Amherst Pelham Regional School District v. Student – BSEA #07-2259 and 07-3796



<br /> Amherst- Pelham Regional School District v. Student – BSEA #07-2259 and 07-3796<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Amherst-Pelham Regional School District v. Student

BSEA # 07-2259 & BSEA # 07-3796

DECISION

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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

The matter before me involves an appeal filed on October 5, 2006, by Amherst-Pelham Regional School District (Amherst) and Parents1 ’ request for Hearing received on January 8, 2007. The hearing was held on March 6 and 7, 2007 at the office of Catuogno Court Reporting, 446 Main St., Worcester, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:

Student’s Mother

Maria Geryck Director of Student Services, Amherst

Jeannie White Student Services Administrator, Amherst

Fran Ziperstein Principal, Amherst Regional Middle School

Kathy Olson ASD Consult/Specialist, Amherst

Denise O’Donovan Special Education Liaison, Amherst

Melissa Campbell Morton Vocational Coordinator, Amherst

Theresa Richards Instructional Assistant, Amherst

Corrina Trude Former Special Education Teacher, Summer School, Amherst

Kari Ann Pepe Physical Therapist, Amherst

Jennifer McIntire Behavior Analyst, Amherst

Regina Williams-Tate Attorney for Amherst

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits PE-1 to PE-5, PE-7 to 22, PE-24 to PE-40, PE-42, and PE- 44 through PE-542 ; documents submitted by Amherst and marked as exhibits SE-1 through SE-109; recorded oral testimony and oral closing arguments. The record closed on April 17, 2007 upon receipt of the Parties’ written closing arguments, and Amherst’s Response to Parents’ List of Concerns.

PROCEDURAL BACKGROUND AND OBJECTIONS OF THE PARTIES:

Parents originally requested a Hearing, BSEA # 07-0830, on August 14, 2006. The matter was assigned to Hearing Officer Berman. On October 8, 2006, Amherst filed a request for hearing BSEA #07-2259, and requested that the two matters be consolidated. The matters were not consolidated and on November 1, 2006, Parents withdrew their request for hearing, leaving only BSEA #07-2259 pending. In mid-December 2006, Amherst’s request for hearing was scheduled to proceed on January 30 and February 6, 2007.

On January 8, 2007, Parents filed a request for hearing, BSEA # 07-3796, involving the issue raised by Amherst and several other issues listed in the “Issues” section of this decision. The next day, Amherst requested that the matters be consolidated and that both cases be heard on January 30, 2007. The matters were consolidated on January 29, 2007 and the Hearing was postponed that same day at the request of Parents and Amherst. A notice of Re-scheduled Hearing was issued on February 7, 2007, scheduling the Hearing for March 6 and 7, 2007.

On February 21, 2007, the Hearing was administratively re-assigned to this Hearing Officer. In preparation for the hearing, a conference call was held on February 26, 2007 as a result of which a detailed order was issued addressing all preliminary matters. Said order instructed the parties as to who carried the burden of proof regarding the different issues raised by each party.

Pursuant to the order of February 28, 2007, Amherst was advised that it carried the burden of proof regarding the appropriateness of the IEP it promulgated for the 2006-2007 school year3 , that is, the issue it raised in its hearing request received in October 2006. The order informed Parents that they carried the burden with respect to the rest of the claims raised in their Hearing Request of January 8, 2007. At the hearing, Amherst raised an objection to carrying the burden of proof, stating that Parents filed a hearing request before they did in August 2006. The objection was noted for the record but overruled for the following reason. Even though Amherst had requested that BSEA # 07-0830 and BSEA #07-2259 be consolidated, these two matters were never consolidated. Thereafter, Parents withdrew their request for hearing (BSEA # 07-0830) in November 2006, leaving the school’s request BSEA #07-2259 standing alone. Only that matter was scheduled to proceed in January 2007. Parents’ withdrawal shifted the burden of proof to Amherst with respect to the one issue it raised. This finding is consistent with Schaeffer v . Weast , 126 S.Ct. 528 (2005) which imposes the burden of proof in an administrative hearing on the party seeking relief. At least during the period of time from November 1, 2006 through January 29, 2007 the only issue before the BSEA, was raised by Amherst and the only party seeking relief was Amherst.

In Schaffer , the Supreme Court explained

We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP , they will in turn bear the burden of persuasion before an ALJ. [Emphasis supplied.] Schaeffer , 126 S.Ct. 528, 537 (2005).

Clearly, Schaeffer contemplated instances where school districts carried the burden of proof. Although the language above is not precisely on point, given that Amherst is not technically “challenging an IEP”, the intent of the court seems to be clear that the rule must apply to the “original” moving party regarding the IEP, in this case Amherst.

Parents filed a new request for hearing, BSEA # 07-3796, in January 2007. It is this case which was consolidated with BSEA #07-2259 by the previous Hearing Officer on January 30, 2007. I note that had the original two matters been consolidated back in October 2006, then the burden of proof would have stayed with Parents. However, once Parents’ original case was withdrawn, the burden shifted to Amherst. Parents’ subsequent request for Hearing does not alter this shift. As such, for purposes of the instant case, Amherst carries the burden of proof with regard to the 2006-2007 IEP.

On April 9, 2007, Parents forwarded a list of concerns regarding procedural issues they felt were not resolved or handled in a timely manner. Amherst responded to Parents’ Concerns on April 17, 2007. All concerns are addressed in this section of the Decision:

1. Parents raised concerns regarding a clerical error made by the BSEA administrative staff regarding a subpoena for production of specific school record involving accident reports, “Summer 2006 meeting notes with school administration Speech and Physical Therapy Reports.” Amherst asserts that on three separate occasions after Parent’s initial request for hearing was received, it gave Parents access to Student’s records. Parent claims that she has been denied access to certain documents but she did not identify any specific document claimed to be missing.4 Amherst states that allegedly Parent believes that Student had more accidents in school than those accounted for in the accident reports provided to Parents. Amherst argues that Parent was not able to describe any additional accidents for which Parent could have questioned Student’s paraprofessional, Jesse Turner. Amherst asserts that both the Director of Pupil services and the Superintendent have both indicated in writing that they made the records in the possession of the school available to Parent. Lastly, Amherst asserts that this was discussed during conference calls, and was also addressed at hearing. Although Parent made allegations of missing documents, she has not been able to identify a specific incident that would have triggered creation of the alleged missing document, or otherwise specifically explained what she was referring to. Without specificity or support for Parent’s claim, and in light of Amherst’s personnel’s representations at Hearing, Parent’s claim in this regard cannot be substantiated.

2. Parent alleges that she did not receive the School’s Motion to Quash the Subpoena duces tecum for David Slovin5 , and the record requests attached to Jeanne White’s subpoena6 , until March 8, 2007, after the Hearing had concluded. Parent further alleges that she was denied full access to Student’s records, which were relevant and not voluminous, depriving her of her parental right of access in violation of special education law. She also alleged that,

(a) the school administration’s refusal to schedule the Resolution Meeting is a violation of the BSEA process. According to Parents, some of the issues raised by Parents in the August 2006 Resolution meeting differed from those raised by them in the second request for hearing (ie., NEBA, ABA, evaluation reports). Parents believe that this refusal is wrong and illegal per BSEA Rules.

(b) Parents never received an invitation by mail to a Team meeting held on March 2, 2007, of which she found out about through notes written by Ms. O’ Donovan on March 5, 2007. Parents further noted that the meeting was held in the morning of March 5, when the school was closed due to snow.

Regarding the subpoenas, Amherst stated that because of Parents’ late request for subpoenas, received by witnesses immediately before the hearing, Amherst was left with no choice but to respond with the Motion to Quash late in the process. Amherst states that under BSEA Rules, subpoenas must be requested one to two weeks before the hearing7 , and this was discussed during at least two telephone calls with the Hearing Officers8 . Parents also failed to identify any document sought from Ms. White or Mr. Slovin, the individuals whom Amherst sought to protect, which Amherst had not already made available to Parent. Amherst’s Motion to Quash was received on March 5, 2007, the day before the hearing, and a ruling was issued later that same date and sent via facsimile to the Parties. A copy of the ruling allowing the Motion to Quash, for the reasons raised by Amherst in the Motion, was also made available to the Parties prior to the hearing.

In response to item (a), the school’s refusal to schedule a Resolution Meeting, Amherst stated that it convened a resolution meeting after Parents’ first request for hearing was filed in August 2006 and that the issues on the second request were substantially the same, and these had already been discussed at the first meeting. Relying on language from decisions issued by Hearing Officer Oliver and this Hearing Officer, the school interpreted the requirement to hold a resolution meeting as a pre-requisite to the Parents being able to proceed to hearing, but not as a procedural requirement for the school district. Amherst further argued that there is no penalty under the regulations when a school district fails to conduct the resolution session other than the fact that it is deemed waived. Amherst’s interpretation is found to be correct and consistent with the IDEA mandates regarding Resolution Sessions. (See 20 U.S.C. §1415(f) (1)(B)9 et seq.) Furthermore, Amherst’s position is consistent with the pertinent IDEA regulations found at 34 CFR § 300.510(b)(5),

If the LEA fails to hold the resolution meeting specified in paragraph (a) of this section within fifteen days of receiving notice of parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

Rule I F of the Hearing Rules for Special Education Appeals , provides as follow:

Under the IDEA, a hearing cannot be held in response to a parent’s hearing request until

· The school district has convened a resolution meeting within fifteen (15) days if the date of receipt of the hearing request;10 or

· The parties have agreed to participate in mediation in lieu of the resolution meting; or

· The parties have notified the BSEA in writing that they have waived the resolution session.

If the school district has not resolved the complaint to the satisfaction of the parent within thirty (30) days of the receipt of the hearing request, the hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence. (If the parent does not participate in the resolution meeting or participate in mediation in lieu of the resolution meeting, the hearing will be delayed until the meeting is held.)

Under the regulations and BSEA Rule I F, the resolution meeting is the final informal opportunity the parties are given to settle their differences prior to engaging in the due process hearing. This requirement applies only to hearing requests initiated by parents and in essence prevents parents from proceeding to hearing until, and unless they have participated in said meeting, have waived it together with the school or have opted for mediation instead of the resolution session. Footnote # 1 of the BSEA Hearing Rules for Special Education Appeals explains that the result of a school district’s failure to convene the resolution meeting within fifteen days of receipt of the request for hearing is that the meeting is deemed waived , and this pre-requisite cannot be used by the school district to delay the timelines and prevent parents from proceeding to the hearing11 . This was explained to Parent during the conference call of February 26, 2007 and at the beginning of the hearing on March 6, 2007. Amherst is correct that it has done nothing illegal in not convening the resolution meeting. I concur with Hearing Officer Oliver that nothing in the law or regulations describe a default procedure. In Re: Ann , BSEA # 06-1175, Parent’s Motion for a Default Judgment (2005, Oliver). The IDEA and the federal regulations talk about penalties to the parents regarding the resolution session, but imposes no such penalty on a school district that fails to convene the session, other than relieving the parent from his/her duty to participate as a pre-requisite to the due process hearing. See In Re: Mount Greylock Regional School District , BSEA # 06-6459, 12 MSER 177 (2006). Furthermore, no prejudice to Parents resulted from Amherst not convening the resolution meeting.

Sub-section (b) on the Parents’ list of concerns listed above relates to Parents’ claim that they never received an invitation by mail to a Team meeting held on March 2, 2007, and that they learned of this meeting through notes written by Ms. O’ Donovan on March 5, 2007. Amherst states that Parents did not raise this as an issue at hearing and that raising it on April 9, 2007, after the hearing concluded, was too late. This decision on issues raised by the parties, addresses only issues listed by the parties and handled at hearing. The Parties are barred from raising new issues after the conclusion of the Hearing. Amherst’s objection in this regard is sustained.

3. Parent is unclear why the school’s attorney objected to Dr. Elizabeth Pawlikoski’s reports as part of Parents’ exhibits since she hand delivered the document to the school administration on 2/27/07, and states that a meeting was held on March 2, 2007 to discuss evaluation reports, though she was excluded from participation. In its response, Amherst explained that Parent delivered Ms. Pawlikoski’s report to Amherst as part of Parents’ exhibit book, and not separately. The exhibit book was delivered to the district, not the attorney representing Amherst. As Ms. O’Donovan testified, the Team meeting of March 2, 2007, was not convened to review Dr. Pawlikoski’s report, but to review an independent occupational therapy evaluation.12 Amherst further states that it named Dr. Pawlikoski in its list of witnesses, [and] had subpoenaed her and attempted to contact her when she failed to respond to the subpoena. Messages for Dr. Pawlikoski were left by the Hearing Officer, and other BSEA staff. Amherst asserts that it had a right to cross-examine the witness regarding the content of the two reports and had the right to object to inclusion of the reports when Dr. Pawlikoski did not respond to the subpoena [or] make herself available. When Amherst first raised its objection to admission of the documents regarding Dr. Pawliloski, the objection was sustained, but Parent was advised that her right to renew the request to introduce the documents in evidence was preserved so long as Dr. Pawlikoski made herself available for cross-examination at hearing. Admission of these documents would be prejudicial to the district. In spite of multiple attempts by this Hearing Officer and others to contact Dr. Pawlikoski during both days of hearing, all efforts were futile. For these reasons, Amherst’s objection was sustained and the exhibits excluded.

Additionally, Amherst objected to the statement of Jessica Gladu and Martha Lewin, attached to Parents’ closing brief, on the basis that both of these individuals were designated witnesses of Parents but did not make themselves available to testify and were not subject to cross-examination at the hearing. Amherst argued that as witnesses for Parents, Parents had a responsibility to contact both individuals and ensure that they were available to testify during the two days of hearing. Amherst’s objections to admission of the two documents in evidence is sustained, and both statements are excluded from evidence for the reasons raised by Amherst. At Parents’ request, the BSEA issued subpoenas for both of these individuals on February 28, 2007, Ms. Gladu’s, received on March 2, 2007, and Ms. Lewin’s on March 1, 2007, received on March 5, 2007, at the addresses provided by Parents. Parent further requested that the testimony of Martha Lewin be taken via telephone conference call, and this request was granted. In spite of multiple attempts and messages left by the hearing officer and other BSEA personnel to reach them, neither of them was available for hearing. Introducing information by both of them after the hearing concluded, thereby depriving Amherst of its right to cross-examine the witnesses, would be unfair and prejudicial to Amherst; therefore, the documents were set aside and excluded.

