do. Ms. Hannon-Perera testified that “ignoring” the behavior does not mean allowing Student or another person to be unsafe, and therefore a blocking intervention, for example, may be necessary. But, Ms. Hannon-Perera testified that the behavior plan recognizes that Student is engaging in his challenging behaviors for purposes of gaining attention, and that the “ignoring” response is necessary to provide Student with as little attention as possible in response to the targeted behavior. She explained that Mother’s responses to the targeted behaviors effectively provided Student with the attention he sought from his behaviors and thereby have been reinforcing his challenging behaviors. Because Student’s behavior has been ingrained over time, it is likely to take a period of time to break his behavioral habits. Testimony of Hanno-Perera, Mother.
In her testimony, Ms. Hannon-Perera took the position that there would be little purpose in increasing or otherwise changing the home-based services unless and until Mother is able to begin to implement the behavior support plan by “ignoring” her son’s behavior. She explained that the behavior support plan is clear throughout that Student’s behavior is attention-seeking and until Mother can avoid giving him attention as a result of his behavior, there is nothing more that can be done by Norwood to address Student’s behavior at home. She noted that the behavior support plan is effective when followed (as demonstrated by its success in school and at home when Mother is not present) and need not be changed. Testimony of Hanno-Perera.
Ms. Hannon-Perera’s position is supported by the undisputed evidence that there is a marked distinction between the home behaviors when Mother is present and when she is not. The unrebutted testimony of the home-based services provider (Ms. McAlister) was that when she is in the home with Student, he exhibits no self-injurious or other challenging behavior when she is alone with Student. Ms. McAlister testified further, however, that when Mother accompanies her with Student, he exhibits head-butting and head-banging. Ms. McAlister testified that Mother is not able to ignore Student’s behaviors, which is necessary to implement his behavior plan. It is therefore apparent that the challenging behaviors are resulting from the relationship and interaction between Mother and Student. Testimony of McAlister
For the reasons explained below, I find Norwood’s position as reflected in Ms. Hannon-Perera’s testimony (that nothing more needs or should be done by Norwood since it is the responsibility of Mother to implement a behavior plan that has been effective in other contexts and with other people) to be unacceptable and a violation of Norwood’s FAPE responsibilities.
It was not disputed by Norwood’s principal expert (Dr. Putnam) that Norwood has a responsibility to address Student’s behavior in the home. Dr. Putnam agreed with Parents’ experts that for Student to make effective educational progress, he must learn to generalize skills in the home and community, and that Student’s current behavior in the home precludes that from occurring. Testimony of Putnam, Castro, Dorsey.
Failure to appropriately address Student’s behavior is likely to have very substantial, negative implications for Student and his educational development. Student is still quite young (five years old), yet it is undisputed that his behaviors in the home have now become entrenched, making them more difficult to remediate. There is no doubt that the level and intensity of Student’s behavior in the home and community, as attested to by Mother, severely limits his learning opportunities and experiences. Moreover, if these behaviors cannot be brought under control relatively quickly, it may be impossible for Student to continue to live safely at home, with the result that he may require a residential placement. Testimony of Dorsey, Castro.
In his testimony, Dr. Putnam stated that he did not doubt the accuracy of Mother’s reports of the difficulty and intensity of Student’s behavior in the home. He further testified that clearly, Mother is highly motivated to remediate these behaviors, and he agreed as to the critical importance of Norwood’s assisting Mother to do so. To his credit, Dr. Putnam did not simply place responsibility on Mother and argue the appropriateness of Norwood’s behavioral support plan and its efforts, to date, to work with Mother around these issues. Rather, Dr. Putnam testified that he was confident that with additional or different services, Norwood could find a way to assist Mother to work more effectively with Student’s behaviors.
Dr. Putnam recommended that Norwood obtain additional advice and assistance through a doctoral level consultant with expertise in challenging behaviors being exhibited at home by someone with Student’s educational profile. The consultant should review this situation and help Norwood find new ways to work effectively and cooperatively with Parents to seek to resolve the current dilemma regarding Student’s increasingly out-of-control behaviors at home. In short, Dr. Putnam made clear that, in his professional opinion, it is not acceptable simply to let the current situation continue with Mother being unable to implement the behavior plan used by Norwood.33
I also note that Norwood’s current IEP fails to include any behavioral goals. No doubt this needs to be changed in light of the above discussion. However, at this juncture, it is not possible to determine the specific behavioral goals (or benchmarks under those goals). There will need to be an IEP Team meeting for purposes of considering the recommendations of the behavioral consultant referenced above, with input from all Team members, including Parents and any of their consultants.
I found Dr. Putnam to provide the most comprehensive and useful recommendations of any witness with respect to how Student’s home behavior may be addressed effectively. Accordingly, I adopt those recommendations, which are discussed below as part of the more general subject area of home-based services; relief regarding home-based services is included in a separate section, below, entitled “ relief with respect to the currently proposed IEP ”.
· Student’s communication skills : The critical importance of appropriately addressing Student’s severe language deficits is not disputed. Without better developed language, Student will likely continue to struggle to have his needs and desires understood and met; and his ability to learn will continue to be severely compromised. Moreover, this limitation may lead to increased behavioral difficulties that can be extremely disruptive to Student’s education. As explained in Dr. Doty’s unrebutted testimony and report, not only is development of language skills fundamental to Student’s education, but also Student’s early development of language skills is the single best predictor of later functioning, and it is therefore critical to his overall educational development. Similarly, Dr. Castro testified that scores regarding cognition and language are the most predictive of Student’s intellectual capacity, and these scores eventually will translate into Student’s verbal and non-verbal IQ. Testimony of Doty, Castro; exhibits P-12, P-14, S-7 (report from the May 2010 TEC functional behavior assessment: “It can not be stated clearly enough the importance of communication to [Student’s] behavioral repertoire.”), S-14.
Similarly, Norwood’s principal expert (Dr. Putnam) testified that Student’s behavior and communication skills are critical to Student’s educational development. This is also in accord with Massachusetts statute and DESE advisory, discussed above, which explains that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP”. Testimony of Putnam; DESE Technical Assistance Advisory SPED 2007-1: Autism Spectrum Disorder.
It is not disputed that Student presents with severe limitations in both receptive and expressive language. Dr. Doty testified persuasively, and it is not disputed, that Student’s current communication vehicles do not provide Student with a consistent functional way to express himself and communicate his wants and needs. Typically, Student communicates verbally in class even though he has severely limited expressive language. Occasionally, he uses his iPod Touch, and he also uses gestures and sign language. Testimony of Bailey, Venuto. Similarly, Mother testified that at home her son has some, limited speech but is difficult to understand. She explained that his receptive language is more advanced than receptive language—for example, Student understands if Mother gives him a choice, such as whether he wants to take a bath or whether he wants to watch one of his preferred TV shows. Testimony of Mother.
In considering the appropriateness of the current IEP with respect to communication (as well as with respect to other educational areas addressed by Norwood and discussed later in this Decision), I rely principally on Student’s progress and development during the 2010-2011 school year. One may reasonably expect, and it is not disputed, that whatever progress was made in the 2010-2011 school year would likely continue in the next school year if Norwood were to implement its currently-proposed IEP. Therefore, to a large extent, the appropriateness of this IEP will be determined on the basis of whether Student has been achieving sufficient progress during the 2010-2011 school year.
Predictably, Student has greater difficulty with expressive language because of his motoric limitations, and Student’s receptive language skills will therefore likely develop at a faster rate than his expressive language skills. Yet, Student’s progress in the area of receptive language skills has been very slow. There was no disagreement that standardized testing in May 2011 revealed that over a two year period, Student’s receptive language skills were at the 26 to 27 month level, reflecting a gain in skills of roughly six months over a 24 month period since the time he was assessed at three and a half years old. (As Dr. Castro noted, these findings are consistent with Dr. Doty’s test scores.) Dr. Castro testified that this gain was substantially less than the rate of gain in receptive language skills between the testing done at 29 months and the testing done in April/May 2009. Similarly, Norwood’s ABLLS charts and written progress reports (discussed above in the Facts section of this Decision) reflect progress at a very slow pace in those areas focused on by Norwood—that is, receptive language, vocal imitation, and spontaneous vocalization skills. Dr. Castro expressed concern that although Student was making progress over the past two years, the rate of progress has decreased over the past two years. Testimony of Castro, Doty, Putnam.