HEARING ISSUES:

1. Whether the IEP proposed for Student by Amherst-Pelham, for the 2006-2007 school year, if fully implemented, is capable of offering Student a free appropriate public education (FAPE) in the least restrictive environment appropriate to meet his needs? If this program is inappropriate,

2. Whether in order to receive a FAPE Student requires the home program selected by Parent which would be run by NEBA as well as have Amherst provide additional:
(a) occupational therapy services

(b) physical therapy services

(c) home and community based ABA programming

(d) eight weeks of extended school year programming?

3. If additional occupational therapy, physical therapy, and speech therapy services are required, whether Student is entitled to compensatory services for occupational therapy, physical therapy, and speech therapy services not provided? [Parent failed to state the time period for which she seeks compensatory services for Student. In reading her request for hearing it seems that she may have intended the 2006-2007 school year to date, which is before me, and the summer of 2006. Parent’s compensatory claim request was therefore limited to this time period]

4. Whether Amherst has repeatedly violated Student’s IEP in that it failed to deliver occupational therapy, physical therapy, and speech therapy services as well as extended day programming in contravention of the accepted portions of Student’s IEP for the 2006-2007 school year?

5. Whether Parent is entitled to reimbursement for travel and educational program expenses associated with the summer program for the summers of 2005 and 2006?

POSITION OF THE PARTIES

School’s Position:

Amherst asserts that Student has made effective progress over the past years. It states that it offered Student an appropriate IEP for the 2006-2007 school year, which provides him school-based services while providing access to the community and pre-vocational skills. This IEP amply meets Amherst’s requirements for providing FAPE to Student. The IEP offered a plethora of services, which would be provided by highly trained and qualified individuals who are willing to work together to improve the program as needed, including ABA training during the after-school portion of Student’s program to address daily living skills. Amherst denies that Student is unsafe at the middle school or that he would be unsafe in the high school. According to Amherst, Student’s injuries were infrequent, not severe, and a result of Student’s significant spatial awareness issues. It maintains that it has provided training to Student’s staff, and is committed to continue this training into the future. Amherst states that it has little control over the turnover of paraprofessionals but remains committed to ensuring that Student has the staff necessary to provide him services, and that it will train this staff. To address the turnover issue, Amherst supports having multiple paraprofessionals in the school and after-school programs and maintains that this will not interfere with consistency in the delivery of services because of the high level of communication and frequent meetings among the staff. It denies Parents allegations that the school is an unsafe environment and states that it will provide quiet areas for Student’s therapies when needed. Amherst also states that the reduction in OT and PT are warranted and in no way deprive Student of a FAPE.

As part of its IEP, Amherst incorporated opportunities for Student to transition over time from the middle school building to the high school building to help acclimate him to the new environment and staff. While Student would continue to have opportunities for socialization, his services would be offered in a substantially separate classroom. Although not reflected in his IEP, an ABA consultant to Amherst would design and train staff regarding daily living skills, especially around toileting issues.

Regarding the summer 2006 program, it asserts that Student only required six weeks which is consistent with what he received in the past, and that although not all of its staff (OT person) was available during the first week, it intended on making up missed services. It states that the summer staff hired to assist Student remained employed, ready, willing, and able to offer Student’s services even after Parents removed him from the program. It contends that the length of the after-school program was in keeping with previous IEPs, which offered Student two hours per day.

Amherst argues that the program proposed by Parents would be too fragmented and overly restrictive for Student who, up to this point, has done well in school-based programs.

Parents’ Position:

Parents are dissatisfied with the program offered to Student for the ninth grade, the 2006-2007 school year, as well as the services offered during the summer of 2006. They state that Student’s program is chaotic, segmented, and unsafe for Student. They view the departure of Student’s paraprofessional of several years in June 2006 as a great contributor to the current dysfunction of the program. They take issue with the proposed reduction of PT and OT reflected in the rejected IEP, for the 2006-2007 school year, and are adamant about Student not being placed in the high school, which they consider to be an unsafe environment for their child. Parents believe that there has been an increase in injuries suffered by Student during school hours, which Amherst is covering-up. Parents attribute the increase in Student’s accidents to the numerous paraprofessionals Student had in 2006-2007, the high turnover of paraprofessionals since the 2006 summer, poor training, and lack of consistency. Parents also note a decrease in peer interaction and a loss of skills since the past summer.

Parents assert that Amherst is out of compliance with what Student is entitled to receive in his summer program. First, they argue that the program should be eight, not six-weeks, long. Second, they believe that the necessary personnel was not hired or was poorly trained, as a result of which Student did not receive the OT and PT services he was supposed to receive. Third, they state that in 2006, the after-school portion was shorter than it should have been and that it consisted of “baby-sitting” services rather than a real program where Student could go into the community. According to them, Student was “warehoused” while others participated in community activities. As a result of Amherst’s transgressions, Parents pulled Student out of the summer program and are seeking reimbursement for the cost associated with putting together a summer program for Student themselves.

Parents want Amherst to fund, supervise, and coordinate a home/community-based program, with an ABA component, designed by Parents and New England Business Associates, and that the school provide the OT, PT, speech, and sensory therapies for Student. They want Student’s skill training to occur in natural settings to facilitate generalization of skills.

FINDINGS OF FACT

1. Born on, December 25, 1991, Student is a fifteen (15) year-old resident of the Amherst-Pelham Region in Massachusetts. (SE-1) His eligibility and entitlement to special education are not in dispute.

2. Student has been diagnosed with a Global Developmental Delay, and a May Institute evaluation in 1997 concluded that autism was also a relevant diagnosis. (SE-1; PE- 38) Student attended the Fort River School in Amherst, MA, for elementary and middle school. (Testimony of Parent). In the past, Student was also diagnosed with Pervasive Developmental Disorder, NOS, Severe Mental Retardation, and Chronic Encephalopathy. (PE-1) As a result, Student presents with sensory-motor issues. (PE-38) Student’s pediatric neurologist has also diagnosed him with ataxia and a coordination disorder. Student also has a history of seizures. (PE-14) Additionally, he presents with Von Willibrand Syndrome, as a result of which he gets persistent nosebleeds that seem episodic. (SE-45) In 1999, Bruce Homstead, a nutrition consultant made recommendations regarding Student’s diet in regard to the nosebleeds. (PE-36) He has been described as a happy, friendly, sociable, easy-going child. (Testimony of Mother, Jesse Turner)

3. At Amherst’s request, James Levine, PhD., LICSW, conducted a Functional Behavioral Analysis (FBA) on June 14 and July 25, 2001. (SE-1) The report, issued on August 1, 2001, was an adjunct to a previous report conducted by Bina Addes, Amherst’s school psychologist, performed in April 2001. This FBA addressed inattention and aggressive behaviors, such as hair pulling and grabbing others and noted that distractibility, rather than aggression, was the primary concern. Student was nine-years-old at the time of this FBA. Student was observed to display a short attention span. Dr. Levine noted the special connection between Student and his summer paraprofessional, Jesse Turner, who seemed to intuitively anticipate Student’s behavior, successfully avoiding problems. (SE-1) Transitions were not reported to be a problem and school staff reported improvement in Student’s ability to wait as a then recent gain. The summer teacher, Ms. Reyes, reported that the structure, small group, and high staff to student ratio of the summer program benefited Student. Jennifer Good (two days per week paraprofessional during the 2000-2001 school year), Sandy Davis (second grade teacher), and Annette Pfannebecker (speech pathologist) all noted that distractability was the major concern and agreed that Student’s behavior was not unmanageable. Dr. Levine did not recommend a formal behavioral intervention at the time, but rather found that a more consistent approach was highly necessary. He recommended a Gentle Teaching Approach, which followed an “Ignore, Redirect and Reward” model. He did not recommend a strong approach on self-care skills. Based on his observations, Dr. Levine did not believe that autism was a primary diagnosis but recommended that approaches followed with autistic children be used. He also suggested incorporating Student’s Occupational Therapist’s recommendation given that Student was beginning sensory integration therapy. ABA intervention should be monitored so as to build on it accordingly. (SE-1) Dr. Levine recommended implementation of a home-school notebook focused on observable behaviors, to address self-care, concrete behaviors and academic tasks, as well as close communication and monthly meetings among the school staff. Dr. Levine stated that:

[Mother’s] concerns about staff support and training are warranted by the demands and complexity of working effectively with [Student]. This seems especially true in terms of his individual paraprofessional(s), who will be involved in the bulk of his programming. Monthly team meetings that are geared to problem solving, program adaptations, and reviewing interventions would likely be beneficial to all staff. (SE-1)

4. On August 19, 2001, the Center for Autism and Related Disorders, Inc. conducted an initial workshop with Student’s service providers in Amherst. (PE-7) The focus of the program was on behaviors (reduction of hand-flapping), work on fine and gross motor skills, compliance, matching, non-verbal imitation, coloring, play skills, receptive commands, self-help, and verbal imitation. PECS, Block Imitation, eye contact and a sensory diet would be introduced later. (PE-7)

5. Progress notes submitted on January 29, 2002 by Carol Cochrane, MS, Physical Therapist, state that Student was working on balancing skills, and also on carrying and moving items to increase coordination. (SE-2) Ms Cochrane reported that with the help of his paraprofessional, Student had expanded his play outdoors, and could swing with assistance, climb on the play structures, and use the slide with minimal assistance to ensure safety. (SE-2)

6. Student’s IEP for the period from April 9, 2002 to June 30, 2002, reflects that Parents requested an increase in Student’s participation in the general education curriculum areas. (SE-3) Student’s recognized areas of disabilities are listed as neurological impairment, PDD/NOS, mental retardation. The grid shows that two and a half hours of weekly consultation between the paraprofessional and the classroom teacher with the special education teacher, the language therapist, the physical therapist, the autism consultant and the occupational therapist, was provided. Direct services in the classroom included 3 x 45 minutes per week communication skills, Physical Therapy 1 x 30 minutes per week, intensive special education 5 x 306 minutes per week, and Occupational Therapy 2 x 30 minutes per week in addition to 1 x 30 minutes per week to monitor feeding skills. Parent accepted the IEP via a settlement agreement. (SE-3) Under direct services in other settings, Student received: physical therapy 1 x 30; feeding program 5 x 5 minutes per week; sensory integration 1 x 30 minutes per week; assistive technology services 1 x 30 minutes per week; ABA 10 hours per week (two hours per day in school program and two hours per day in after-school program depending on Student’s level of tolerance); and 5 x 120 minutes extended day program weekly (i.e., two hours per day). Participation in a six-week long, eight hours per day, five days per week, summer program was also offered. (SE-3) Parents accepted this IEP as part of a settlement agreement. ( Id. )

7. On April 26, 2002, Parents agreed to an on-going evaluation and use of behavior modification therapy techniques by the River Street Autism Program. (SE-4) Student received ABA services until September 2002 when the formal de-contextualized discrete trials ABA training was discontinued because, according to Dr. Kathy Dyer, Student was not making progress and was exhibiting significant distress during the discrete trials. (SE-9) Instead, teaching/training modules of functional skills, based on Student’s IEP goals would be provided. Training for Parents and Student’s paraprofessional was offered. (SE-9)

8. At a continuation Team meeting on June 12, 2002, Parents requested that Student attend a fully inclusive program in his neighborhood school, Fort River. Parents also expressed a preference for the focus of the program to be on social and integration activities rather than on academic goals. (SE-5) School personnel recommended that Student be placed at the Wildwood School. There, he could participate in a special program for students with intensive needs, taught by a teacher of children with intensive needs with a background in autism, where multiple professionals were available to Student when his paraprofessional was absent, and where Student would have access to a sensory integration area, assistive technology center, and a room for ABA. Parent disagreed and instead offered to provide sensory integration activities outside of the school day. She expressed no interest in Student attending the assistive technology center. Ultimately, the Team recommended the intensive program at the Wildwood School, which the Team opined was better suited to meet Student’s needs. (SE-5) The IEP covering the period from May 21, 2003 through May 21 2003, reflecting placement at the Wildwood School was rejected by Parents on June 28, 2002. (SE-6) During the 2002-2003 school year, Student attended an inclusion program at Fort River School and an after-school program also held at Fort River School. (SE-17)

9. During the summer of 2002, Student received up to two hours of ABA daily. He continued to work on self-help skills, and on placing material away at clean up time. He was observed to express facial gestures, increase his ability to sit for longer periods, become more aware of spatial boundaries and gain better control of bodily movements. He also worked on the concept of “more”. (SE-8)

10. Progress reports for the 2001-2002, 2002-2003 and 2003-2004 school years and summers reflect that overall, Student made progress in most of the goals reflected in his IEP. (SE-7; SE-10; SE-13; SE-21; SE-23; SE-24; SE-29; SE-35) Throughout these periods, monthly meetings to discuss Student’s progress were held. At the November 2002 meeting, Parent identified speech as the area in which Student made the least progress. (SE-10)

11. On January 23, 2003, Mike Kostoroski completed Student’s Educational Assessment as part of a re-evaluation. The report states that Student has attention difficulties, which improve in one-to-one situations. Mr. Kostorski stated that Student attempted to participate appropriately in class but that his communication and interpersonal skills were not age appropriate. (SE-12) He noted that Student’s paraprofessional was largely responsible for Student’s growth as he was in-tune with Student and knew when to push him and when to wait. The paraprofessional deeply cared about Student and attempted to integrate him into the classroom as much as possible. Mr. Kostoroski further noted that Jesse Turner’s caring went beyond the call of duty and did not begin and end with the school day. (SE-12)

12. Student’s Team met on January 30, March 4, and April 1, 2003 to review Mr. Kostoroski’s and other school-based evaluations. (SE-11; SE-15; SE-16) The occupational therapy (OT) and physical therapy (PT) re-evaluations dated March 27, 2003, noted gains and recommended the continuation of OT services three times per week for thirty minutes each, and PT twice per week for thirty minutes each. (SE-14) The educational evaluation performed by Gethe Camp, the intensive special education teacher, discussed Student’s gains and commented on his low score in the area of functional communication as a result of Student’s limited expressive communication. Ms. Camp noted the continued need for a one-to-one paraprofessional. (SE-17) After canceling a Team meeting in May 2003, Student’s Team also met on June 3, 2003 to discuss Student’s IEP for the following school year. (SE-19; SE-20)

13. Amherst forwarded Student’s IEP for the period from April 1, 2003 to April 1, 2004 on June 3, 2003. (SE-18). The IEP offered Student placement in a full inclusion program at Fort River School with an after-school component, a one-to-one paraprofessional and participation in a summer program. (SE-18; SE-21) The program ran eight hours per day pursuant to a BSEA hearing decision. (SE-18)13 The Progress notes dated June 3, 2003 state that Student is well liked by peers and several students have requested to be put in the same class with Student for the sixth grade. Drooling continues to be a concern for the family. Student will attend a six-week summer program. (SE-21)

14. Student’s Team met again on September 9, 2003. (SE 25) Student was introduced to his new Team and it was agreed that the Team would meet monthly to discuss progress. (SE-26) The Team met again on September 19, 2003, March 18, and April 7, 2004. (SE-27; SE-28; SE-30; SE-31; SE-32) Following the April 7, 2004 meeting, Parents agreed on April 14, 2004 to extend Student’s then current IEP from April 1, 2004 through May 7, 2004. (SE-33)

15. Student began the sixth grade in the integrated program at Fort River School. (SE-38) Student’s Team met on December 5, 2004. (SE-34)

16. Physical Therapy progress notes dated May 6, 2004 show that progress continued and recommended physical therapy for the same amount and frequency as in the year before, direct services, twice per week for thirty minutes each and fifteen minutes consultation weekly. (SE-35)

17. Student’s Team met on May 7, 2004. (SE-36; SE-37) An IEP covering the period from May 7, 2004 to May 6, 2005 was developed. This IEP lists Autism and Global developmental delays as Student’s areas of disabilities. This IEP, which offers Student a partial inclusion program, comprises two different service delivery grids, one for sixth grade and one for seventh grade as follow,

Service Delivery for sixth grade May 7, 2004 – June 23, 2004

A. Consultation

Goals # 1-8 – Special Education – Special Ed. Teacher – 1 x 45 min.