Norwood, however, took the position that Student’s very slow rate of progress in language skills is appropriate. Dr. Putnam found six months progress over the course of two years to be appropriate in light of Student’s intelligence and autism deficits that limit communication. For reasons discussed below, I found Dr. Putnam’s brief testimony in this area to reflect a too-limited view of Student’s potential to learn.
Dr. Doty testified, and it is not disputed, that Student’s potential to learn is best indicated by his intellectual ability, which is most accurately reflected by his non-verbal reasoning test results since these results are not affected by Student’s motoric and other non-cognitive limitations. He noted that Student tested in the low average range in non-verbal reasoning, indicating a relative strength in higher reasoning skills, in marked contrast to his severe language deficits. To Dr. Doty, this indicates that Student’s demonstrated receptive and expressive communication abilities are not even close to his potential to learn in this area. Similarly, Dr. Castro concluded that Student’s rate of progress in receptive language skills over the past two years reflects a substantially lower rate of progress in this area than would be expected based upon Student’s progress in this area during an earlier time period. He concluded that Student’s services in this area have not been sufficient.
I find this evidence to be persuasive that Norwood’s services in the area of receptive and expressive language are not reasonably calculated to allow Student to make effective or meaningful progress in this critical area in accordance with his educational potential and therefore do not comply with federal FAPE standards. Similarly, I further find that this evidence demonstrates that the services provided in this area are not likely to develop Student’s educational potential as required under Massachusetts standards discussed above.
Dr. Doty recommended 1:1 speech-language services on a daily basis. Although Dr. Doty is not specifically trained as a speech-language therapist, he has substantial knowledge and expertise in this area, and his recommendation was credible and persuasive.34 Consequently, I find that the currently proposed IEP should be amended to increase the speech-language sessions from four days per week to five days per week.
Dr. Doty also recommended that assistive and augmentative communication be provided on a consistent basis. He explained that because of Student’s oral and motoric limitations, means of communication should be explored and utilized that are not impeded by these limitations. I find (and there was no contrary evidence) that this recommendation is critical to Student’s educational development. Testimony of Doty; exhibits P-14, S-14.
It is of significant concern that Norwood has not developed or implemented any consistently useful assistive technology for Student’s communication. The iPod Touch has become Student’s primary form of communication assisted by technology (principally through Mother’s efforts), but Norwood has not fully embraced this technology, this device has had limited usefulness for Student at school, and it may or may not be the appropriate communication device to rely upon prospectively.35 Norwood has been markedly deficient in this critical area.36
In light of the history of Student’s not being provided effective methods of assistive and augmentative communication and with no appropriate plans proposed for doing so, I find that in order to implement Dr. Doty’s recommendation, Norwood must provide further evaluation and consultation in this area in order for Student to receive FAPE and in order to develop his educational potential.
Dr. Putnam also recommended more language-based goals, including more goals that focus around the development of communication skills, and I adopt this recommendation.
The details of the relief regarding Student’s communication deficits are set forth below in the section, below, entitled “ relief with respect to the currently proposed IEP. ”
· Other areas addressed by Student’s IEP : As discussed above, it is not disputed that the best indicator of the appropriateness of Student’s IEP is the extent of his progress during the 2010-2011 school year. Norwood takes the position that Student has been making effective and meaningful progress in the other areas addressed by his IEP during the 2010-2011 school year and is therefore likely to continue to make sufficient progress under its currently-proposed IEP. Parents and their experts disagree that sufficient progress is being made, and they seek not only a significant increase of services, but also a change of educational setting so that Student would be placed within a substantially-separate classroom.
It is not disputed that Student has made gains in his fine motor and gross motor skills, including oral motor movements necessary for speech. He is learning how to wash his hands and use zippers, and he can take off his shoes and socks with minimal assistance. He has improved in his overall ability to understand and participate in the routines of an integrated classroom, although he remains highly dependent upon his one-to-one aide. Recently, he has also become more interested in and more able to socially engage with his peers, including reciprocal greetings and play. Particularly when compared to how Student presented when he first began school with Norwood in 2008, Student has changed from a young toddler who was only learning how to walk, to his current presentation as a preschooler. Testimony of Bailey, Stoddard, McCarthy, Hayden-Sloane, Venuto, Harkins.
Student’s academic and pre-academic skills have also improved. These improvements are reflected primarily within charts prepared as part of Norwood’s use of the Assessment of Basic Language and Learning Skills – Revised (ABLLS). Student’s ABA program book uses the ABLLS as a curriculum guide and on-going reference. Student is taught skills under the ABLLS in the following domains: cooperation and reinforcer effectiveness, visual performance, receptive language, vocal imitation, requests, labeling, intraverbal, and spontaneous vocalization. Testimony of Hannon-Perera; exhibits S-26, S-27.
ABLLS breaks down skills (called “tasks”) into smaller components in order to teach small, incremental skills and in order to tease out Student’s strengths and weaknesses and thereby determine what should be taught. Within the ABLLS, the skills are progressive, building on each other, with Student moving to the next skill level after mastery of the previous skill level. Testimony of Hannon-Perera; exhibit S-27.
Student’s progress, as reflected on the ABBLS charts, was the subject of expert testimony by Dr. Putnam, Dr. Dorsey and Dr. Castro. Of the three experts, Dr. Putnam provided the most comprehensive analysis of this information, and he highlighted his testimony with charts that illustrated more specifically Student’s progress. Testimony of Hannon-Perera; exhibits S-26, S-27.
Dr. Putnam reviewed exhibit S-56, which graphs progress made in 82 skill set areas. Each of the skill sets was worked on during the 2010-2011 school year. The exhibit reflects that during the 2010-2011 school year, Student attained mastery in 49 of the skill set areas. Dr. Putnam testified that the data from the ABLLS demonstrate consistent progress in the areas being tested. Testimony of Putnam; exhibit S-56.37
Parents correctly point out, however, that a number of the skill sets worked on during the 2010-2011 school year, according to Norwood’s data, had been worked on during the previous school year and some had even been mastered during the previous school year. Dr. Putnam testified that the difficulty of the skill set may have been increased from one school year to the next, thus accounting for the need that it be worked on further even after mastery. However, this testimony was simply speculation. Also, as discussed above, many of the discrete skill sets reflected within the ABLLS are quite limited in scope. Testimony of Putnam.
Also, a review of the ABLLS information for Student reveals that what is being worked on (and measured by the ABLLS charts) are discrete skill areas, sometimes reflecting only one small part of what might be considered a progression of skills or tasks—for example, the skill of matching objects to objects, then the skill of matching objects to pictures. Some of the measured skill areas are also very limited in scope—for example, looking to the instructor for instruction and touching parts of items upon request. And, some of the measured skills are similar in scope—for example, labeling pieces of clothing and labeling body parts. Dr. Castro generally characterized Student’s areas of progress to be “very narrow and splintered” . Testimony of Castro.
As another indicator of Student’s progress, Dr. Putnam reviewed Student’s progress in the acquisition of benchmarks delineated in his IEP for the period 10/1/09 to 10/1/10. Norwood continued to work off the goals and objectives (benchmarks) in this IEP during the 2010-2011 school year because Parents never fully accepted any subsequent IEP and specifically rejected the goals and objectives in the currently proposed IEP until Student had mastered the goals and objectives within the 10/1/09 to 10/1/10 IEP. Dr. Putnam reviewed a chart prepared by Parents with respect to progress made regarding these benchmarks. Mother testified that she prepared this chart on the basis of progress reported during Team meetings, information from letters received from services providers, and the January 31, 2011 progress reports by Norwood staff. On the basis of his review of this document, Dr. Putnam concluded that as of 11/8/00, Student had met approximately 44% of the benchmarks; as of 12/7/10, he had met approximately 56% of the benchmarks; and by 1/31/11, he had met approximately 78% of the benchmarks. Dr. Putnam found this to reflect that Student had achieved progress. The progress noted on Norwood’s written progress reports with respect to IEP goals similarly reflects that Student had achieved progress. This progress occurred even though Student missed approximately 25% of school days due to absences (which likely impacted upon his progress). Testimony of Putnam, Mother; exhibit P-19. See Facts, part III D (discussing written progress reports).
However, as Dr. Dorsey explained in his testimony, many of the goals, as well as many of the benchmarks, from one IEP to the next are identical or substantially similar. I find that, as with the progress reflected within the ABLLS, the progress noted through mastery of IEP goals and objectives is at a very slow pace .38
I find that Student is making progress on his goals and objectives, but that the repetition of goals and objectives, the limited number of objectives, and the narrow scope of many of the tasks mastered reflect a very slow rate of progress. Dr. Castro was persuasive that this very slow rate of progress is causing Student to lose ground compared to his peers. Whether or not this progress is legally sufficient depends, to a large extent, on one’s view of Student’s potential to learn. As discussed above in part V A, progress need not maximize Student’s educational development, but it must be effective or meaningful within the context of his educational potential. And, importantly, his progress must satisfy the additional Massachusetts standard, also discussed above in part V A, of developing Student’s educational potential.
Student’s potential to learn was discussed above (see section in this part regarding Student’s communication deficits). In addition, Student is at the upper end of a so-called “window of opportunity” in which children with his diagnosis have the best opportunity to make progress. There was no dispute among the parties’ experts regarding the relevance and importance of providing appropriately intensive services to Student during this time period because services at this time will set the course of Student’s continuing development. Testimony of Doty, Dorsey, Putnam.39
The relevance of Student’s “window of opportunity” to the question of what services are appropriate in the instant dispute is demonstrated by Dr. Putnam’s testimony. As discussed above, Dr. Putnam testified that Student appeared to be making meaningful progress within Norwood’s educational program, particularly as reflected in his reduction of behavior, the ABLLS data, and the accomplishment of IEP goals and objectives. However, when Dr. Putnam was asked by the Hearing Officer whether he was satisfied with the appropriateness of Norwood’s proposed services for the 2011-2012 school year within the context of Student’s “window of opportunity”, Dr. Putnam responded by recommending additional IEP services to increase the intensity and effectiveness of Student’s educational program.
Specifically, Dr. Putnam testified that he would recommend that Student’s 1:1 ABA/DTT services be increased from ten hours per week to 15 hours per week. In addition, he recommended that Norwood bring in a doctoral level BCBA for purposes of consultation.40 He suggested that this consultation be “front-loaded” so that it would begin with six hours per week of consultation for several weeks, and that during that time, decisions would be made as to the timing of reduction of the consultation services. Dr. Putnam envisioned that the consultation services would be gradually reduced over time to one hour per week, and then maintained at that level. Testimony of Putnam.
It is noteworthy that the intensity of 1:1 ABA/DTT services proposed by Dr. Putnam is substantially the same as that proposed by Dr. Castro. In his May 2011 evaluation report, Dr. Castro made the following recommendation:
[Student] requires a program that consistently utilizes behavioral principles following an Applied Behavioral Analysis (ABA), with Discrete Trial Teaching (DTT) being the main component of his intervention, but also inclusive of other ABA methodology, for the acquisition, maintenance, and generalization of skills, for approximately 15 to 20 hours of direct, individualize [sic], one-to-one instruction.
Exhibit P-49, page 8. In his testimony, Dr. Castro recommended 20 hours of direct, individualized, one-to-one instruction, but he clarified that 20 hours could include not only the time spent on ABA/DTT, but also related services that are provided on a 1:1 basis. Student’s currently proposed IEP calls for five hours of related services. Testimony of Castro; exhibits P-18, S-19.
Dr. Doty and Dr. Dorsey made somewhat different recommendations. Dr. Doty recommended all-day, year-round instruction in a therapeutic school setting for children with Student’s profile, with the assistance of a 1:1 aide and ABA therapy. He testified that he recommended at least 25 hours of ABA services per week, but it was unclear whether he was referring to 25 hours of individualized ABA/DTT services or was speaking more generally to the application of ABA principles. Dr. Dorsey recommended a full-time, five-day per week program of 30 hours per week, with the program based exclusively on ABA principles. He added that Student’s program should initially be based exclusively on a 1:1 DTT model. Dr. Dorsey recommended that these services be provided within a substantially-separate classroom.
Dr. Putnam did not disagree that Student’s entire program should be based upon ABA principles and should be a full-time program, which for the 2011-2012 school year would be 27.5 hours per week in the proposed integrated kindergarten classroom. There is also no dispute that Student needs a 1:1 dedicated aide. Thus, Norwood’s proposed program of 27.5 hours, if appropriately structured on ABA principles, would appear to fall evenly between the hours recommended by Dr. Dorsey and those recommended by Dr. Doty, and would appear to be consistent with Dr. Castro’s testimony and report. The principal disagreement between the parties’ experts appears to have less to do with the intensity of 1:1 services and amount of ABA/DTT services, and more to do with whether the placement can provide a program structured on ABA principles. This topic will be addressed below in the section of this Decision entitled “ Student’s placement ”. Testimony of Doty, Dorsey, Castro, Putnam; exhibits S-14, P-14 (page 10) and S-10, P-29 (page 14).
For these reasons, I am persuaded that Norwood’s proposed services, as amended by changes recommended by Dr. Putnam, are appropriate for purposes of addressing the components of the IEP discussed in this section of the Decision.
The details of the relief regarding these parts of the IEP is set forth below in the section entitled “ relief with respect to the currently proposed IEP. ”
· Student’s placement: A principal disagreement is whether Norwood’s placement during the previous school year and its proposed placement for the next school year are appropriate. Dr. Castro, Dr. Dorsey and Dr. Doty recommended a substantially-separate year-round program, while Dr. Putnam found that an integrated model, with breaks of several weeks during the summer, would be appropriate.
Of the principal experts in this case, only Dr. Dorsey and Dr. Putnam actually observed Student’s integrated classrooms. I therefore give additional weight to their testimony regarding this issue.
Dr. Dorsey observed Student at school on March 29, 2011. He found Student’s classroom to be quite noisy and somewhat distracting, making it difficult for Student to focus on learning opportunities in the classroom. He opined that this classroom would be problematic for any student on the Autism spectrum. Dr. Dorsey testified that he did not observe any contemporaneous data collection by Student’s aide even though he observed significant events (e.g., social interactions) that he believed warranted data collection. He testified that he did not observe an organized teaching approach (with predicable forethought and structure) for Student, and concluded that Student was moving from one area to another within the classroom and engaging in activities, without there being an individualized education program. He also concluded that the size of the class (14 children) was too large for Student.
Dr. Dorsey testified that he observed some ABA techniques being used with Student in the classroom, but that the program was deficient in not being consistently structured with the use of ABA principles throughout the school day. He explained that ABA principles are the best approach for teaching a student on the Autism spectrum. Based upon his observations, Dr. Dorsey also expressed concerns as to whether Norwood was implementing an appropriate behavior support plan to address Student’s challenging behaviors at school.
Dr. Dorsey testified that a review of the resume of Student’s 1:1 aide led him to the conclusion that the aide was not sufficiently qualified through training to work with Student as independently as he observed.
On March 29, 2011, Dr. Dorsey also observed Norwood’s proposed kindergarten program for Student for the 2011-2012 school year. Dr. Dorsey testified that this integrated program is not based on ABA principles, that one could not transport an ABA model into this classroom, and that it would not be appropriate for Student. He also testified that the size of the class (20 children) was too large for Student.
Dr. Dorsey testified that the research is clear that for someone such as Student, a full-day, full-year program is recommended so that Student receives a consistent and continuous educational program, with the same staff and the same goals and objectives throughout the school year. He recommended breaks in service of no more than five consecutive week days at a time. He testified that in such a program model, children such as Student often blossom. Dr. Dorsey concluded that what Norwood has been providing and what it has proposed is, instead, an eclectic model with interventions that are not evidenced-based. He concluded that appropriate services cannot be delivered to Student in an integrated classroom and that he therefore requires a substantially-separate educational program. This would result in Student’s being educated solely with special needs children, although Dr. Dorsey also recommended that there be opportunities for Student to socialize with typical children.
Dr. Putnam disagreed. He testified that during his classroom observation, he saw Student’s 1:1 aide working with him during an inclusion portion of his school day. Dr. Putnam noted that the aide appropriately used prompting, differential reinforcement, and selective preferences. Dr. Putnam further observed that staff used appropriate prompting, visual supports and facilitated interactions, the staff worked to keep Student on task, they implemented Student’s behavior support plan, and they utilized Student’s communication device to access his peers.