Goals # 5, 6 – Speech and Language – L.S.H. Staff – 1 x 30

Goal # 8 – Physical Therapy – R.P.T. – 1 x 30

Goal # 8 – Occupational Therapy – O.T.R./L. – 1 x 30

B. Special Education and Related Services in General Education Classroom

Goals # 1-8 – Special Education – Paraprofessional & Special Ed. Teacher – 5 x 319

Goal # 8 – Physical Therapy – R.P.T. – 1 x 30

C. Special Education and Related Services in Other Settings

Goal # 5 – Speech and Language – L.S.H. Staff – 4 x 30

Goal # 8 – Physical Therapy – R.P.T. – 1 x 30

Goal # 8 – Occupational Therapy – O.T.R./L. – 1 x 45 and 1 x 30

Goals # 1-8 – Summer Program – Special Ed. Staff – 8 hrs/day x 5 days/week

Service Delivery for seventh grade September 1, 2004 – May 6, 2005

B. Special Education and Related Services in The General Education Classroom

Goal #4 – Social Studies/Science – *Special Ed./Gen. Ed. – 5 x 40

Goals #1-8 – Academic Support – *Special Ed./Gen. Ed. – 5 x 105

C. Special Education and Related Services in Other Settings

Goals # 5,6 – LSH – LSH – 4 x 30

Goal # 8 – PT – R.P.T. – 2 x 30

Goal # 8 – OT – O.T.R/L – 1 x 30 & 1 x 45

Goal # 3 – Math – *Special Education – 5 x 40

Goal # 2 – English – *Special Education – 5 x 40

Goals #1-8 – Academic Support – *Special Education – 5 x 79

(*Paraprofessional or Special Education Teacher).

After reminding Parents on August 19, 2004, that Student’s IEP had not been signed, Parents partially rejected the IEP on September 29, 2004. (SE-38; SE-40) Parents opined that the OT session should include sensory integration, the IEP did not specify the frequency of shopping trips in goal #1, and the Service Delivery Grid needed to reflect what Student was receiving at the time. (SE-38) Parents further stated that Student’s day was supposed to end at 5:30 p.m. pursuant to a BSEA decision issued a few years earlier. Parents accepted the placement decision for Student to attend a partial inclusion program at the Fort River School. (SE-38)

18. By June 2004, in the cognitive domain, Student could follow a number of one-step directions, was developing more awareness of the building, and his ability to focus and follow direction continued to grow. (SE-39) In Language Arts, Student could sequence the letters in his name when given one letter at a time. He could stamp his name, turn the pages in a book, and listen to stories on the computer. Student was also leaning to engage in writing activities using “Intellikey”. In Math, he engaged in counting and purchasing activities with hand-over-hand prompting. In Science and Social Studies, Student participated in hands-on activities. While making posters, he colored and pasted, and also assisted in assembling the ecosystem with hand-over-hand guidelines. He was noted to sit appropriately during lectures. Regarding Communication Skills, a speech/language evaluation by the River Street School Autism Program revealed a severe communication disorder secondary to Student’s PDD/NOS, severe mental retardation, autism, chronic encephalopathy, and Attention Deficit Hyperactivity Disorder. (SE-39) Student was noted to learn routines and functional communication skills most appropriately when taught within the natural context, and was by then able to follow one-step commands and follow routines within context. He had increased his frequency and range of vocalizations, could approximate “hi”, and could at times, using the Pictorial Exchange System (PECS) choose the Pictorial Exchange Card (PEC) for the computer correctly. (SE-39) He also used the PECS correctly to request brushing of different body parts. Student was also more aware of and attentive to the environment. Student also met with success regarding Oral Motor Control. He continued to respond positively to stimulation around the lips, cheeks, jaw and base of the tongue as he allowed more intra oral stimulation with a variety of oral motor tools. He could blow a whistle and harmonica, and showed more range of motion with his tongue and jaw. Student was also showing closure of lips for longer periods of time during speech therapy sessions. To address Socialization and Behaviors, Student was involved with a variety of activities with peers while shadowed by a one-to-one paraprofessional for safety. He moved around the building with peers as the socialization and behavior goals were addressed in the classroom, playground and during therapy sessions. Student was observed to demonstrate his interest in an activity by vocalizations and through the level of participation. Student worked very hard on his goal to address increased independence in school environment/functional and mobility skills. Fine motor activities increased most notably in the area of holding and using writing utensils, as well as with self-feeding skills. Using an adapted scoop and bowl, he could hold a spoon for an entire meal independently and scoop to self-feed with only elbow support. He continued to work on wiping his mouth, biting small pieces and swallow patterns. With the support of his one-to-one, he participated fully in physical education, which was adapted as needed. (SE-39) He was also able to open doors that had minimal or moderate resistance. Over the following year, Student would continue to work on all of the goals previously mentioned which would be adapted as needed to middle school. (SE-39)

19. Student’s Team met on September 28, 2004 to address the rejected portions of Student’s IEP. (SE-42) At the meeting, there was an oral presentation of the evaluation procedures, records, tests, and reports used as the basis for the proposed action. ( Id. )

20. Progress reports of October 2004 noted satisfactory progress being made in goals #1 Cognitive, #2 Language Arts, #3 Math, #4 Science and Social Studies, #5 Communication Skills, and #6 Oral Motor Control. (SE-41) In all of these areas, progress observed was expected to be sufficient to enable the student to achieve the annual goals by the end of the IEP period. No information was provided for goal #7 addressing Socialization/Behaviors, although the report notes that Student is involved in a variety of activities with peers who had become more responsible in involving him. Notes addressing goal #8, Increased Independence, indicate that Student was improving in the target areas, such as climbing stairs, negotiating space in hallways, and he independently entered C1, his classroom. He was beginning to learn the routine of bringing the attendance to the office. He also followed one-step directions from peers during leisure activity and lunch, as well as during classes. While increased independence was observed, the observer was unable to determine if it would be sufficient to enable the student to achieve the annual goal by the end of the IEP period. In the area of Goal #8, addressing functional and mobility skills, gross motor/ physical therapy, progress was on-going but improvement would be needed in order to meet the goal by the end of the IEP period. (SE- 41)

21. Amherst forwarded to Parents an IEP Amendment14 , on November 19, 2004, addressing the rejected portions of Student’s IEP. (SE-42) The IEP covered the period from September 28, 2004 through June 15, 2005, offering Student services at the Amherst Regional Middle School for the seventh grade. The IEP provided Student the following services:

A. Consultation

Service – Staff – Frequency and duration/per cycle

Goal #8 – PT – R.P.T. – 1 x 15

Goal #8 – OT – O.T.R/L. – 1 x 15

B. Direct Service in the General Education Classroom

Goals #1-8 – Functional Academics – *Special & Gen. Staff – 5 x 145

Goals #7, 8 – P.E. – * Special & Gen. Staff – 5 x 60

Goals #1, 7 – Advisory – * Special & Gen. Staff – 5 x 20

Goals #5, 7 – Integrated Studies – *Special & Gen. Staff – 5 x 75

C. Special Education and Related Services in Other Settings

Goals #1-8 – Functional Skills – Special Ed. – 5 x 92

Goals #5,6 – Speech & Language – L.S.H. Staff – 4 x 30

Goal #8 – Physical Therapy – R.P.T. – 2 x 30

Goal #8 – Occupational Therapy – O.T.R./L – 2 x 30

Goals #1-8 – Extended Day – Special Ed. – 5 x 150

(*Paraprofessional or Special Education Teacher). On December 22, 2004, Parents accepted the IEP and placement.15 (SE-42)

22. The December 2004, January 2005, March 2005, May 2005 and June 2005 progress reports state that Student was making sufficient progress in regard to Goal #1, Goal #2, Goal #3, Goal #4, Goal #5, Goal #6, Goal #7, and Goal #8. (SE-43; SE-44; SE-49; SE-54; SE-55) For example: he participated in a daily brushing program and practiced taking socks and shoes on and off; bushed his teeth daily and distributed mail to staff slots with guidance; listened to books on tape, books read by a peer in a 1:1 situation and during small group activities (during these activities his attention varied from falling asleep to being very active and listening attentively); used his name stamp with varying amounts of physical assistance; placed pretend coins into slots independently when motivated, but required assistance when putting coins into a vending machine; collected cans for recycling daily, washed and crushed the cans; enjoyed watching cooking activities; used the computer mouse with assistance to access the internet; cut paper using adapted scissors; colored and pasted as part of group projects; inconsistently vocalized to request a snack; used the PECS to request bubbles, scarves or sticks (although he still could not discriminate the symbols or objects used in stage 1 of the system); independently greeted people with a hand-shake or gave a high five; increased his imitation of lip smacking and closing when already engaged in eating; participated very well in range of motion and strengthening exercises; responded to one-step direction from peers such as “stand up” or “sit down” (Student’s independence varied depending on distractions in the hall and his ability to focus); improved in opening and closing doors (except that doors with knobs continued to be a challenge); showed progress in getting dressed. (SE-43; SE-44) The progress report for goal #8 noted that improvement was needed, and that progress was not sufficient to enable Student to meet this goal by the end of the IEP period. (SE-43) In contrast, the progress report for January 2005, anticipated that Student would not meet the goals in his IEP for goal #1, as he required more than 4 physical prompts, but would achieve goal #8. (SE-44; SE-49; SE-54; SE-55) The January 2005 report also states that Student participated in a daily brushing program and practiced taking socks and shoes on and off; enthusiastically brushed his teeth daily although it was a physical struggle. (SE-44) By April 28, 2005, Student’s independence in the school environment and functional mobility skills had improved especially as to balance and motor planning. (SE-50) Eye contact and wiping his mouth also improved with verbal cues, and opening doors also improved since Student began wearing cycling gloves, which gave him a better grip on the door handle. (SE-50) By May and June 2005, Student was more independent at using a large red switch to activate a story on tape or on the computer, and he consistently hit the switch to hear the rest of the story. (SE-54; SE-55)

23. Student’s Team met on February 16, 2005, to discuss his progress, which was reported to be good in all areas. (SE-45) The meeting notes indicate that Student has Von Willibrand Syndrome, which is mostly found in women and in only 1% of the population. As a result, he gets persistent nosebleeds that seem episodic. Parent stated that Student had a new medication to address this issue. During the meeting, the Team expressed concern that the IEP did not reflect that the focus of Student’s participation in general education was socialization, and that the IEP goals focused on special education. (SE-45) All agreed that it should be changed. Also, since Student had so many benchmarks in his IEP, consistency, which was essential to Student’s learning, would be achieved by focusing on sensory integration, communication, inclusion with peers, and daily living skills. (SE-45) On February 16, Parent signed a consent form for Student’s ADL skills and functional skills to be assessed. (SE-46)

24. Amherst conducted Student’s Function Assessment in March 2005. (SE-47) The assessment was performed by Denise O’Donovan (Special Education Liaison and teacher of children with intensive special needs, see SE-108), Kari Ann Pepe (physical therapist), and Jesse Turner (the paraprofessional assigned to work with Student). (SE-47) Student was thirteen years old at the time of this assessment. The summary of student’s scores showed that:

Using Materials – [Student] scored at a 2 or 3 on tasks that involved manipulation of solid objects. He was unable to perform tasks that required more fine motor skills. It is difficult for [Student] to perform tasks that involve paper, as he is more interested in crunching it.

Setup and Cleanup – [Student] scored at a 2 or 3 on tasks that involved manipulation of solid objects. He is able to be more involved in setup and cleanup when it occurs on a consistent basis. He was unable to perform tasks that required fine motor skills or care to not spill.

Eating and Drinking – [Student] scored at a 3 or 4 on eating and drinking regular foods within allotted time. He had difficulty on the steps of eating and drinking without spilling, using utensils and napkins.

Hygiene – [Student] scored at a 2 or 3 for washing and drying hands. He was unable to perform skills related to toileting, nose care.

Computer and Equipment Use – [Student] scored a 4 on using a switch with the computer as well as attending to the computer. He was unable to perform skills regarding keyboard use.

Functional Communication – [Student] scored a 3 for communicating yes/no, acceptance/refusal choice. He does this primarily through affect, pushing undesired items away, choosing between desired and non-desired object. He was not able to perform other communication skills.

Memory and Understanding – [Student] has some understanding of one step directions, as well as partial memory for routines, location of items, classroom. He is unable to demonstrate understanding of memory for two-step directions or things that do not occur consistently.

Using Social Conventions – [Student] is able to smile as a greeting, keep social boundaries. He is not aware of other social conventions (eating, manners, privacy, etc.).

Compliance with Adult Directives and School Rules – [Student] is typically cooperative and will follow peers in activities and transitions.

Task Behavior / Completion – [Student] is able to complete a task, attend, sit quietly with adult support when motivated to do so. He is not able to work independently.

Positive Interaction – [Student] responds appropriately to social interactions from both staff and peers. He will initiate interactions with a smile, hand- shake, high 5, physical presence, and vocalization.

Behavior Regulation – [Student] accepts changes in routine, maintains behavioral control. He does not have an understanding of conflict and conflict resolution.

Personal Care Awareness – [Student] is unaware of most personal care issues and requires physical assistance to complete tasks.