Dr. Putman testified that he reviewed the behavior data and the discrete trial data being maintained by staff. Dr. Putnam found that staff were appropriately collecting and using data as the basis for making adjustments to Student’s programming. He noted the appropriate use of the ABLLS program for this purpose. He concluded that Norwood was providing an intensive and appropriate program that utilized ABA principles. Dr. Putnam also opined that Student’s behavior support plan is working well for him at school and does not need to be modified with respect to school-based behaviors.
Dr. Putnam testified that ABBLS is being appropriately used as a methodology and what is being taught Student is aligned with the ABLLS. He observed that Norwood was doing contemporary data collection. He noted, with approval, that where possible, Student is being taught in the natural setting of the classroom rather than being isolated with an aide or teacher. Dr. Putnam emphasized that because Student is socially motivated, his access to typical peers is useful to him, particularly when this is done in a structured manner, and this is what is occurring in Norwood’s program. He observed that while working with Student, the aide demonstrated appropriate ABA teaching principles. He concluded that Norwood’s inclusion classroom is an intensive ABA-based program that is appropriate for Student.
Dr. Putnam did not observe the proposed integrated kindergarten program but nevertheless opined that because it would be structured and taught in a manner similar to what he observed within the integrated preschool program, the proposed kindergarten program would likely be appropriate. He specifically addressed the question of whether a larger class size (20, as compared to 14 in the preschool program) would be appropriate, and he testified as to his understanding that, as with the preschool, the instruction within kindergarten would be on a 1:1 basis or in small groups, which would be appropriate for Student.
I also found persuasive Dr. Putnam’s placing importance on Student’s being educated with typical peers within an integrated classroom. The undisputed testimony is that Student has become increasingly interested in his peers, has demonstrated emerging social skills, and likely derives substantial benefits from learning with them. It was not only Dr. Putnam, but also Ms. Bailey, and Ms. Hannon-Perera , who recognized this and stressed its importance for Student’s educational development. Testimony of Putnam, Bailey, Hannon-Perera.
There is other evidence, put forth by Parents, that strongly supports the importance of Student’s being educated with peers (who can serve as a model from whom he can learn skills and behavior) for a substantial part of the day. The report of Parents’ educational expert (Ms. Stoll), who observed Student in November and December 2010 and reviewed records, is one important example. Ms. Stoll’s report reflects three days of school observation of Student, as well as parent interview and a records review. She generally observed that Student enjoyed the positive attention of staff who was “dedicated to his well-being”, he was motivated to please the adults around him, and he demonstrated pleasure at being in school among his peers and teachers. She then wrote: “[Student] appeared most motivated to learn and participate when he was among his peers, and in small group learning opportunities of 2-3 students (with support). During each of the 3 school observations [Student] demonstrated interest in watching his peers, growing awareness of events taking place within the classroom, and growing interest in the activities peers were engaging in.” Exhibits P-17, S-12.
Similarly, Student’s physician (Dr. Davis), who generally adopted the recommendations of Dr. Doty and Dr. Castro, wrote: “He requires role modeling of typically developing children given his high level of incidental learning and emerging social skills.” Exhibit S-15.
A weakness of Dr. Dorsey’s testimony regarding placement is that he did not appear to give substantial consideration to the importance, for Student, of learning with typical peers, but instead proposed what might be considered best practice for the majority of children with Student’s diagnosis. This may have occurred because Dr. Dorsey did not speak with Norwood staff who have observed Student’s emerging social skills and increased interactions with and interest in his peers. Testimony of Dorsey .
A fundamental disagreement between Dr. Dorsey and Dr. Putnam is whether Student’s integrated preschool educational program has been (and whether Student’s integrated kindergarten educational program can be) implemented utilizing ABA principles. On this particular issue, the little evidence provided by the parties is closely balanced, with the result that Parents have not met their burden of persuasion. In this regard, it is relevant that, consistent with Dr. Putnam’s recommendations, I will be ordering a doctoral level consultant to be working with Norwood beginning in September 2011. It is anticipated that this consultant will assist Norwood to ensure that Student’s educational program for the 2011-2012 school year is based upon ABA principles.
There was also a dispute as to whether Student’s 1:1 aide was appropriately trained to implement an ABA program. Dr. Dorsey’s report and testimony recommend extensive training, well beyond what Ms. Venuto has received. Dr. Putnam recommended that an aide should receive eight hours of initial training, which is three hours more than Ms. Venuto received. Again, the evidence is closely balanced, and Parents have not sustained their burden of persuasion. I therefore find that eight hours is sufficient.
For these reasons, I find that Student can be appropriately educated within an integrated classroom as proposed by Norwood in the contested IEP, and that a substantially-separate classroom would be unnecessarily restrictive, provided that several adjustments are made regarding staffing, as discussed above. Norwood’s placement therefore comports with the legal mandate, discussed above, that services be provided within the least restrictive environment in which services can be appropriately provided.
An important, remaining part of the dispute is whether Student requires a continuous, year-round educational program without any gaps of more than ten days (as recommended by Dr. Castro) or five days (as recommended by Dr. Dorsey).
It is not disputed that for a child with Student’s profile, best practices typically dictate such a continuous, year-round program both to avoid regression and to maintain the intensity of the program, thereby providing greater opportunities for learning. However, what undercuts this position is that the evidence did not demonstrate any regression as a result of Norwood’s use of a model of a school-year placement in conjunction with a separate program of extended year services during the summer months.
Dr. Putnam and Ms. Hannon-Perera testified persuasively that there was no indication of regression in the ABLLS data or in the behavioral data, with the result that there is no empirical basis for concluding that Student has or would likely regress as a result of breaks in programming and services. Testimony of Putney, Hannon-Perera; exhibits S-26, S-27.
However, because of his legitimate concern regarding regression for a student on the Autism spectrum, Dr. Putnam recommended a modest increase in extended year services—that is, that the related services (currently scheduled to be provided concurrently with the six-week summer program) be extended for one week. He also noted that a continuation of home-based services throughout the year, as discussed below, would also help avoid any potential regression.
I find Dr. Putnam’s testimony persuasive that, with the adjustments discussed above and set forth below in the remedies section of this Decision, Norwood’s currently proposed IEP is appropriate with respect to placement for both the school year and for extended year services.
· Student’s home-based services: There is no dispute that home-based services are an essential component of Student’s IEP.41 And, there is also little substantive dispute, at least among the parties’ experts, that these services should focus on, in order of priority, challenging behaviors, communication skills, and activity of daily living (ADL) skills.42 There is also little debate, and I so find, that the IEP needs to be amended to include goals and objectives in these areas. The parties disagree, however, regarding the amount of services that need to be provided and the schedule for their delivery.
Norwood’s currently proposed IEP calls for six hours of home-based services per week. It is not disputed that Norwood has not actually been providing this level of services.
The unrebutted testimony of Norwood’s Assistant Director of Student Services (Cindie Neilson) was that Parents were offered six hours per week of home-based services, to be delivered between 3 and 6 PM on Monday, Tuesday, Thursday or Friday, and that eventually, Wednesday afternoon was also offered. She explained that Parents have only accepted four of the six hours, apparently because Parents wanted the additional two hours to be provided during the weekend but Norwood staff do not typically provide weekend services. Norwood staff testified that Parents took the position that they were not available for six hours during the above-described time periods when home services could be offered. Testimony of Neilson, Hannon-Perera; exhibit S-40.
Norwood’s home-based services are implemented by Kayla McAlister. Ms. McAlister received ABA training from the May Institute during the 2009-2010 school year, and received five hours of ABA training (and continuing in-service training) from Ms. Hannon-Perera during the 2010-2011 school year. She is supervised by Ms. Hannon-Perera. Testimony of McAlister, Hannon-Perera.
Within the home program, Ms. McAlister works on the same ABA program that Student works on at school. This includes pre-academics, reading and counting. There are no community safety skills or other daily living skills being addressed through home-based services. Ms. McAlister opined that Student has mastered skills and made demonstrable progress, as reflected on the ABLLS. Testimony of McAlister, Hannon-Perera.
Ms. Hannon-Perera testified that the IEP service delivery grid calls for one hour per week of her time to be provided as consultation to the home-based services. She explained that she and Mother agreed that this consultation service would be provided every other week for two hours at a time. Ms. Hannon-Perera testified that, with very few exceptions, she was able to provide this level of consultation. Testimony of Hannon-Perera.
Dr. Putnam testified that, in his opinion, Norwood’s home-based services should be increased to ten hours per week and that some of these services should be provided at a time when Father is home and can participate. Testimony of Putnam.
Based upon Student’s significantly diminished functional skills, his highly restrictive range of activities, and his aberrant behavior, Dr. Castro’s May 2011 evaluation report recommended a minimum of 15 hours per week of home-based services. Dr. Doty, on the other hand, recommended home-bases services of 12 hours per week, and Dr. Dorsey recommended home-based services of 20 hours per week. None of these experts provided extensive analysis or explanation as to why the number of hours should be 12, 15 or 20. Testimony of Putnam, Doty, Dorsey; exhibits P-14, P-29, P-49 (page 10), S-10, S-14.
Parents also provided the testimony and report of Dr. Benavides regarding an April 22, 2011, Beacon ABA Associates behavioral assessment to determine Student’s need for home-based services for purposes of insurance coverage. He testified that he recommended that, as a starting point, Student receive 20 hours per week of home-based services, and that this amount of services could be adjusted over time. He noted that this amount of services is predicated upon the severity of Student’s deficits and his behavior challenges. He explained that the home-based services would address all of Student’s home- and community-based deficit areas. However, when asked, Dr. Benavides could provide little basis for recommending 20 hours, as compared to 10 hours or 12 hours or 15 hours of home-based services, other than to state generally that the amount of services is predicated on the severity of a child’s needs. He also declined to provide any basis for concluding what benefit would likely be obtained from services at this level. Testimony of Benavides; exhibit P-30. For these reasons, I find Dr. Benavides’ testimony to have limited probative value.
I find that Parents have not sustained their burden of persuasion that Student should receive more than the ten hours of home-based services recommended by Dr. Putnam. I also note that an important part of Dr. Putnam’s recommendation is that these services be provided throughout the calendar year, and I concur with this recommendation as necessary to avoid regression.
Dr. Putnam also persuasively testified that Norwood should provide a substantial amount of home-based services at times when Father is able to be home so that he can participate. Again, I find this recommendation persuasive.
I also note that the doctoral level consultation to be provided to Norwood’s educational program, as discussed above, will include consultation to the home-based services. For reasons explained above, it will be critical that this consultant make a priority of working with all concerned towards reducing and, ultimately eliminating, Student’s challenging behaviors at home.
With these adjustments recommended by Dr. Putnam (and set forth in the section immediately below), I find that Norwood’s home-based services are appropriate.
· Relief with respect to the currently proposed IEP : For the reasons detailed above, Norwood’s IEP shall be immediately amended in the following ways so that prospective services will be reasonably calculated to provide Student with FAPE in the least restrictive environment:
· ABB/DTT services shall be increased to 15 hours per week during the school year.
· Speech-language services shall be increased to a half hour each day, with at least four of the five weekly sessions provided on a 1:1 basis.
· Home-based services shall be increased to ten hours per week, with at least three of these ten hours delivered when it would be reasonable to expect Father to be able to be in Student’s home. Until Student’s challenging behaviors at home have been addressed satisfactorily, these home based services shall be provided throughout the school year, with no gap in services longer than ten calendar days.
· Extended school year services shall be increased by adding a week of related services at the end of the six-week summer program.
· There shall be additional consultation services, as detailed immediately below.
Norwood shall immediately hire a doctoral level BCBA consultant for at least one hour per week, with additional hours to be provided initially, as discussed below. This shall be for the purpose of providing consultation to Norwood staff regarding how Norwood and Parents should address Student’s behaviors at home, how the ABA/DTT services should be provided at school, and how, in general, Student’s overall educational program at school and at home should be provided, as discussed in more detail throughout this Decision. The consultant must have sufficient experience and expertise for these purposes. During at least the first two weeks of school in September 2011, the consultant time shall be for six hours per week, with a gradual reduction of this time to three hours per week, and then to two hours per week, and then to the on-going one hour per week. Timing of the reduction of the consultant’s time to one hour per week shall be guided by the consultant’s opinion.
Norwood shall also immediately hire a consultant for at least two or three hours per month (with more hours initially, as described below) for purposes of consulting with Norwood staff and Parents regarding Student’s communication deficits and how they may be addressed through assistive and augmentative communication. During the first month (and longer if needed), the consultant time shall be for ten hours per month, with a gradual reduction of this time to the on-going two (or more) hours per month. The consultant shall use part of the time during the first month to evaluate Student regarding his communication needs and how they should be addressed, and to teach staff and Parents how to implement his or her recommendations. More specifically, the consultant shall (1) determine appropriate methods of assistive and augmentative communication for Student, (2) train and support Student, staff and Parents regarding the use of appropriate communication technology that can be consistently utilized at school to allow Student to meaningful access to the curriculum, and that can be utilized at home to communicate with family and friends, (3) monitor the implementation and effectiveness of the communication technology, and (4) make improvements and other adjustments as needed over time with respect to the communication technology and how it is being used. The consultant shall have sufficient specialized knowledge and expertise both in the area of communication and in the area of assistive technology in order to carry out these responsibilities. Timing of the reduction of the consultant’s time to at least two or three hours per month (and whether two hours per month or more is needed) shall be guided by the consultant’s opinion regarding this matter.43
With respect to the hiring of each of the two above-referenced consultants, Norwood shall offer Parents an opportunity for meaningful input into the selection of the person who will be retained by Norwood as the consultant. (I note that if the parties are able to agree on the person who will be the consultant, this may increase the likelihood that the parties can rely upon these experts to help resolve any future disputes.)
The aide working with Student shall have received at least eight hours of training prior to providing services to Student. Norwood shall provide the aide with at least five hours per week of mentoring support by a BCBA for the first four weeks; this can be faded out to one hour per week.
The IEP Team shall re-convene within four weeks44 of the beginning of the 2011-2012 school year to add (1) language-based goals relevant to Student’s communication deficits, (2) behavior goals relevant to the home and community, and (3) activities of daily living goals relevant to the home and community.
C. Compensatory Claims .
Compensatory services are essentially a discretionary remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.45 Compensatory education is an equitable remedy involving discretion in determining what relief is appropriate after consideration of all aspects of the case.46
For reasons explained above, I have found that Student’s current IEP is not appropriate. However, Parents’ compensatory claims are constrained in several respects. First, Parents did not reject an IEP until their attorney’s letter of February 10, 2011. Parents’ compensatory claims will therefore only be considered from that date forward.47
Second, in considering the appropriateness of an IEP for purposes of compensatory relief, the actions of a school district are not to be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.48
When the current IEP was proposed in November 2010, Norwood did not have the benefit of several of the expert opinions on which Parents rely for purposes of attacking the appropriateness of the IEP. For example, Dr. Dorsey did not issue a report until April 2011, and Dr. Castro did not re-evaluate Student until a few days before the beginning of the hearing in this case. Also, Norwood did not have the benefit of Dr. Putnam’s consultation until shortly before the hearing; and as is apparent from my discussion above, Dr. Putnam’s opinions provided the most reliable and useful information regarding the appropriateness of Norwood’s IEP and what changes should be made to it. On the other hand, Norwood had the benefit of Dr. Doty’s evaluation and the earlier ICCD evaluation (May 2009).
In addition, as discussed above, Norwood provided extensive special education services to Student, and, as a result, Student made meaningful progress during the 2010-2011 school year with respect to in-school behavior, which is a critical area of concern. Also, Student made slow progress in other areas. I further note that although I have found Norwood’s services not to provide FAPE, this is because its services need to be expanded somewhat, and not because the services themselves were wholly inappropriate. Testimony of Putnam, Bailey, Stoddard, McCarthy, Hayden-Sloane, Venuto, Harkins.
In light of the limited period of time in question (February 10, 2011 to the present), the somewhat limited expert opinion available to Norwood when the IEP was written, the extent of services provided by Norwood, and the extent of the benefit to Student of those services, I find that compensatory education is not warranted in the instant dispute.
D. Alleged Failure to Implement the Current IEP
Parents have made a claim that accepted portions of Norwood’s IEPs related to home-based services were not fully implemented.