Safety – [Student] typically keeps things out of his mouth, although he is not aware of safety issues and will on occasion put items in his mouth. He is unaware of safety. (SE-47)

25. Ms. O’Donovan testified that she consulted with Sara Wilson, Student’s speech and language pathologist, Irene Denery, assistive technology, Kari Ann Pepe, physical therapist, and Arice Staeb, occupational therapist, frequently. She also consulted with Jennifer McIntire16 and Ms. Olsen, the autism consultants. (Testimony of Ms. O’Donovan, Ms. Pepe)

26. On March 8 and 15, 2005 Student participated in a Physical Therapy Evaluation with Kari Ann Pepe, MPT. (SE-48; Testimony of Ms. Pepe) The evaluation showed that Student had made progress in most areas (although his performance was inconsistent) of the Physical Therapy portions of the School Functional Assessment, including travel, maintaining and changing positions, manipulation with movement, clothing management, and going up/down stairs. The one exception was recreational movement where some areas were not tested as they related to activities outside the school. Throughout this IEP period, Student participated in physical education class with his peers, and was assisted by his paraprofessional. As a result of the evaluation, Ms. Pepe recommended the continuation of PT services 2 x 30 minutes weekly, and consultation at 1 x 10 minutes weekly. Goals and benchmarks for the next IEP period would be discussed at the next team meeting. (SE-48; Testimony of Ms. Pepe)

27. Student’s Team reconvened on April 12, 2005, as a result of which an IEP Amendment dated May 19, 2005, addressing Student’s summer services, was promulgated. Summer services would be offered between July 5 and August 12, 2005. (SE-51) The summer program offered:

Service – Staff – Frequency and Duration per Cycle

Goals #5, 6 – Summer Speech & Lang. – Speech/Language Pathologist – 2 x 30

Goal #8 – Summer OT – OT – 1 x 30

Goals #1, 2, 3 – Summer Academic – SPED Staff – 4 x 120

Goals #5, 7 – Summer SPED Services – SPED Staff – 5 x 234

Goals #8 – Summer PT – PT – 2 x 30

Goals #1-8 – Summer/ extended day – SPED Staff – 5 x 150

28. Parents accepted this amendment on May 19, 2005. (SE-51) A draft summary of the proposed IEP dated May 18, 2005 states that Parents were concerned about the middle school experience and they requested that Student attend the elementary summer program and continue with the community involvement. (SE-52) Parents were also concerned about safety issues as Student bumped things, or could fall within the school and when in the community. The major goals to be worked on were: improving body awareness; pursuing goals around eating; and exploring more than eye gestures, and/or smiles to initiate interaction with others. (SE-52) The providers would search for a balance between Student’s goals for independence and his safety. ( Id. ) The draft also notes a documented increase in nosebleeds at home and on occasion at school, which are not the result of impact but rather of Student’s Von Willibrand Syndrome. It was suggested that Student obtain a medical alert bracelet to use when he was in the community. Blood thinning foods, such as onion17 , should be cut out of Student’s diet. (SE-52; Testimony of Mother) The full IEP for Student’s 2005-2006 school year was forwarded to Parents on June 29, 2005. (SE-53)

29. The proposed IEP for period from May 18, 2005 through May 17, 2006, offered Student a partial inclusion program at Amherst Middle School. (SE-52) Parents accepted this IEP in full on August 15, 2005. This IEP offered the following services:

A. Consultation

Type of Service – Type of Personnel – Frequency & Duration Per Cycle

Goals #1-5 Team Consult OT, PT, SLP, Teacher, Paraprofessional 1 x 30/monthly

Goal #4 General Ed. Consult SPED teacher

B. Special Education and Related Services in General Education Classroom

Type of Service – Type of Personnel – Frequency & Duration Per Cycle

Goal #4 Functional Academics *Special & Gen. Ed. Staff 5 x 145

Goal #4 P.E. *Special & Gen. Ed. Staff 5 x 60

Goal #4 Advisory *Special & Gen. Ed. Staff 5 x 20

Goal #4 Integrated Studies *Special & Gen. Ed. Staff 2 x 75
(*Paraprofessional or Special Education Teacher)

C. Special Education and Related services in Other Settings (Direct Services)

Type of Service – Type of Personnel – Frequency & Duration Per Cycle

Goals #1, 3, 5 Functional Skills Special Ed. 5 x 92

Goals #1, 3 Speech & Language L.S.H. Staff 4 x 30

Goals #1, 2, 5 Physical Therapy R.P.T. 2 x 30

Goals #1, 2, 5 Occupational Therapy O.T.R./L. 2 x 30

Goals #1, 5 Extended Day Special Ed. 5 x 150

30. As with previous IEPs, this IEP reflects that Student requires a summer program to prevent regression and loss of skills. (SE-53) Student’s schedule is extended to accommodate the two and a half additional hours per day for the extended program. Amherst was to be responsible for training the summer and extended day staff. All coordination required to achieve consistency was to be done at the end of the school year and prior to the extended day program. On August 15, 2005, Parents accepted this IEP and placement. (SE-53)

31. The OT progress report dated June 17, 2005 states that Student improved his upper body control and strength, and that he consistently wiped his mouth with simple prompting. (SE- 56) The Communication skills goal (#5) dated June 20, 2005 states that Student used PECS to indicate which body part he wanted brushed, and that his vocalizing to request a snack and drink had increased. to oral motor control, the exercises continued and lip closure was achieved primarily when food was used and when prompted with imitation. (SE-57) He was also cued toward the end of the trimester on using a cloth to wipe his mouth when swallowing, which is when most discharge occurred. (SE-57) Overall, Student worked hard and progress was evidenced in all areas. (SE-43; SE-44; SE-49; SE-54; SE-55; SE-56; SE-57)

32. Student continued at Amherst Regional Middle School for the eighth grade. (SE-53; SE-58) The progress reports dated October 13, 2005, state that in Language Arts/Communication, when focused, Student could take an object, give it to a person and return it, with one verbal prompt per step. Student was also beginning to follow basic directions within predictable routines and to follow a class schedule. He continued to have problems with the command “stop.”(SE-58) In Functional Life Skills, satisfactory progress was noted although in a structured setting Student required assistance to wipe his mouth, occasionally doing so independently, and required physical prompts to eat finger food one at a time. At the redemption machine, he could independently place the cans in the machine if the bag was held for him. (SE-58) The goal addressing Socialization in General Education states that Student is well liked by peers, and consistently participates in science labs and drama groups. He had a core of “buddies” who sought him out and included him in activities. ( Id .) Student also continued to increase upper body strength, and wiped his mouth when prompted whether in the sitting or standing position. (SE-59) In OT, he displayed more controlled body movement. (SE-61) He continued to work on some of the same objectives identified in previous years, which he had not yet mastered, but overall, on-going progress was noted. (SE-58; SE-59; SE-60; SE-61) He was described by the speech and language therapist as cooperative and willing to work hard. (SE-60)

33. Student’s Team met on November 23, 2005, to discuss Student’s progress and to update his goals. (SE-61) During the meeting, the discussion turned to planning for the following year. Parent stated that she was very pleased with the middle school program, and did not want Student to go to high school the following year. She stated that Student would graduate at age 18, not 22, and that the school system would provide him a vocational placement. (SE-61) Sarah Wilson, the speech pathologist, suggested that Student remain an additional year in the middle school. (SE-61)

34. Student’s progress reports for December 1, 2005, January 23, 2006, March 15, 2006, May 3, 2006, and June 16, 2006, continued to note progress in all areas. (SE-62; SE-63; SE-64; SE-67; SE-71; SE-83) In Language Arts/Communication Student was able to focus and follow basic directions within predictable routines, could engage in cause and effect activities independently using a touch screen, and could make choices between a preferred snack and a non-preferred item. By January, Sarah Wilson reported improvement in using ‘stop’ as a PEC symbol to communicate this to a partner. (SE-63) In activities of daily living (ADL), he followed a task analysis for tooth brushing, sensory brushing, putting on socks and shoes and taking them off with physical assistance on a daily basis. He needed maximum physical assistance in community shopping and cooking class. He also needed assistance to eat, turn water on, and wipe his mouth, as well as with other tasks involving dressing and self-care. (SE-62; SE-63; SE-64; SE-67; SE-71; SE-83) A switch was installed in Student’s computer so he could play a sports computer game with a peer, but since scheduling of a peer was difficult, he typically played with his paraprofessional. (SE-64) Student allowed more intra and inter oral stimulation with oral motor tools. He continued to respond positively to stimulation around the cheeks, lips, jaw, and tongue, and lip closure was improving, while continuing to demonstrate a tongue thrust. He also sat quietly, listened and participated in general education classes and was involved in a variety of activities with peers. (SE-62; SE-63; SE-64; SE-67; SE-71) He enjoyed being with his peers, often greeting them enthusiastically and looking into classes where they were. He stopped at their lockers and followed them between classes. (SE-63) Student was familiar and comfortable in his school setting, and could walk in the halls with close-distant line-of-sight supervision. He knew where his classroom was located. Gains in trunk stability and strength were noted. Student worked on trunk and leg exercises with ankle weights on. Student required one person to give him tactile cues to complete an exercise while another person demonstrated the exercise. He continued to open doors wearing cycling gloves, and displayed the most difficulty in opening the door to the nurse’s office. (SE-62; SE-63; SE-64; SE-67; SE-71)

35. On March 25, 2006, Parent consented to a full evaluation of Student including additional assessments in the areas of “community program” and “assistive technology.” (SE-65) The consent form was received by Amherst on April 5, 2006. ( Id. )

36. Student’s Team met on May 8, 2006, to discuss Student’s summer program and amend the IEP accordingly. (SE-66) The first IEP Amendment, addressing proposed summer programming, was forwarded to Parents on April 7, 2006. (SE-87) On May 11, 2006, Amherst forwarded Parents a second request to respond to the IEP Amendment regarding summer program. The Notice of Procedural Safeguards was sent along with the request. (SE-72) A third request was forwarded on July 12, 2006. (SE-87)

37. Kari Ann Pepe conducted Student’s Physical Therapy Assessment on May 1, 8, and 18, 2006. (SE-68; Testimony of Ms. Pepe) Student was fourteen years old at the time of this assessment. Amherst’s School Functional Assessment (SFA) and the Choosing Options and Accommodations for Children (COACH) were scored by Ms. Pepe, Jesse Turner and Ms. O’Donovan. The SFA revealed that in the area of travel, Student showed consistent performance when moving on flat surfaces; moving across the classroom; moving from one to the next, two, or three classrooms over; moving through doorways or narrow openings; moving in aisles and up/down ramps and inclines; moving on uneven surfaces; being able to keep up with peers for short distances; and entering a room and taking his seat/place without bumping into obstacles or people. Inconsistent performance was noted when he moved through doorways or narrow openings; moved to any location or area within the building; moved around freely without bumping into obstacles; moved on uneven surfaces and maneuvered around dangerous objects; moved through congested areas such as around areas surrounding the school (including parking lots, playground, and driveway); partially performed activities that involved moving over slippery surfaces and required assistance to evacuate the building in case of emergency, something he was unable to accomplish within the time frame required. (SE-68) Overall, he was more familiar with the school’s layout and aware of his environment than in the previous year. In the area involving Maintaining and Changing Position, he was able to maintain adequate posture for at least ½ hour during classroom instruction, could raise himself from a chair or the floor to a standing position, and could board and disembark any type of vehicle. He had difficulty sitting with stability on the floor, on and off the toilet, and moving from the floor to a chair. In the area of Manipulation with Movement, Student was consistent in opening doors with minimal or no resistance, and could move objects, like a chair, along the floor. Inconsistently, he carried small items in one hand, picked up materials from a desk or a table, retrieved items from the floor, carried objects large enough to require both hands, opened and closed doors that required handle manipulation and those that presented with maximum resistance. Student could not carry a tray containing more than one item without spilling, or dropping the tray, and could not place substances that could spill or break on a table without spillage. (SE-68) In the portion of the assessment involving moving up and down stairs, Student was able to perform this task while holding on to one railing with supervision, consistently being able to go up and down a single step (e.g., curb), and up a flight of stairs with 12 steps at consistent, regular speed, sometimes carrying an object. This latter task was an area in which much improvement was noticed over the 2005-2006 school year. His performance walking up and down short flights of stairs with four or five steps was inconsistent, as was walking down a flight of stairs involving twelve or more steps. He also displayed difficulty adjusting to the depth of different stairs. In the weight room18 , Student required assistance getting on the machines as well as to start the motion, but could complete the motion with less assistance once he started. His routine involved the use of the treadmill, pullovers, triceps, leg press, rowing, and using the lateral pull down machine. (SE-68; SE-97) Regarding Student’s Gait, he walked on his toes, and carried on with a bounding gait pattern. When walking, he turned his feet outward (external rotation at the hip), his head and trunk pushed forward, and increased hip and knee flexion. It is reported that after walking on the treadmill he walked with his feet flat and slowed down his walking pattern. However, when doing laps, he walked faster around the track. Student’s Range of Motion was within functional limits throughout his legs and trunk and muscle tightness improved since the previous year. He consistently participated in PE class with appropriate modifications and assistance. Ms. Pepe noted good progress in functional mobility since Student’s previous evaluation of March 2005, and recommended physical therapy 1 x 30 minutes per week as a direct service in other settings. (SE-68)

38. Consistent with her re-evaluation, Ms. Pepe explained in her end of the year report that due to Student’s positive results when using the ankle weights (to provide sensory feedback), and as part of his transition from the middle school (ARMS) to the high school, Student began going to the weight room in the high school once a week between April and June, 2006. (SE-97; Testimony of Ms. Pepe) She noted that Student’s attention and endurance improved over time. ( Id. )

39. Student’s COACH evaluation sought input from Parent, Ms. Pepe, Arice Staeb (occupational therapist), Sarah Wilson (speech and language pathologist), and Ms. O’Donovan, who was responsible to score it. (SE-69) The family expected Student to live with them in the near and distant futures, as he participated in most of the family’s routines and activities, and enjoyed friendships with classmates, family friends and school personnel. Parents wished for the school program to have greater focus on daily living skills including feeding, personal care (most of all tooth brushing and personal hygiene needs), and vocational training. Parents also wished for Student’s schedule in the community to be more flexible and for the new staff to receive adequate training. They also wished for Student’s communication, personal management, and socialization skills (including sustaining social interactions and maintaining socially acceptable behaviors) to be strengthened. Parents wished for Student to better accept transitions and unexpected changes. Leisure and recreation activities should, in the family’s view, expand beyond computer use. Regarding applied academics, Parents were only interested in Student’s use of money. (SE-69) This report was consistent with the Stepping Out Progress report completed by Parents addressing what Student was or was not able to do in the community regarding grocery and department store shopping, dining in self-service restaurants, using public restrooms, going to the barber, going to the movies, using the bank, and using a laundromat. (SE-70)