In this regard, Norwood is not held to a standard of perfection. In order to obtain compensatory services for alleged failure to implement, a parent generally must show more than a de minimus failure by a school district, with courts recognizing that inevitably the special education and related services due any student will not necessarily be delivered flawlessly.49
Mother testified that the Norwood BCBA who supervises home-based services has spent only about five hours with her over the course of the 17 weeks of school since January 3, 2011. The Norwood BCBA (Ms. Hannon-Perera) testified that the IEP service delivery grid calls for one hour per week of her time to be provided as consultation to the home-based services. She explained that she and Mother agreed that this consultation service would be provided every other week for two hours at a time. Ms. Hannon-Perera testified that, with very few exceptions, she was able to provide this level of consultation.
It is not possible for me to determine that one witness was more credible or persuasive than the other. Consequently, I find that this evidence is closely balanced, with the result that Parents have not met their burden of establishing more than a de minimus failure to implement the IEP.
For these reasons, I decline to order any relief with respect to Norwood’s alleged failure to implement portions of accepted IEPs.
E. Request for Reimbursement for Independent Education Evaluations
On May 12, 2010 when Student was four years old, Norwood requested consent for a home assessment, observation of Student, and a health assessment. On May 17, 2010, Parents consented to these assessments and observation. Testimony of Mother; exhibit P-7.
Parents take the position that Norwood did not conduct a home assessment or school observation until after Parents’ expert (Dr. Dorsey) conducted his home assessment on February 7, 2011 and school observation on March 29, 2011, which are discussed more fully above. Because of Norwood’s delay in conducting the home assessment and school observation, Parents argue that Norwood should reimburse them for the costs of Dr. Dorsey’s home assessment and school observation.
With respect to school observation, it is not disputed that Norwood personnel regularly observed Student. For example, observations were conducted as part of the Academic, Occupational Therapy, Speech-Language and Physical Therapy Assessments that were conducted from May 18 through May 27, 2010, and the preschool developmental evaluation in October 2010. Exhibits S-5, S-6. Parents make no argument that these observations of Student were not appropriate or comprehensive.
For these reasons, I am not persuaded by Parents’ argument that Norwood failed to conduct a timely, appropriate or comprehensive observation of Student, and I decline to order reimbursement for Dr. Dorsey’s school observation.
With respect to the home assessment, Norwood argues, on the basis of the testimony of its Assistant Director of Student Services (Cindie Neilson), that a home assessment involves obtaining information from the family but does not necessarily include a visit to the home, and that a proper home assessment (without a home visit) occurred well before Dr. Dorsey’s home assessment.
I do not find this persuasive. The evidence regarding the need for an appropriate and comprehensive home assessment is readily apparent from the extreme, challenging behaviors in the home, as discussed above. And, it cannot be seriously debated that in the context of the present dispute such an assessment must include a visit to the home where the behaviors were occurring, even if it is true that, as a general rule, a home visit may not be required in every home assessment. It is evident that Norwood did not conduct such an assessment until after Dr. Dorsey’s home assessment, which occurred approximately nine months after Norwood identified the need for such an assessment and procured Parents’ consent.
I find that Norwood’s delay in conducting an appropriate and comprehensive home assessment warrants reimbursement for Dr. Dorsey’s home assessment.
The IEP most recently proposed by Norwood is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Norwood shall make modifications to the IEP and satisfy additional requirements, as set forth within the section entitled “ Relief with respect to the currently proposed IEP” in part V B, above. With these changes, the IEP will be reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Parents are not entitled to compensatory services.
Norwood shall reimburse Parents for the costs of Dr. Dorsey’s home assessment.
Parents are not entitled to reimbursement for any other out-of-pocket expenses.
By the Hearing Officer,
Dated: August 4, 2011
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Norwood Public Schools BSEA # 11-5444
This partial decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on May 19, 24, 26, 27, and 31, 2011 in Malden, MA before William Crane, Hearing Officer. The parties agreed that as soon as possible following the hearing and receipt of argument, I should address the limited issue of the appropriateness of Norwood’s using a hip stabilizing belt while feeding Student. The parties provided written argument on this issue on June 3, 2011.
I am hereby issuing a partial decision on this limited issue.
Norwood seeks to use a hip stabilizing belt for the limited purpose of assisting with (and making safer) Student’s feeding at school, while Parents take the position that a hip stabilizing belt is not warranted and constitutes unauthorized restraint.
Student, who is diagnosed with Pervasive Developmental Disorder Not Otherwise Specified, is a medically-complicated young boy. He has a number of documented medical concerns related directly to feeding, including gastroesophageal reflux, tracheomalacia and failure to thrive. At the same time, however, Student has a normal swallow. A G-tube was placed in July 2007 and continues in place for supplemental feeding. Student has low muscle tone which reduces his ability to maintain a stable, upright sitting posture for extended periods of time; and, more specifically, he has reduced oral muscle tone and strength, with the result that he eats slowly. Student is easily distracted, and it is not unusual for him to reach for others or for their food when he gets excited. For these reasons, when he is eating by mouth (which is what occurs at school), Student requires assistance and must be closely supervised at all times. Norwood has a written plan in place for Student for purpose of oral feeding at school. Testimony of Mother, Hayden-Sloane, Hamilton-Dodd; exhibits P-1, P-11, P-35, S-33.
At school, Student eats lunch and snack while sitting in a Rifton chair. As compared to a typical chair, the Rifton chair provides increased support for Student while seated. The hip stabilizing belt is a seat belt that is attached to the Rifton chair. Until objected to by Parents, Norwood used the hip stabilizing belt with Student during feeding times. Testimony of Mother, Stoddard.
Norwood’s use of the hip stabilizing belt served several purposes. The belt kept Student seated in an upright posture and in appropriate alignment for eating. This supported Student’s suck, swallow and breath pattern and promoted effective chewing and swallowing. All of this promoted efficient eating of food and reduced Student’s risk of choking. Testimony of Hayden-Sloane, Stoddard; exhibit S-34.
Norwood also found that the hip stabilizing belt served the purpose of preventing Student from standing up while eating. Student has stood up several times when eating without the use of the hip stabilizing belt. At least some of Student’s attempts to stand while eating in the Rifton chair may be the result of a stand-up reflex in his lower body that occurs when he attempts to straighten his legs to achieve an appropriate posture for swallowing. When Student stands up while eating, this increases the risk of choking. Testimony of Hayden-Sloane, Stoddard, Mother; exhibits S-34 S-37.
It can take as long as 40 minutes for Student to eat his lunch and as long as 20 minutes for him to eat his snack at school. Norwood found that the use of the hip stabilizing belt allowed Student to be in an appropriate, safe posture for eating without Student’s needing to use an excessive amount of effort to maintain this posture. This resulted in Student’s having more energy for eating. Student was eating more efficiently and effectively with the use of the hip stabilizing belt. His food consumption at school has decreased since the hip stabilizing belt was discontinued. Testimony of Hayden-Sloane, Stoddard.
I consider Norwood’s decision to use a hip stabilizing belt to be comparable to a school district’s selection of a particular methodology of instruction. In the latter context, a BSEA Hearing Officer is required to defer to a school district’s choice of methodology unless to do so would deny FAPE. Norwood’s decision to use the hip stabilizing belt was based on recommendations of persons with expertise in feeding Student and who bear the responsibility of safely and effectively feeding Student while at school. Its decision should not be overturned unless there is substantial and persuasive evidence or law to the contrary.
Parents sought to rebut Norwood’s evidence through the testimony of a private occupational therapist (Carol Hamilton-Dodd, MA, OTR/L) who has a specialty in feeding and who has worked with and recently (May 12, 2011) observed and re-assessed Student for feeding issues. Ms. Hamilton-Dodd testified that she agreed that if Student bends over or is playing while eating, there is a greater risk of choking; but she was not certain whether Student’s standing up would increase the risk of choking. Ms. Hamilton-Dodd further testified that, on the basis of her observation and assessment, she did not believe that a hip stabilizing belt was needed to ensure Student’s safety while eating, and she did not recommend its use. Testimony of Hamilton-Dodd; exhibit P-47.
Although Ms. Hamilton-Dodd was a credible, expert witness, I found her testimony to be less persuasive than that of Ms. Hayden-Sloane. This is because Ms. Hamilton-Dodd’s observation of Student eating was conducted over a relatively short period of time (15 minutes as compared to Student’s needing up to 40 minutes to complete a meal at school) and without the distractions of the school lunch room where Student eats with other children. Ms. Hayden-Sloane, who is a trained feeding specialist and who recently assessed Student regarding feeding, has far more extensive experience addressing Student’s feeding challenges within the actual context in which they arise at school. Testimony of Hamilton-Dodd, Hayden-Sloane; exhibits P-47, S-45.