40. The School Functional Assessment (SFA) performed by Denise O’Donovan, Student’s special education liaison, on May 1, 2006, addressed Student’s performance in areas of functioning as he complies with adult directives and school rules, task behavior and completion, positive interactions, behavior regulation, safety and personal care awareness. Student was found to demonstrate growth especially with respect to positive interactions with others, following routines, and communication. Of note was his ability to maintain behavioral control and accepting changes in routine. (SE-71) When he required help, he took the hand of the staff, and when he wished to stop he got up and moved away from the undesired activity. Activities that involved motor control and working independently presented great struggle. He required physical assistance in areas involving hygiene, personal care, and personal management. Student continued to require adult support throughout the day to address safety issues, guidance, and skill acquisition. (SE-71)

41. On May 16, 2006, Jeanne White and Parent requested that Student receive his educational services in the middle school through graduation, or the end of his academic career. (SE-73) Parent also wanted Student’s instruction to focus more on developing his daily living skills, and less on class instruction in the regular education setting and socialization. Community involvement and vocational training were also priorities for Parent at this time even when she acknowledged having declined an offer of community and pre-vocational services for Student’s eighth grade. Parent suggested that Student do the laundry for her restaurant with one-to-one support. She further requested a flexible schedule that allowed Student to come to school later so that he could work on daily living skills in the home, but that the school day be extended so he would continued to have the same number of hours in his school program. She thought the summer program should be extended to 8 weeks as opposed to the 6 weeks he received in the past. Lastly, Parent offered to cover the expenses for renting a space where Student’s after-school program could focus on daily living skills. (SE- 73) Parent wished to hire and be responsible for Student’s after-school staffing at Amherst’s expense. ( Id. )

42. A Vocational Profile Summary was completed on May 22, 2006, detailing what Student was able to do in the area of job functioning, in an attempt to explore pre-vocational experiences. (SE-74) It showed that Student would require full adult support to perform all tasks and to travel as he could not do this independently. Student’s abilities in the areas of strength, endurance, and physical mobility were found to be minimal. The report noted that Student is social. (SE-74)

43. Denise O’Donovan completed Student’s three year re-evaluation on May 25, 2006. (SE-75) The result of the re-evaluation was consistent with the comments and findings expressed in Student’s progress reports and in testing performed during the eighth grade. (See SE-62; SE-63; SE-64; SE-67; SE-71; SE-83) In sum, Student was able to follow one-step and basic directions with predictable routines, could follow an object/picture schedule with physical guidance to take the next object in sequence, could chose between two to three preferred items (did worse with two), used the stop card to stop an activity he did not enjoy, and engaged others in interactions on a consistent basis. (SE-75) In Adaptive Living Skills, Student could locate a water bottle within sight when he was thirsty, and had started to sort soda cans and bottles within the classroom independently with redirection to complete the task, could also independently place the cans in the recycling machine, but required assistance holding the bag. An evaluation of his Motor Skills showed that Student was able to walk and follow an adult within the community but was not aware of safety issues. He could also navigate through the building with close monitoring to prevent tripping over stairs or objects. He could put on and take off his coat. In the work place he would require flexibility. Student was found to have poor lip closure and required physical support to wipe the saliva from his face, and he had occasional nosebleeds. On occasion he would independently leave the work area. For this reason, he required close monitoring in the community to keep him safe. (SE-75)

44. The three-year re-evaluation showed that Student continued to require adult supervision for safety, skill acquisition, and maintaining skills. He also needed repetitious practice for learning new skills through structured generalization activities. He required a structured learning situation for acquiring new skills. Ms. O’Donovan recommended an emphasis on self-care skills, community-based learning, and pre-vocational skills. Peer interactions and socialization should also continue to be incorporated into Student’s program, as well as participation in leisure activities. (SE-75; SE-83)

45. On May 31, 2006, Amherst forwarded to Parents an invitation to attend a Team meeting on June 7, 2006, to address eligibility determination, IEP development, three- year re-evaluation placement, and Student’s transition from the eighth to the ninth grade. (SE-77)

46. Student’s occupational therapy re-evaluation was conducted on June 3, 2006. (SE-78) At the time, Student participated in twice-per-week therapy sessions that focused on hygiene skills, strengthening his feeding, and addressing upper body strength and stability. A notable improvement was his ability to control upper body movements and anti-gravity tasks such as reaching, grasping, walking, and carrying items while walking. Student’s ability to isolate and discriminate small manipulatives made it challenging for him to experience consistent success with eating utensils, and he needed moderate assistance with this task. He used both his arms and hands functionally, but his abilities were more accurate with the right arm and hand. Ms. Staeb explained that improvement of upper body coordination and tactile discrimination was essential to Student’s ability to self-feed independently with utensils, or to attempt bilateral tasks (e.g., cutting food). She found that the quality of Student’s progress had been enhanced with the use of vestibular input (e.g., rocker chair and swing), coordinated movement tasks, weighted objects, tactile input, and deep pressure touch. (SE-78) She recommended that all of the aforementioned activities be incorporated into Student’s daily life, across all settings to ensure his continued development. (SE-78)

47. Student’s Speech and Language re-assessment, was conducted on May 23, 26, 30 and June 2, 2006 by Sarah Wilson. (SE-85) Her report of June 5, 2006, stated that Student’s strengths were in the “social engagement/pragmatic skills; executing routines and familiar sequence; learning and communicating in context of familiar activities and situations.” (SE-85) Progress in the PECS communication system had been made when requesting desired food items. Ms. Wilson recommended continued use of the PECS to assist Student to gain control of his environment and become more independent. She also recommended that instruction in language skills continue “within the context of established structure and routines.” Gradually, receptive and expressive skills could expand to more generalized contexts. Student should also continue to work on oral motor skills so as to decrease tongue thrust, and to help him improve the oral phase of swallow. (SE-85) On June 19, 2006, Ms. Wilson communicated with Eileen Daneri seeking her opinion as to whether additional evaluations were warranted. (SE-85)

48. Student’s Team met on June 7, 2006. (SE-79) All of Student’s providers emphasized that Student had become more independent from his paraprofessional, Jesse Turner. Mr. Turner would no longer be Student’s paraprofessional as he had obtained his teaching certification and would become a teacher the following year. (Testimony of Mr. Turner). Student was noted to have made great progress. (SE-79; SE-83) After discussing the results of the re-evaluations, Parent requested an independent PT evaluation. She was concerned with the recommendation to reduce weekly PT to once per week for thirty minutes. Parent also requested an independent OT evaluation because Parents were not seeing at home the same growth reported in school, and they were concerned with the reduction in services. They were concerned over motor intentionality. (SE-79)

49. Summer programming was also discussed at the Team meeting of June 7. (PE-12; SE-79) Parent expressed concern that in the past, Student had received eight weeks of summer services which had been reduced over time, and by the summer 2006, when other services were going to be reduced, Student would be getting less time in the summer. Parent alleged that Amherst was engaging in racial discrimination as “white lads” received more services than black children. Parent sought documentation from Student’s neurologist to support additional time because she would be less available during the 2006 summer and was concerned that Student could regress substantially with the reduction in services. (PE-12; SE-79) Parent also raised concern regarding the after-school program with which she was not happy. She emphatically stated that Student would not go to high school, and instead requested a community-based program. Her ideal program for Student included the following elements: in the mornings the program should start in the home to work on life skills therein; the family would provide transportation and be reimbursed; from the home Student could then go out into the community assisted by ARMS/ HEC; laundry skills should then be practiced by having Student do the laundry for Parents’ restaurant; and Student could then attend a recreation room within the community where he had access to a computer and then take a break. The school members of the Team opined that Student’s needs would best be met in the school program. (SE-79) The Team recommended that Student begin the semester at the middle school and then transition slowly into the high school. Martha Lewin, Student’s case-worker at the United ARC and David Chevalier from the Department of Mental Retardation (DMR) were also present at the Team meeting on June seventh. (SE-79) DMR contracted with ARC to provide services to Student and his family. (SE-80)

50. Several e-mails and telephonic communications took place between June 8 and June 12, 2006, in an attempt to reconvene Student’s Team on June 16, 2006. (SE-80) Kathleen Olson, Amherst’s Autism Spectrum Disorders Specialist, would be present at the meeting. ( Id .)

51. On June 14, 2006, Ms. O’Donovan completed a Teacher Assessment Form, indicating what Student had been working on educationally. (SE-81) Ms. O’Donovan stated that Student followed a non-academic program and that the science component was addressed through hands-on experiments. Geometry was addressed through functional skills, and the ELA standards by participating in switch-activated computer stories, as well as having peers and staff read to him. Classroom performance was as expected due to Student’s severe cognitive and motor impairments for which he required adult supervision. She noted that Student was non-verbal, but in spite of his limitations, was making continuous progress toward his educational goals. She opined that, “consistent routine coupled with adult support [was] crucial for Student’s success.” (SE-81)

52. Between September 2, 2005 and December 14, 2006, the first semester of Student’s eighth grade, he was seen in the nurse’s office four times, on: September 2, 19, October 3 and December 14, 2005. (SE-94; PE-47) On one occasion Student was seen for a lip laceration that caused excessive bleeding, the other three entrees addressed medication needs. During the 2004-2005 school year, Student was seen a total of twelve times, on September 29, 2004, due to a fall that caused injury to the shoulder/clavicle area; October 7, 2004, to reapply a band-aid and check an old nail injury; October 8, 2004 for a wound/abrasion to a finger nail; October 13, 2004, a nosebleed; November 9, 2004, a blunt impact-bumped head; November 10, 2004, nosebleed; March 2, 2005, nosebleed; April 7, 2005, nosebleed in the morning; April 12, 2005, nosebleed; April 28, 2005, nosebleed; May 3, 2005, nosebleed; June 6, 2005, nosebleed. (SE-94) Eight of the twelve times he was seen during his seventh grade were due to nosebleeds. (SE-94) Over the years Student made periodic visits to the nurse’s office to address injuries sustained mostly while ambulating, as a result of his coordination issues. (PE-45; PE-46; SE-94) In 2006, he was injured September 6, after bumping the right side of his head. (PE-48) Two other incidents occurred on January 16, 2007, when Student tripped and fell after lunch and on January 18, 2007 when he bumped the right side of his face in the hallway locker. (PE-49) An incident report was not generated for the January 16, 2007 fall because Student was not injured. Ms. O’Donovan addressed both incidents in the communication log to Parents on the specific dates. (PE-50) Parents allege that Student was seen at the nurse’s office more times than the nurse’s logs reflect due to nose bleeds and other injuries. (Testimony of Mother) Amherst asserted that the logs were complete and represented the actual times Student was seen. Dr. Deborah Abell, Student’s pediatrician, testified that her office notes contained no record of Student having had nosebleeds during the 2005-2006 school year. According to Jesse Turner, more nosebleeds occurred in school than at home while Student was in the middle school. (Testimony of Jesse Turner)

53. Student’s grades for the seventh and eighth grades show that he passed, or received no grade for most of his classes. (SE-95) In the eighth grade he failed Integrated Studies-8-Drama, and Integrated Studies-8-WR2. In seventh grade he failed English-Team 7C in the third term (but received a Pass in the fourth term), and Integrated Studies-7-Tech Ed. (SE-95) Given the severity of his needs, Student completed alternate assessments for the MCAS. ( Id .; See also SE-36; SE-37)

54. On June 12, 2006, Herbert Gilmore, M.D., Pediatric Neurologist, wrote stating that Student had significant deficits, ataxia, coordination disorder, and a history of seizures, and that it was appropriate and necessary that he be enrolled in an eight week long summer program as a result of his severe neurological condition. (PE-14)

55. Student’s Pediatrician, Dr. Deborah Abell, M.D., wrote a brief letter on June 14, 2006, requesting consideration of extending Student’s summer program to eight weeks to prevent regression and to help Student continue to make progress. (PE-15; SE-82)

56. Student’s Team met again on June 19, 2006, to discuss the following year’s program, summer services, and Student’s transition into the high school. (SE-84) The Team included Rachel Parker, a representative from Amherst High School. Parent reiterated her request for a second opinion regarding OT and PT services, and the Team recommended that the summer program be six weeks not eight, based on the school staff’s understanding that the only guideline they were required to consider was substantial regression, not whether Student would need summer services in order to continue to be able to make progress. (SE-84; SE-82; Testimony of Ms. O’Donovan, Ms. Pepe, Mr. Chevalier) The Team also recommended a community based program coordinated through the Amherst-Pelham Regional High School. (SE-84)

57. At the June 19, 2006 meeting, a draft proposed program was presented to the Team, which offered to start Student at the middle school during the month of September, and gradually transition him to the high school during October and November 2006. (SE-84; PE-13) The components of the program would be the same as during the end of the previous year, including shopping and recycling at Big Y, using the high school weight room for PT, continuing with the scheduled therapies, participation in adapted PE, and skill development in the Essential Skills program while the new paraprofessional staff was trained and to maintain the consistency of a familiar environment. (SE-84; PE-13) By October, Student would begin to spend time in the high school during lunch, speech therapy, OT, and ADL skill building, in addition to using the weight room. Transitions to new therapists would be made gradually with consultation and through direct observation. (SE-84) In November, the community and vocationally based programs would have their check-in at the high school, starting the day at the high school. (SE-84; PE-13) Ms. Olsen, one of the autism consultants, proposed the transition plan for Student. (Testimony of Ms. O’Donovan) Student would work to support the Coffee Shop at the high school, picking up, folding and washing laundry, banking, shopping, replenishing supplies, recycling, and slowly expanding on routines for personal management skills. (SE-84; PE-13) Other opportunities in the community would be explored slowly. Parent expressed no interest in Amherst’s proposals and felt strongly that Student should not transition into the high school. ( Id.; Testimony of Ms. O’Donovan)

58. In preparation for the summer 2006 program, Theresa Richards, hired by Amherst as Student’s paraprofessional, received one and a half hours of training from Jesse Turner and Denise O’Donovan. (Testimony of Ms. Richards) Ms Richards was under the impression that the physical therapist would also show her Student’s weight room routine, but that did not happen until the summer. ( Id. ) Ms. Richards has received additional training during the ten years that she has worked as a paraprofessional in Amherst. During the past four years she has worked in the intensive needs program at the high school. (Testimony of Ms. Richards)

59. On June 28, 2006, David Chevalier, Children’s Coordinator, DMR, forwarded to Parents the Fiscal year 06 annual progress report, and the fiscal year 07 goals and budget development. (SE-86) The report outlined the services provided to the family in the past and into 2007, namely: ongoing respite supports to enhance family stability 20 to 25 hours per week; continued access to community-based activities; enhanced community membership/social relationships; training in ADL skills; and safety skills training. (SE-86) Parent agreed to the services offered on June 7, 2006. (SE-86) The “Community” section of this report outlined some of the activities carried out by Jesse Turner with Student. These included: going to the arcade at the mall, Kidsports in Hadley, MA, bowling, shopping, and dining out with family and groups of peers. (SE-87)

60. Student began attending Amherst’s summer program on July 5, 2006. (SE-93) The program was supposed to run from 8:30 a.m. to 4:00 p.m. including the extended-day portion19 . (PE-16; SE-89) However, Student arrived most days between 9:30 a.m. and 10:00 a.m., and departed between 2:00 p.m. and 3:30 p.m. (PE-16; SE-93; SE-89; Testimony of Ms. Richards, Corrina Trude) Under the proposed program, Student spent the first portion of his program in shopping, toileting, brushing, laundry, weight room, and washing dishes activities with a half-hour lunch break. The afternoon program would provide him with opportunities to listen to stories, switch work at the computer, free time to engage in a preferred activity, and the last half-hour to get ready for home and for the communication log to be completed. (PE-16; Testimony of Ms. Trude) The hand-written summer schedule reflected that Student received a half-hour of speech and language services on Mondays, Thursdays, and Fridays, and OT and PT for a half-hour each, on Fridays. (SE-89) On July 28, 2006, Parent called and stated that until she was able to meet with Ms. Geryk to address her concerns Student would not return because she was concerned about the staff and Student’s IEP. (PE-17; SE-93) Student’s last day of attendance at the summer program was July 27, 2006. (PE-17; SE-93) Student did not participate in the outings organized for other summer program students. (Testimony of Mother, Ms. Trude) No OT was offered during the first week of the program, and since Parent removed Student from the program, the session was not made up. (PE-30; SE-96; Testimony of Ms. Trude) Ms. Richards testified that she walked with Student to the high school, to the corner store to purchase snacks, and to the Wildwood basketball area. (Testimony of Ms. Richards) Corrina Trude testified that Jesse Turner did not inform her that she should take Student swimming, bowling, to the park, movies or restaurants. (Testimony of Ms. Trude) In her opinion, Student would require two staff to ride the bus or be in the community because of his mobility and gait. She did not observe Student to regress during the summer program. (Testimony of Ms. Trude)

61. On July 27, 2006, Parents rejected the proposed IEP Amendment, and on the same date, Amherst forwarded the rejected IEP to the BSEA. (SE-88) Parents’ partial rejection of Student’s IEP for the period from May 18, 2005 through May 17, 2006, was caused by the parties disagreement regarding the length of the proposed summer program, and Amherst’s reasons to support their offer of a six-week program. (SE-88) In light of Parents’ partial rejection, Student would receive summer programming as per the last agreed upon IEP, SE-53.

62. Parent met again with Ms. White and Corrina Trude (Amherst summer staff) on August 1, 2006, to discuss Student’s proposed summer schedule. (SE-89) According to Ms. Trude, Student transitioned well into the summer program as he worked on community-based instruction and sensory activities during the four weeks he attended. PECS was used, he continued to work on laundry tasks and washing his own dishes. He was able to walk to Big Y, actively used the switch on the computer and listen to cultural poetry. According to Ms. Trude, he “performed daily living skills with increased independence,” although she provided no specificity as to what this meant. (PE-18)

63. During the summer Parent visited Student and observed his physical therapy session in the high school weight room. (Testimony of Ms. Richards, Mother) Student’s brother, who attends the high school, had expressed concerns regarding Student’s safety therein to Parent. The day of the visit, the room was crowded. Student’s brother was there as well. The physical therapist20 attempted to engage Student in his exercise routine, but he was not paying attention, was very distracted, and described by Ms. Richards as “all over the weight room” which was full of equipment over which Student could trip and fall. When Parent and the aide expressed concern that Student was not safe, the session stopped. (Testimony of Ms. Richards, Mother) Jesse Turner and Corrina Trude, both testified to concerns regarding Student’s safety in the weight room based on his performance, lack of specificity of a routine, and the amount of equipment therein. (Testimony of Mr. Turner) When Mr. Turner took Student to the weight room during the previous school year, there were only one or two other children with their paraprofessionals there. (Testimony of Mr. Turner)

64. Student was involved in two incidents during the summer 2006 program. He bit the nurse who was attempting to feed him his medication in pudding, and cut his hand when using adaptive scissors, which he had used multiple times in the past. (Testimony of Ms. Richards)

65. After Parent withdrew Student from Amherst’s summer program she arranged for two individuals, Student’s uncle and Zenobia Brandford (school’s paraprofessional and Student’s long time private care provider) to care for Student and engage him in community activities, sensory integration tasks, and self-help skills. (PE-19; PE-51) No information was provided regarding the specific programming provided by the aforementioned individuals.

66. On August 1, 2006, Amherst forwarded to Parents the proposed IEP and Placement for the period from June 2006 through June 6, 2007. (SE-90) It is this IEP that is the subject of the hearing before me. The IEP lists Student’s interests and strengths as being friendly, connecting well with staff/peers, initiating social interactions, following peer’s leads, learning routines, being motivated to perform self-help skills, and enjoying computer programs and ball games. This IEP called for provision of services to Student in a substantially separate classroom, initially at the middle school and later at the high school. (PE-4) The Language Arts/ Communication21 goal for this IEP is the same as it was on his previous one. (See SE-53) The goals for Oral Motor Control22 , ADL23 , and Pre-vocational24 differ from the previous IEP, or are new to this IEP. (PE-4; SE-90) The service delivery grid, based on a five-day cycle, divided the services to be offered according to those in the middle school from June 6, 2006 to June 22, 2006; the summer program running from July 5 through August 11, 2006; and those offered from August 31, 2006 through June 6, 2007at the high school. (PE-4; SE-90) The grid specifically provides:

Middle School

B. Special Education and Related Services in the General Education Classroom

Focus on Goal – Type of Service – Type of Personnel – Frequency and Duration – Period Start and End Date

1,2 PE Special Ed. & Para 5 x 60 6/7/06-6/22/06

4 Advisory Special Ed. & Para 5 x 20 6/7/06-6/22/06

4 Integrated Studies Special Ed. & Para 2 x 75 6/7/06-6/22/06

4 Pre Vocational Special Ed. Staff 2 x 90 6/7/06-6/22/06

1,2,4 Pre Vocational Special Ed. Staff 5 x 180 8/31/06-6/6/07

C. Special Education and Related Services in Other Settings (Direct Services)

Focus on Goal – Type of Service – Type of Personnel – Frequency and Duration – Period Start and End Date

1,2,4 Life Skills Special Education Staff 5 x 200 6/7/06-6/22/06

2 OT Occupational Therapist 2 x 30 6/7/06-6/22/06

2 PT Physical Therapist 2 x 30 6/7/06-6/22/06

Summer Program

Focus on Goal – Type of Service – Type of Personnel – Frequency and Duration – Period

1- 4 Summer Special Ed. Special Ed. Staff 5 x 234 7/5/06-8/11/06

1,3 Summer Speech Lang. Speech/Lang. Path. 2 x 30 7/5/06-8/11/06

1-4 Summer Academics Special Ed. Staff 4 x 120 7/5/06-8/11/06

2 Summer PT Physical Therapist 1 x 30 7/5/06-8/11/06

2,4 Summer OT Occupational Therapist 1 x 30 7/5/06-8/11/06

4 Sum. Extended Day Special Ed. Staff 5 x 150 7/5/06-8/11/06

Ninth Grade (8/2006- 6/2007)

A. Consultation

Focus on Goal – Type of Service – Type of Personnel – Frequency and Duration – Period

1-5 Team Consult OT, PT, SLP, Teacher, Para 1 x 30 monthly 6/7/06-6/22/07

2 Physical Therapy Physical Therapist 1 x 15 (can be 6/7/06-6/22/07
block schedule)

C. Special Education and Related Services in Other Settings (Direct Services)

Focus on Goal – Type of Service – Type of Personnel – Frequency and Duration – Period

1,2,4 Extended Day Special Educ. & Para 5 x 150 6/7/06-6/6/07

1,3 Speech Language Speech/Lang. Staff 4 x 30 6/7/06-6/6/07

1-4 Life Skills Special Ed. & Para 5 x 170 8/31/06-6/6/0725

2 Occupational Therapy OT staff 1 x 30 8/31/06-6/6/07

2 Physical Therapy Sped staff 5 x 30 8/31/06-6/6/07

2 Physical Therapy PT staff 1 x 30 8/31/06-6/6/07

67. The proposed 2006-2007 IEP offered Student physical therapy with Ms. Pepe once per week and five times per week with the paraprofessional for carryover, which represented an increase in the carryover of PT throughout Student’s day. (Testimony of Ms. Pepe) Ms. Pepe testified that Conway O’Connor, Student’s paraprofessional, has been extensively trained in Student’s routines. (Testimony of Ms. Pepe)

68. On September 5, 2006, Parents partially rejected portions of Student’s IEP covering the period from June 7, 2006 through June 6, 2007. (SE-92) In their opinion, PT and OT sessions were inadequate; the speech and language service should incorporate more assistive technology; Student required more “sensory diet”; and the summer program should run for eight weeks to prevent substantial regression. Parents wrote that efforts to resolve their disagreement were unsuccessful in spite of four meetings with Amherst’s administration and three Team meetings. The family requested that Student receive daily direct services of PT, OT, and Speech and Language so that Student could make meaningful progress. (SE-92) On November 15, 2006, Parent forwarded a new rejection page, correcting the previous one adding a request for Student’s program to include ABA, daily OT, PT, Speech Therapy, and sensory integration. (PE-4; SE-100) This document, dated October 20, 2006, also requested independent evaluations for OT, PT, speech, assistive technology and a Functional Behavior Analysis (FBA). (PE-4; SE-100) Parent requested a community-based program. Amherst did not support a fully community-based program as it would present difficulty with oversight and supervision of staff. (PE-4; SE-101) Amherst’s position was restated in a letter by Maria Geryk, dated December 1, 2006. ( Id .)

69. On November 2, 2006, Student had an Assistive Technology Evaluation at the Collaborative Center for Assistive Technology and Training. (PE-40; SE-99) The purpose of the evaluation was to help Student’s Team increase Student’s social interactions and communication. Patricia Walsh Cassidy, CCC/SLP and Dale Gardner-Fox, MS, RPT conducted the evaluation and recommended continued implementation of the Picture Exchange Communication system (PECS), and expanding it by adding auditory input into the symbols used as well as engineering the environment by placing individual talking buttons close to preferred activities. They found Student to be a candidate for use of a voiced output communication device, and recommended creating “core words” and “activity specific” overlays. They stated that in order for the augmentative communication to be effective, Student would have to be immersed in it. An easel presentation should be used when Student was working with writing utensils. The use of a padded armchair with more hip and trunk support was recommended. (PE-40; SE-99) Since Student appeared to be extremely influenced by sensory factors during this evaluation, Ms. Walsh and Mr. Gardner-Fox recommended ongoing attention to his sensory diet, which was found to be key in maximizing his ability to participate effectively in life activities. They found him to be more attentive and productive when he was relaxed. They recommended the use of a Boardmarker program on a computer with a color printer, and they also recommended that the staff expand beyond the cause and effect type of programs. They stated the Team should continue to use the schedule system already in place for Student, the Intellitools Classroom Suite , and should consider using the Little Step By Step (Ablenet) with which Student did exceptionally well. Continued meetings with key members of Student’s Team would be essential to the success of his program. (PE-40; SE-99)

70. On December 12, 2006, Amherst scheduled a Team meeting to review the Collaborative Center for Assistive Technology and Training evaluation received from Hampshire Educational Collaborative. (PE-42; SE-102) Due to Parents’ unavailability during the month of December, the meeting was scheduled for January 3, 2007. ( Id. ) On December 18, 2006 Parents requested that the meeting not be held in the morning, as non-school related staff were unavailable, and therefore, Parents too would be unavailable on January 3 rd . (PE-42; SE-103) A new Team invitation was forwarded on December 20, 2006 confirming scheduling of the Team meeting for January 3, 2007 in the morning.

71. On January 2, 2007, Parents wrote to Fran Zipperstein, School Principal in Amherst, complaining about what they considered to be an unsafe, and chaotic environment for Student. (SE-105) They also complained about the lack of consistency and high turnover of Student’s paraprofessionals during the first semester, of the 2006-2007 school year. Parents specifically commented on an injury to the Student’s face (near the right eyelid) sustained that day for which he had not received attention from the nurse, because the health office was closed when Student was injured. Parents requested a copy of this incident report. (SE-105) Fran Ziperstein responded to Parent on January 3, 2007, stating that the information Parent included was inaccurate as Student had arrived in school with swelling on the right side of his face, first noticed by the bus monitor when Student was picked up at the home. (PE-49; SE-106) Ms. Ziperstein and Ms. O’Donovan also noticed the swelling upon Student’s arrival in school during the morning of January 2 nd . Student was evaluated by two nurses, neither of whom recommended treatment and offered to re-evaluate him at the end of the day, which did not occur because Student and the aide arrived after the office was closed. Student however, was evaluated again on Wednesday January 3, 2007 in the morning by which time much improvement was noticed. Since the incident did not occur in the school, an incident report was not completed. The nurse’s notes were attached to Ms. Ziperstein’s letter. (SE-106) Ms. Ziperstein denied Parents’ allegations that school was unsafe for Student. ( Id .) On January 8, 2007, Parent disputed Amherst assertions that the injury must have occurred outside the school. (PE-49)

72. A letter from Susan Lakso, president and CEO of ADITUS (an agency that customizes services to individuals and employers) to Parent, dated January 22, 2007, commented on how well Student did during their meeting (sitting for over one hour). (PE-9; SE-107) Subsequent to their meeting, Ms. Lakso met with Ms. White of Amherst, complimented her on the quality of the reports prepared by Amherst, and shared that Parents had requested an autism consultant referral whom they intended on contracting privately. ( Id. )

73. Student’s schedule during the 2006-2007 school year, during which this matter has been pending before the BSEA, offers Student services as follow:

Monday

7:30-7:45 Unpack bag, Locker
7:35-8:05 Advisory, Isler C 5
8:10-9:15 Mobility/Carrying, Brushing
9:15-10:10 Choice/Snack, Face Wiping, Wash Dishes, Fill water/bottle, Bathroom, Toothbrushing
10:10-11:00 Collect Can, Recycle Paper, Brushing
11:00-11:55 P.E.
11:55-12:20 Lunch
12:20-12:50 Speech, Bathroom
1-1:30 PT, Brushing, Choice/Snack, Bathroom

Tuesday

7:30-7:45 Unpack bag, Locker
7:35-8:05 Advisory, Isler C 5
8:10-9:15 Mobility/Carrying, Brushing
9:00-9:30 PT, Bathroom
9:40 P.E.
10:30-11:00 Speech, Brushing
11:00-11:55 Choice/Snack, Face Wiping, Wash Dishes, Water bottle, Toothbrushing
11:55-12:20 Lunch
12:20-1:35 Bathroom, Toothbrushing, Mobility
1:40-2:20 Brushing, Choice/Snack, Bathroom

Wednesday

7:30-7:45 Unpack bag, Locker
7:35-8:05 Advisory, Isler C 5
8:10-9:15 Mobility/Carrying, Brushing
9:00-9:40 OT, Sensory Strategies, Bathroom, Toothbrushing
10:30-11:00 Big Y, Recycle, Snack, Shop
11:00-11:55 P.E., Reading, Brushing
11:55-12:20 Lunch
12:20-1:35 Bathroom, Toothbrushing, Mobility
1:40-2:20 Brushing, Choice/Snack, Bathroom

Thursday

7:30-7:45 Unpack bag, Locker
7:35-8:05 Advisory, Isler C 5
8:10-9:15 Mobility/Carrying, Brushing
9:00-9:45 Speech
9:50-10:20 OT, Assistive Technology
10:30-11:00 Choice/Snack, Face Wiping, Wash Dishes, Water bottle, Toothbrushing
11:00-11:55 P.E.
11:55-12:20 Lunch
12:20-1:35 Bathroom, Toothbrushing, Mobility
1:40-2:20 Brushing, Choice/Snack, Bathroom

Friday

7:30-7:45 Unpack bag, Locker
7:35-8:05 Advisory, Isler C 5
8:10-9:15 Mobility/Carrying, Brushing
9:00-10:10 Choice/Snack, Bathroom, Wash Dishes, Water bottle, Toothbrushing
9:40 P.E.
10:30-11:00 Collect can, Recycle paper
11:00-11:55 Assistive Technology, computer
11:55-12:20 Lunch
12:20-12:50 Speech, Bathroom
1:40-2:20 Brushing, Choice/Snack, Bathroom

According to Ms. Donovan, Student began his day in the homeroom. In the PE class, he completed the warm-up exercises but did not participate in the games; at that point he returned to the classroom, C-13. During the 2006-2007 school year, Amherst implemented portions of the 2005 IEP and portions of the 2006 IEP as a result of Parents’ partial rejection of the IEPs. (Testimony of Ms. O’Donovan) Ms. O’Donovan supported Student’s exposure to pre-vocational type experiences but raised concerns regarding community-based activities at this point. Melissa Campbell-Morton, the vocational coordinator for Amherst High School, consulted with Ms. O’Donovan to Student’s skills program in the high school, as a continuation of his middle school program. ( Id. )

74. Campbell-Morton’s recommendations, reflected in SE-79, were intended to help transition Student into the high school. Student was to work on skills in contained situations before trying them in the community. Short trips to the community with specific tasks would also be beneficial. She opined that Student’s recycling work at Big Y was important because completion of a task in and of itself, was a valuable skill for Student. (Testimony of Ms. Campbell-Morton)

75. Parent wishes to implement a home/community program for Student that includes the following:
a. School District will contract with New England Business Associates (NEBA).
b. NEBA will provide staffing and supervision for [Student’s] program.
[Student’s] day will start in the home and end in the community.
c. [Student’s] program will focus on intensive life skills/self-care
such as toileting with access to a private bathroom, dressing, feeding, etc. using ABA techniques.
d. [Student’s] program will focus on community integration activities,
such as “laundry job” through the family-run business and community leisure activities.
e. [Student’s] program will include behavior management component and increased OT, PT,
and Speech therapy sessions26.
f. [Student] will be able to access school resources as needed.
g. NEBA staff will be part of the IEP Team.
h. NEBA will provide transportation for [Student’s] community activities.
i. Family will provide back-up transportation as needed. (PE-2)

According to Parent, Parents’ proposal would remove excessive environmental stimuli, while providing intensive one-to-one services for pre-academic skills, sensory integration therapy, OT, PT, speech therapy, self-help skills, and prevocational training. Parents stressed that Student’s attention skills improved when Student was in a relaxed environment, and that he was less prone to accidents. (PE-52) Parents seek monetary reimbursement for expenses associated with provision of an extended day, community integration program. (PE-52)

76. Amy Lunden, Associate Director of The New England Business Associates (NEBA) testified that the organization provides employment and related services to people with disabilities. The Massachusetts Rehabilitation Commission contracts with NEBA. (PE-54; Testimony of Ms. Lunden) It offers a variety of services from two to forty hours per week, up to three hundred sixty five days per year, to individuals between the ages of thirteen and twenty-two. Some of the activities may include going to the gym, horseback riding, or doing a job. Training for the staff, which is offered in conjunction with DMR is ongoing and client specific, and may include CPR, values based training, and other training. Its philosophy is that everyone can work and have a valued role in the community. (Testimony of Ms. Lunden) Ms. Lunden met with Parent to consider the possibility of providing Student a community-based program although no specific planning has occurred yet. She also met with Student for one hour at a Barnes and Noble store. She did not contact anyone in Amherst, did not observe Student in school, and did not review any of Student’s evaluation reports. She explained that the process to create an Individual Service Design (ISD) is more informal than an IEP meeting, it is held in the home of the individual, participants are all those important in the client’s life, and the meeting occurs over the course of two or three hours. The ISD is used to “gain a deeper understanding of the people served” and to “develop a strategic plan for [their] service for each person to obtain work and other valued roles during the day”. (PE-54; Testimony of Ms. Lunden)

77. Ms. Lunden testified that for clients on IEPs, NEBA works in conjunction with the school districts. Neither, Ms. Lunden, or any of her staff is ABA trained. She would consult with Linda Rammler to design the activities of daily living and self-care, as well as for the ABA. (Testimony of Ms. Lunden) If Amherst were willing to outsource, the OT and speech could be provided through Amherst. Regarding Student, she could potentially bring in three people to work with him in addition to the ABA consultant, the OT, PT and speech pathologist. If the program lasted more than two hours per day at least two providers would be hired for Student. Her staff is able to provide services in the home without family supervision, and can also bring the student to the school for one or two periods per day for socialization with peers. Student’s program would begin in the home. NEBA could also provide a peer support group once per month. There is no minimum educational requirement for the personnel hired by NEBA, although most hold a high school diploma, and the organization does not have nurses, assistive technology persons, physical therapists, occupational therapists, or speech pathologists on staff. Ms. Lunden was not certain whether the only special education teacher on staff was certified in severe special needs. Ms. Lunden would act as the special education liaison, and she would answer to Amherst. In order to provide an entire special education program for Student, NEBA would have to apply for sole source approval from the Massachusetts Department of Education. (Testimony of Ms. Lunden)

78. Terry Richards was Student’s new paraprofessional during the summer 2006. At the beginning of the 2006-2007 school year, Dawn Henez was the paraprofessional until November 2006, when Conway O’Connor was hired with the intent that he would be Student’s paraprofessional as he went on to high school. (PE-22; Testimony of Ms. O’Donovan)

79. On January 26, 2007, Parents had Student evaluated by Margaret Chapuis, physical therapist at the Rehabilitation Services, Pediatric Program at the Cooley Dickinson Hospital. (PE-39) Amherst referred Student for this evaluation to address Parents’ concerns that Student had declined in his ability to dress himself, ambulate, and climb stairs. Ms. Chapuis did not contact Ms. Pepe to seek information regarding Student’s performance, or program in Amherst. (Testimony of Ms. Pepe) During the evaluation, Student presented with decreased postural alignment, decreased balance, decreased safety with ambulation, transitions, and climbing stairs. The report noted increased flailing of extremities with transitions and ambulation as well as with overstimulation, such as when Student walked in the hallway. Overstimulation also caused numerous fluctuations in ambulation patterns. There was also a decreased awareness of his body in space when he transitioned from standing to sitting; he almost bumped into walls and almost missed the chair when attempting to sit down. Parent reported that Student’s awareness increased when he used ankle weights. Student was assessed using a four-wheeled walker over which he was able to gain control after initially hitting his left foot with it, and became more focused while using the walker. In climbing and descending stairs, he did not always look at the steps or reach for the railing. After the one-hour examination, Student did not appear fatigued. The evaluator recommended that Student wear high top sneakers to increase his stability when walking. Student had been using shoes with Velcro straps because he was working on self-dressing. She also found that Student would benefit from engaging in a program that incorporated leisure activities such as swimming and adaptive bicycling, and also that community activities be incorporated into his program. (PE-39) She recommended that when Student walked on unleveled surfaces or crowded areas, he use a rolling walker with large wheels, but cautioned that he should be trained to use it safely. Regarding training, Ms. Chapuis stressed that the program should be set up with a consistent aide who should be trained for consistent follow through with the exercise program, and to work on Student’s community entry skills, leisure activities, sensory diet, and safe use of the walker. Student’s progress should be monitored, and he should be re-assessed initially every two weeks. (PE-39) Upon receipt of the evaluation, Maria Geryk e-mailed Parents asking whether Parents wished to proceed with a Team meeting to address the AT and new PT evaluations or whether Parents would prefer to wait until all evaluations were received before convening the Team to review the reports. (PE-50) The record lacks Parents’ response to the e-mail.

80. According to Parent and Student’s sister, Student seemed to be hungrier, thirstier and more tired at the end of the day during the 2006-2007 school year. (PE-22; Testimony of Sister) Student’s sister also stated that during her college winter break she picked Student up after-school approximately three times per week, and found him to be unkempt, he was wet and his diaper had not been changed and his face looked dry. (Testimony of Sister) A letter from Deborah Abell, M.D., Student’s pediatrician, dated January 11, 2007, states that Student had lost weight27 . (PE-53; Testimony of Dr. Abell) Dr. Abell testified that she had no independent knowledge of what was going on in the school. Her information came from parental reports. (Testimony of Dr. Abell)

81. Parent testified that since Jesse Turner’s departure in June 2006, Student had not had consistent one-to-one aides, and stated that the aides were poorly trained. (Testimony of Parent)

CONCLUSIONS OF LAW

Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act28 (IDEA) and the state special education statute.29 As such, Student is entitled to a free appropriate public education (FAPE).30 Student’s eligibility status and entitlement to FAPE are not in dispute. The parties’ central dispute relates to whether the program offered by Amherst is reasonably calculated to offer Student a FAPE and if not whether the home-program proposed by Parent is appropriate to meet his needs. All other issues are peripheral and related to this central one. Upon review of the evidence and in consideration of the Least Restrictive Environment requirement of the IDEA, I find that Amherst’s program with modifications is the appropriate program in which Student can be afforded a FAPE. In reaching this conclusion, I hereby incorporate by reference and rely on the facts stated in the Facts section of this decision, but avoid restating them so as not to be redundant.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs31 in a way reasonably calculated to enable the student to make meaningful32 and effective33 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.34 Under the aforementioned laws, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .35 Educational progress is then measured in relation to the potential of the particular student.36 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.37

Student is a non-verbal ninth grader with global developmental delays, autism, and major communication, fine and gross motor disabilities, as well as social skills deficits. At age fifteen, he is not yet toilet trained and continues to have great deficits with all activities of daily living. Student’s programs in Amherst have provided him with an assigned one-to-one paraprofessional throughout the day, including the after-school portion of his program throughout all relevant IEP periods. He also receives services from an occupational therapist, a physical therapist a speech pathologist, and an intensive special needs teacher. (SE-75; Testimony of O’Donovan)

Review of the evidence shows that Student’s 2006-2007 school year program offers a highly individualized educational program inclusive of consultation and direct services in physical therapy, occupational therapy, speech and language, pre-vocational, integrated studies, general education PE services, advisory, and direct pull-out to address life-skills. (SE-90) Cognizant of Student’s difficulties, multiple changes (including the loss of his paraprofessional of several years), and following numerous IEP meetings and discussions with Parent, Amherst proposed to implement the program slowly facilitating Student’s familiarity and adaptation into the high school building/ program through a three-month transition. The program includes extended day, and extended year services, although the dispute before me includes a difference of opinion regarding the length of the summer program. I find that SE-90, Amherst’s IEP for the 2006-2007 school year with modifications, as recommended by Ms. McIntire, and Mr. Chevalier, and in consideration of the current status of this case, can offer Student a FAPE, and constitutes the least restrictive environment appropriate to meet Student’s needs consistent with federal and state law.

The areas of Student’s program requiring modification involve: carrying over the program’s development of self-care and daily living skills in context and across all settings; training of the personnel assigned to work with Student; intensification of the extended-day portion of Student’s program; communication, OT and PT; and Parent/family and if appropriate, NEBA staff training for consistent home and community carry-over of skills.

The evidence shows that in spite of his severe needs, Student has made slow but steady progress, especially in the area of socialization, in the programs provided by the school district. Student is able to make good eye-contact, is aware of the presence of peers in the environment, and seeks and follows them with a desire for interaction. Up to this point, Parents supported inclusion experiences, which exposed Student to a variety of people, which clearly helped Student’s level of comfort in group situations. The evidence shows that with the assistance of Mr. Turner, Student did well in inclusion settings. Similarly, Student made progress in OT and PT from 2005 through the present time. (SE-68; SE-97; Fact 35, 36; Testimony of Ms. Pepe, Ms. O’Donovan) This progress is notable especially when compared to Student’s performance in older evaluations. (See PE-38) At this time, in order to make a safe and successful transition into the community, his program must focus intensively on the development of self-care, communication, and daily living skills, while continuing to work on maintenance of skills and address Student’s other needs. This will require intense skills-based development through a structured, consistent program throughout the day that can be carried into the home.