Parents also submitted a signed, notarized letter from Student’s physician (Christopher Giuliano, MD), dated May 9, 2011. In his letter “To whom it may concern”, Dr. Giuliano wrote that he did not believe it necessary for Student to be “restrained while eating as this will not affect his risk of choking.” However, Dr. Giuliano did not testify, and there is no basis for me to conclude that he has expertise in feeding a child with Student’s disabilities; and although he made a general reference to restraint, his letter did not address the specific question of the appropriateness of using the Rifton hip stabilizing belt. Exhibits P-34, P-39. I therefore do not give his letter probative value.
Mother’s testimony also supported Parents’ position. She testified that when Student stands up, he can be prompted to sit down. Mother also testified that at home and, more recently at school where Mother or Father has been feeding Student, Student has been fed without incident without wearing a hip stabilizing belt. Testimony of Mother. However, this evidence does not support the proposition that Student can be precluded, by prompts or cuing, from standing up while eating without the use of a belt. Nor does this evidence contradict Norwood’s assertion that there is a serious risk of choking if Student eats without a hip stabilizing belt.
In reviewing the above evidence, I am persuaded that use of a hip stabilizing belt substantially improves Student’s food intake (which is particularly important in light of Student’s diagnosis of failure to thrive) and substantially decreases the risk of choking. However, as discussed below, I further find that, absent an order from a physician, Massachusetts Department of Elementary and Secondary Education (DESE) regulations preclude Norwood’s use of a hip stabilizing belt.
DESE regulations 603 CMR 46.00 govern the use of restraint within a public school district. The regulations are entitled “Physical Restraint” and much of the content of the regulations is directed at physical restraint. However, the regulations also address briefly the use of mechanical restraint.50 The relevant language, contained with the definition section, is as follows:
Restraint – Other: Limiting the physical freedom of an individual student by mechanical means or seclusion in a limited space or location, or temporarily controlling the behavior of a student by chemical means. The use of chemical or mechanical restraint is prohibited unless explicitly authorized by a physician and approved in writing by the parent or guardian. The use of seclusion restraint is prohibited in public education programs.
(a) Mechanical Restraint: The use of a physical device to restrict the movement of a student or the movement or normal function of a portion of his or her body. A protective or stabilizing device ordered by a physician shall not be considered mechanical restraint.51
By its terms, the above-quoted regulatory language prohibits the use of mechanical restraint unless “explicitly authorized by a physician and approved in writing by the parent or guardian.” It is not disputed that Parents have not approved the use of the hip stabilizing belt and are unlikely to do so in the immediate future. Thus, to the extent that the hip stabilizing belt is considered to be mechanical restraint, Norwood is not allowed to use it.
I find that the hip stabilizing belt falls within the general regulatory definition of mechanical restraint, thereby making the use of the belt subject to these regulations. This is because the belt limits Student’s “physical freedom … by mechanical means.” See quoted language, above.
However, there is one possible way for Norwood’s use of the stabilizing belt not to be considered mechanical restraint and therefore not to require parental consent. In subpart (a), quoted above, the regulations allow for a “stabilizing device” to be exempt from the restraint regulations (and therefore its use would be otherwise permissible) but only if it is “ordered by a physician”. It is not disputed that no physician has ordered the use of a hip stabilizing belt for Student.52
These regulatory standards regarding restraint do not permit any further exemption, even for purposes of protecting the safety of Student.
In summary, I find that it would be appropriate for Norwood to use a hip stabilizing belt in accordance with a physician’s written order. Norwood may seek to obtain a physician’s order for this purpose. However, unless and until a physician has ordered its use for Student, Norwood is precluded from using a hip stabilizing belt with Student for any purpose.
For reasons explained above, Norwood may not utilize a hip stabilizing belt when feeding Student unless and until Norwood obtains a written order from a physician for this purpose.
By the Hearing Officer,
Dated: June 7, 2011
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.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 obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, 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 to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. 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. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state 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(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student 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.
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 federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
Parents’ closing argument includes reference to a private program (Crossroad School) and seeks an order that Student be placed in this program. Norwood filed a motion to strike this part of Parents’ argument. Since my decision does not rely upon this part of Parents’ closing argument, I need not address Norwood’s motion.
20 USC 1400 et seq .
MGL c. 71B.
20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12 (1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living’” citing to 20 USC § 1400(d)(1)(A)).
The phrase “least restrictive environment” means that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC § 1412(a)(5). See also 20 US § 1400(d)(1)(A); 20 USC § 1412(a)(1)(A); MGL c. 71B, s. 1; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
See, e.g., Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993); DeVries v. Fairfax County School Board , 882 F2d 876, 878 (4 th Cir. 1989 ); Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1044 (5 th Cir. 1989). See also Rafferty v. Cranston Public School Committee , 315 F.3d 21, 26 (1 st Cir. 2002) ( “Mainstreaming may not be ignored, even to fulfill substantive educational criteria.”), quoting Roland v. Concord School Committee , 910 F.2d 983, 992-993 (1 st Cir. 1990).
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig , 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard, , 518 F.3d at 23 (referencing the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
Lenn v. Portland School Committee , 998 F.2d 1083, 1089 -1090 (1 st Cir. 1993) (emphasis in original, internal citations omitted).
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).
Lessard , 518 F.3d at 23 (citations omitted). See also Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
Lessard , 518 F.3d at 23-24 (internal quotations and citations omitted). See also G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991) (educational services need not necessarily be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).
See Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted ); Rowley, 458 U.S. at 192 (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
See Murphy v. Timberlane Regional School Dist . 22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985); Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) (“meaningful progress … is the hallmark of educational benefit under the [federal] statute”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ). The First Circuit and Massachusetts federal district courts have sometimes articulated a meaningful benefit standard in terms of effective results and demonstrable improvement. See, e.g., North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
See, e.g., Houston Independent School Dist. v. V.P. ex rel. Juan P ., 582 F.3d 576, 583 (5 th Cir. 2009) (adopting a meaningful benefit standard) ; P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed. , 546 F.3d 111, 119 (2 nd Cir. 2008) (“ door of public education must be opened in a meaningful way”); L.E. v. Ramsey Bd. of Educ ., 435 F.3d 384, 395 (3 rd Cir. 2006) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley , requires provision of a “meaningful educational benefit”) ; A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (referencing standard of “whether the school district appropriately addressed the child’s needs and provided him with a meaningful education[al] benefit under the substantive prong of Rowley ”), cert. denied , 543 U.S. 1009
Lessard , 518 F.3d at 29 .
Rowley , 458 U.S. at 202.
Deal v. Hamilton County Board of Education, 392 F.3d 840, 862 (6 th Cir. 2004) (internal quotations and citation omitted).
20 USC 1401(9)(b); Winkelman v. Parma City School Dist. , 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”).
Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”) .
603 CMR 28.05 (4) (b).
See IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found at http://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc See also exhibits P-18, S-19 (describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”).
603 CMR 28.01(3).
Technical Assistance Advisory SPED 2007-1, which may be found at: http://www.doe.mass.edu/sped/advisories/07_1ta.html
See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. , 471 U.S. 359, 369-70 (1985) (ordering the reimbursement of parents for the unilateral placement of student in a private school).
Id. at 370.
Schaffer v. Weast , 546 U.S. 49, 62(2005) (burden of persuasionin an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
Mother testified that Student’s hand-biting has only occasionally resulted in making teeth marks on his hands and only once (the January 24, 2011 incident discussed above) resulted in breaking the skin. Testimony of Mother.
It is possible, of course, that Student’s challenging behaviors at school have been remediated by reducing the academic and other demands on Student, with the implication that he is given fewer opportunities to learn because of his behavioral history. Dr. Castro and Dr. Dorsey raised this as a possible concern. However, as Dr. Putnam persuasively testified, there is no data or evidence to indicate that this is actually the case.
More specifically, Dr. Putnam testified that there needs to be a way to train Mother so that she can follow through with his behavior support plan. He explained: “we know [Student’s behavior support plan] works in school, we know it works with the home providers, so we have evidence-based interventions that it works. The question would be is, okay, is how do we then generalize that to the situations at home tweaking the home services so that basically we can help mom better impact on his behavior. Which, I think is really having mom be more actively part of the home program and that we may need to tweak what we’re doing at home in terms of his skills such that he learns those replacement behaviors and things that he does with the staff now. And then mom is part of that and mom develops fluency with [Student] in kind of easy situations, right, that doesn’t put him in a situation where it’s a super-challenging situation, it’s easy, that mom builds the fluency and [Student] builds his fluency with mom as well. And then we look at trying to look at take it out of that situation into somewhat more challenging situations.”
Norwood’s speech-language pathologist working with Student (Michelle McCarthy) testified that Student has been making progress regarding speech-language skills, she did not specifically rebut Dr. Doty’s recommendation for increased services in this area in order to allow Student to make greater gains regarding his communication skills. Testimony of McCarthy.
Parents privately purchased the iPod Touch, which was introduced in the home in June 2010 for Student to use as a communication device, and was introduced at school for this purpose in September 2010. Mother testified that when she observed her son at school on October 14, 2010, he was not using the iPod Touch at times when it would be appropriate to do so (e.g., to make food choices). Norwood witnesses testified that Student was using his iPod Touch at school for purposes of communication although there are no IEP benchmarks relevant to the iPod Touch with the result that staff are not formally working to develop this as a communication device for Student. An eTech assessment recommended that Student use his iPod Touch for all “communicative attempts” at school. However, Norwood’s speech-language pathologist (Ms. McCarthy) testified persuasively that Student needs a significant amount of guidance to integrate this device into his school day. She opined that although it clearly benefits Student at school and she is committed to making it work better, the iPod Touch may not be the best augmentative communication device for him. Testimony of Mother, McCarthy; exhibits S-21, P-4, P-15.
A school district must provide assistive technology if access to that technology is required in order for a student to receive FAPE. See 34 C.F.R. § 300.105; see also 20 U.S.C. § 1414 (d)(3)(B)(v).
In seeking to demonstrate very limited progress, Parents relied upon an additional ABLLS chart, which is exhibit P-48. Parents received the additional chart (exhibit P-48) from Ms. Bailey during a Team meeting. However, the ABLLS charts that Ms. Hannon-Perera utilizes are reflected only within exhibits S-26 A and B. And, there was no evidence indicating who completed this chart or what data was used to generate this chart. Accordingly, I do not consider exhibit P-48 to have probative value for purposes of understanding Student’s progress on the ABLLS.
Dr. Dorsey also focused on some skills that Student is not able to master because of his motoric limitations—for example, he is unable to manipulate a puzzle piece even though he understands the concept of what is to be done—and these skill areas were then discontinued. Student’s progress in learning and eventually mastering skills on the ABLLS is charted so that Student’s progress from year to year can be demonstrated. I do not find this to reflect a failure of Norwood’s program but rather simply a limitation on Student’s ability to learn that is being addressed through occupational therapy services.
Federal courts and Massachusetts Hearing Officers have recognized the importance of considering this educational “window of opportunity,” particularly for young children with Autism to avoid jeopardizing the student’s opportunity to make effective progress, and to allow a student to develop his educational potential. See, e.g., TH v. Board of Education of Palatine , 55 F. Supp.2d 830 (N.D.Ill. 1999):
The experts testified that there is a critical developmental window for autistic children with language and behavioral deficits. Without sufficient adult intervention now to help reprogram [student’s] young brain, his opportunity for “meaningful access to education” may be permanently foreclosed. [Citations omitted.]
See also JH v. Henrico County School Board, 326 F.3d 560 (4 th Cir. 2003) ( “window of opportunity” is relevant in determining the level of services needed to prevent student’s progress from being “significantly jeopardized”); Lawyer v. Chesterfield County School Board, 19 IDELR 904 (E.D. Va. 1993) (court first notes “a small, but vital, window of opportunity in which [students with moderate to severe childhood autism] can effectively learn”. . . and then concludes that “it is extremely important that at this critical stage of development, [student] receive uninterrupted speech language therapy”); In Re: Haverhill Public Schools , BSEA # 04-4998, 10 MSER 350 (MA SEA 2004) (critical importance of providing effective services to a child on autism spectrum during his early years); In Re: Revere Public Schools, 38 IDELR 116 (SEA MA 2002) (student is “in a critical period of child development and this valuable window of opportunity for Student to receive FAPE must be fully utilized”); In Re: Belmont Public Schools, 35 IDELR 77 (SEA MA 2001) (because of Student’s window of opportunity to absorb more education now than when she reaches age 7 or 8, it is “particularly important to provide Student at this point in time with all of those educational services from which she can benefit” [emphasis in original]); In Re: Winthrop Public Schools, 29 IDELR 558 (SEA MA 1998) (“there is a narrow window of opportunity which must be capitalized upon in educating children, such as Student, who present with autism/PDD, if their educational development and potential is to be maximized”); In Re: Watertown Public Schools , 24 IDELR 92 (SEA MA 1996) (“Children with PDD and autism have a window of opportunity from the ages of roughly three to seven in which their capacity to learn is at their greatest. Once the window of opportunity closes, hope for further development is greatly limited.”).
Dr. Putnam recommended that Norwood hire a doctoral level consultant who would look in detail at what’s going on and then and make recommendations and conduct either additional training or additional consultation regarding both the school-based services and the home-based services. The consultant would also look at Student’s behavior support plan and do more training regarding predictors of his behavior at home, which Parents don’t necessarily see in school. He explained that there should also be more training regarding fluency of Student’s ability to request more attention or to request a break or request a delay in terms of postponing a preferred item being taken away from him or being told no. Dr. Putman explained that it is the social skills aspects that the consultant would be looking at with respect to both school and home. The result should be more fluency in terms of his skills, making it easier for generalization, rather than only dealing with behavior when it occurs.
For example, Dr. Putnam testified regarding the importance of providing home-based services because in terms of educational behavioral development, it is critical that Student be able to demonstrate proficiency of
what he’s learned in multiple environments including the home and the community. Testimony of Putnam.
Mother testified that Student has virtually no activity of daily living (ADL) skills. She explained that if she unzips his coat, he can take it off, but he does not comb his hair or brush his teeth, and he is not toilet trained. She noted that her son actually “works against you” (i.e., resists your efforts) if you wash him in the bathtub, dress him, or change his diaper. She noted that there are no IEP goals related to ADL skills and that she was told by Norwood that Student was not yet ready to be taught (through home-based services) ADL skills.
Other school districts have utilized this kind of consultation. See, e.g., In Re: Hudson Public Schools , BSEA # 11-6562, page 7 (August 2, 2011) (describing the assistive technology consultation utilized by the school district).
Four weeks is chosen to allow time for the above-referenced consultants to observe and make initial recommendations to the Team.
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist . , 513 F.3d 279, 290 (1 st Cir. 2008) ( compensatory education is a “discretionary remedy”); Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
See In Re: Boston Public Schools , BSEA # 11-4676, 17 MSER 76 (4/17/11) (discussing the effect of an assented-to IEP regarding compensatory claims).
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).
See Houston Independent School District v. Bobby R ., 200 F.3d 341, 348-49 (5 th Cir. 2000) (“to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis [sic] failure to implement all elements of that IEP”). See also Van Duyn v. Baker School Dist. 5J , 481 F.3d 770 ( 9 th 2007) (“ when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child’s IEP. A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP.”); Melissa S. v. Sch. Dist. of Pittsburgh , 2006 WL 1558900 (3 rd Cir. 2006) (adopting Bobby R . standard); Neosho R-V Sch. Dist. v. Clark , 315 F.3d 1022, 1027 n.3 (8 th Cir. 2003) (citing Bobby R . with approval).
The DESE regulations distinguish mechanical restraint from physical restraint. The latter is defined to mean “[t]he use of bodily force to limit a student’s freedom of movement.” 603 CMR 46.02 (3). As noted in the text above, mechanical restraint refers to limiting the physical freedom of a student by mechanical means.
603 CMR 46.02 (5).
This part of the regulations also serves to clarify a related point, which is that contrary to Norwood’s arguments, a belt used for the limited purpose of physically stabilizing a student in a chair (rather than a belt used for the purpose of limiting or controlling the voluntary movement of a student trying to exit the chair) is precluded unless ordered by a physician. This is because a hip stabilizing belt is a “stabilizing device” that, in effect, limits Student’s “physical freedom”, thereby bringing it within the scope of the regulations.