As suggested by Mr. Chevalier of DMR and Ms. McIntire, both of whom I found to be credible witnesses, given Student’s severe needs, he needs to learn in context so he is better able to generalize skills across settings. (PE-3) Activities of daily living that involve bathroom routines must be practiced in a bathroom, free of distraction, in school and at home. Practice must be carried into the after-school program, and must include Parent training so that the consistency reinforces the acquisition of skills. As explained by Ms. O’Donovan, Student needs lots and lots of practice in order to acquire skills. Consistency across all settings in the acquisition and development of self-care skills and activities of daily living is crucial to Student’s transition into a more community-based program. (Testimony of Ms. McIntire) In this regard, continuing to offer Ms. McIntire’s services, or another autism specialist, as part of the general consultation to Ms. O’Donovan’s program, is insufficient. Student’s IEP must be modified to include the services of the autism specialist in the IEP. The autism specialist should offer consultation services, direct services to Student, and on-going training to the staff assigned to work with Student, until the routines can be implemented appropriately, consistently, and independently by the staff. The specific amounts of time for provision of services should be determined by the Team. Also, the autism consultant shall provide parental/family training for carry over into the home. Consultation must include opportunities for consultation with Parents during the monthly meetings, or as deemed appropriate by the Team. At least one consult should take place in the home to see if Student is generalizing skills learned in school to the home setting, and to ascertain whether the interventions need to be modified. (PE-3)

Data collection and communication among all staff responsible for Student is crucial to the success of the program. In this regard, the daily logs, updates, and data collection must be improved. The monthly meetings must continue to be held so that strategies can be modified as needed. This continuous, consistent flow of communication will insure effective implementation of Student’s skills based-program. (PE-8)

At the time of the hearing, the staff assigned to work with Student during the school day portion of Amherst’s program included: Ms. O’Donovan, Conway O’Connor (the paraprofessional), Ms. Pepe (PT), Ms. Staeb (OT), Ms. Wilson (Speech and language pathologist), and a bus monitor. (Testimony of Ms. O’Donovan) In the extended-day portion of the program, Student was assisted by two paraprofessionals. One paraprofessional worked with him Mondays, Tuesdays, and Wednesdays, and another on Thursdays and Fridays. (Testimony of Ms. O’Donovan) That is, Student had six staff members with whom he worked in the school day and two staff members, during the extended portion of the day. When Jesse Turner was the paraprofessional, he worked with Student in the extended-day portion of the program and took him out into the community. That is, in 2005-2006, Student worked with six staff members during the school day as opposed to seven at this time. In the after-school portion, Student worked with two fewer paraprofessionals than he works with now. Also, the current extended-day program is designed to be carried out in school rather than in the community due to issues regarding Student’s safety in the community and during transportation. (Testimony of Ms. O’Donovan, Ms. McIntire, Parrent) Regarding the number of staff working with Student, Ms. O’Donovan could not remember how many substitute staff had also worked with him, but stated that if the paraprofessional was absent during the day portion of the program, she would work with Student, and if unavailability occurred during the extended-day program, Zenobia Brandford took Student. (Testimony of Ms. O’Donovan)

Ms. McIntire testified that consistency of programming during each portion of the day was more important than Student having only one paraprofessional to work with. (Testimony of Ms. McIntire) She opined that Student would require a significant amount of repetition, consistency, and time to learn in order to effectively acquire skills. (Testimony of Ms. McIntire)

During the 2006 summer and the 2006-2007 school year, training of the after-school staff was conducted by Ms. O’Donovan and Ms. McIntire, the autism specialist. (Testimony of Ms. O’Donovan, Ms. McIntire) According to Ms. O’Donovan, the after-school staff is different from the school day staff, and they do not have a person to whom they report on a daily basis. They begin the after-school program in Ms. O’Donovan’s class, where they receive information as to what Student’s school day was like. (Testimony of Ms. O’Donovan) Student partakes of the afternoon activities that are appropriate for him, such as “best-buddies” and the art club. During the extended-day portion of his program, he also works with snacks, and toileting, and goes to the open-gym. (Testimony of Ms. O’Donovan) Ms. McIntire who has consulted to the after-school staff once every two weeks during the 2006-2007 school year, recommended more training for the after-school personnel, which is skill-based service delivery. (Testimony of Ms. McIntire)

Given that Student’s program is shifting to a more-skills based program with ABA, ABA must be incorporated into the after-school program to address self-help and toileting issues. ABA training must be carried into the afternoon portion of Student’s program so as to render the experience relevant and consistent with Student’s overall program and effective skill development.

In this regard, the effectiveness of both the day and extended day portions of Student’s program must focus on similar goals and the receptiveness of the staff responsible to implement the programs is crucial. Everyone working with Student must be on-board with the new direction his program is taking. Ms. McIntire testified that she was not able to train Jessica Gladu “because she was not receptive to training.” (Testimony of Ms. McIntire) Ms. Gladu felt more comfortable with the activity-based programming she learned form Mr. Turner and was not open to Ms. McIntire’s suggestions. In contrast, “Nancy” and Conway O’Connor, the other paraprofessionals, were very receptive to receiving information from Ms. McIntire. (Testimony of Ms. McIntire)

Contrary to Parents’ argument, the evidence is persuasive that although staff consistency is ideal, at this time, consistency of the program across all settings, with everyone properly trained, reinforcing skills across all settings is more important than the number of professionals and paraprofessionals working with Student. Ms. O’Donovan and Ms. McIntire opined that the extended day program staff would benefit from more training and observation, something that Amherst is willing to implement. (Testimony of Ms. O’Donovan) Parents did not meet their burden of proof in showing that a more activity-based program and a reduction in the number of service providers were relevant to the success of Student’s program.

Turning to the skills-based program recommended by Ms. O’Donovan and Ms. McIntire for Student, the focus must be on becoming toilet trained, dressing/undressing, feeding skills, and communication. According to Ms. O’Donovan, in 2005-2006, Amherst could not work on Student’s toileting issues because Parent had expressed a preference for Student’s participation in inclusion. In 2006-2007, a task analysis for a toileting program was performed but had not been implemented because it would have required Student to be out of the mainstream. (Testimony of Ms. O’Donovan) The testimonial evidence shows that Ms. McIntire and Ms. Pepe would be responsible to implement the toileting and other self-help portions of Student’s program. (Testimony of Ms. O’Donovan)

During numerous evaluations conducted over the years, Student appeared to be extremely influenced by sensory factors. Ms. Walsh and Mr. Gardner-Fox recommended ongoing attention to his sensory diet, which was found to be key in maximizing his ability to participate effectively in life activities. They found him to be more attentive and productive when he was relaxed. (SE-99; Fact 62) Given Student’s needs and issues with distractibility and sensory issues, a separate space/room free of distraction is important to conduct the ABA and self-care teaching portions of Student’s program, which can then be reinforced in the mainstream. (PE-8) Amherst must locate a separate, quiet room in the high school, or other building for provision of the ABA training, and the room must be properly equipped. For example, the physical therapy evaluations have shown that the use of a padded armchair offers Student more hip and trunk support.

With respect to the location for implementation of Student’s program, the transition to the high school building must occur, but occur slowly as suggested by Amherst, given that maintaining Student’s safety is important. Ms. McIntire explained that the room to which Student would be assigned in the high school was more conducive to ABA training for activities such as life-skills and self-help skills. Toileting is a major concern, and according to Ms. McIntire, a bathroom is attached to the proposed high school class making it easier to implement toileting protocol. (Testimony of Ms. McIntire)

Also, Student’s coordination and strength have improved with the weight training exercises in the high school weight room. This experience proved to be helpful for Student when the room was not crowded. The evidence shows a marked difference between the experience between April and June 2006, and the summer 2006 when the room was found to be potentially dangerous by Student’s physical therapist, the paraprofessional, and Parent. (Testimony of Parent, Ms. Trude, and Ms. Richards) Jesse Turner testified to the amount of equipment in the room vis a vis Student’s distractibility and mobility as an area of concern. This reality cannot be ignored, but Student should not be deprived of a service that has proven helpful out of safety concerns. Amherst’s responsibility is to provide the service in a safe manner, something that can be achieved by scheduling Student’s physical therapy at times when the room is not crowded and by providing proper supervision by trained staff.

Given that to date, Student has had access to certain parts of the high school building for at least one year, he is not a total stranger to this building/environment, and overall, he has not been involved in the types or numbers of accidents that would render this location/environment unsuited for skills development. In this regard, Parents concerns, although understandable, are insufficient to enter a finding that the rest of Student’s educational career should totally exclude the high school experience. The high school environment is also found to be consistent with the types of experiences that Student is likely to encounter in the real world. Time cannot be stopped and neither can Student’s twenty second birthday, at which time his special education entitlement expires. Student must get ready for that day slowly. Keeping him in an artificial environment is inconsistent with ongoing socialization goals and transferring of skills into the community. Parent is however, correct that there are issues with Student’s safety in the high school environment, which must be addressed.

The nature of Student’s disabilities, especially issues with coordination, ambulation, distractibility, and lack of communication makes him prone to accidents, and this is a major concern to Parents. (PE-52) Parent specifically alluded to an incident during the 2005-2006 school year when Student tripped and cut his lip. Parent attributed this accident to the lack of training of a substitute paraprofessional. Parents fear that Amherst is not keeping Student safe because of improperly trained staff, and as a result of an inappropriate program. Parents’ concerns regarding safety for Student are legitimate, but the level of their fear is not proportionate to or substantiated by the facts in this case, and do not support a finding that the school’s program and the environment are so inadequate that Student warrants a home-based program, as Parents request.

Generally, Amherst has been able to maintain Student’s safety in Amherst. Ms. O’Donovan opined that Student had been safe in the middle school, and believed that he would be safe in the high school with proper supervision. (Testimony of Ms. O’Donovan) One of the locations over which Parent and the paraprofessionals expressed concern was the high school weight room. Ms. Pepe, testified that Student required supervision for safety awareness, spatial awareness, motor planning (opening doors, climbing stairs, etc.) and other tasks throughout his routine. (Testimony of Ms. Pepe) She opined that Student made effective progress during the past two years as evidenced by his need for lesser prompts to perform or complete a task, his ability to perform more repetitions of a given exercise, and improvement in visual/ spatial awareness. According to her, with proper adult direction and supervision he is safe in the high school weight room. (SE-68; SE-97; Fact 35, 36; Testimony of Ms. Pepe) The evidence supports a finding that the weight room when not used by large groups which are distracting, can be a safe place for Student to work on his physical therapy routines. Student met with success when at the weight room with Jesse Turner during the last quarter of the 2005-2006 school year, albeit when the room was only being used by Student and one or two more students with their respective paraprofessionals. The evidence shows that so long as Student’s service providers and paraprofessionals are properly trained and the room is not crowded, Student may access the weight room safely.

Over the past several years Student’s progress has been painstakingly slow requiring a great deal of direct services, repetition, and interventions. Given that staff needs to be trained and that he will undergo so many transitions all at once, Amherst’s reduction of Student’s direct PT and OT services, with the PT and the OT staff, is inconsistent with the evidence (even though more opportunities for practice have been appropriately incorporated into his IEP), at least during the transition period and until such time as the paraprofessionals and/or service providers are knowledgeable and comfortable with Student’s routines. Continued improvement in these areas is directly related to Student’s ability to ambulate safely in the community. Student’s needs in the aforementioned areas are great, and are not likely to disappear or greatly diminish throughout his educational career.

Regarding access to the community, Ms. McIntire expressed hesitation about a program that promoted skill development in the community for extended periods of time. She endorsed a slow introduction into the community for very small portions of time because of Student’s issues with boundaries, balance and because he does not yet consistently respond to the command “stop.” (Testimony of Ms. McIntire) Student’s communication skills and immediate response to safety commands must be in place before his program can be safely and more extensively developed in the community. To the extent that, and at the time that Student’s Team finds it appropriate, nothing in the record would prevent Amherst from working together with Parents and NEBA to access and/or explore community-based activities in the future.

The evidence thus supports a finding that a skills-based program in Amherst’s high school, inclusive of ABA techniques, offered by properly certified experience staff that is given proper training is the least restrictive appropriate program for Student at the present time.

The IDEA requires that a free, appropriate education be available to all eligible special needs students. Within this general mandate, the IDEA provides a specific mainstreaming directive, requiring that, to the maximum extent appropriate, a student be educated with other students who are not disabled. The statutory language reads as follows:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, 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.38

Massachusetts special education regulations include a substantively identical mainstreaming requirement.39

Federal courts have made clear that if a proposed placement does not allow for education with other, non-disabled peers to the maximum extent appropriate, the placement may not be offered or provided by the school district, nor may a Hearing Officer order it .40

The LRE mandate of the IDEA is inconsistent with the program Parents wish to implement. Parents criticize Amherst’s program alleging that it is fragmented and chaotic. They further allege that Student is being “warehoused”, and is being denied access to activities in the community. (PE-51; Testimony of Parent) While there seems to be some truth to Parents’ position in regard to Student’s experience during the after-school program (especially during the summer of 2006 when Student did not have access to the same out of school activities available to other summer students), Parents were unable to show that Amherst’s proposed program, even without the modifications ordered, is fragmented or chaotic. Parents were also unable to show that Student has lost skills previously mastered during these past two school years, including socialization skills. (PE-51) Parents assert that their proposal would remove excessive environmental stimuli, while providing intensive one-to-one services for pre-academic skills, sensory integration therapy, OT, PT, speech therapy, self-help skills, and prevocational training. (PE-2; PE-52; Testimony of Parent) Given that by virtue of this Decision, Amherst is being ordered to locate or create a quiet, distraction-free, separate room for provision of ABA services, there is nothing to inhibit Amherst from implementing the program appropriately and safely in the high school. Such a room would be conducive to acquisition of skills given that Student’s attention improves when he is in relaxed environments. (PE-2; PE-52)

The evidence shows that Parents proposed home/ community-based program would create a more chaotic and fragmented program, and it is not the least restrictive program appropriate for Student. While Student’s activities of daily-living and pre-vocational skills must be reinforced at home and in the community, nothing in the record supports a finding that these skills cannot better be taught in the high school classroom. In Parents’ proposal, OT, PT, speech and opportunities for mainstreaming would occur in Amherst, and Amherst would be called to coordinate all of the aforementioned services. NEBA would also follow Amherst’s lead in the provision of educational services. Parents relied on the testimony of Jesse Turner, Dr. Abell and Ms. Lunden of NEBA to make their case. Of these, only Mr. Turner had actual knowledge of Amherst’s program. None of the other witnesses, while well-intentioned, had direct knowledge of Student’s program. They never observed any of Student’s programs in Amherst, conducted an in depth review of Student’s educational records, or spoke to the direct service providers in Amherst, thus decreasing their credibility with respect to recommendations that were based largely on Parent’s perceptions. See: In Re: Attleboro Public Schools , 11 MSER 177 (2005); In Re: Dennis – Yarmouth Regional Schools , 10 MSER 64 (2004); Newton Public Schools , 10 MSER 365 (2004); Gateway Regional School District , 10 MSER 112 (2004; In Re: Belcherton Public Schools , 10 MSER 128 (2004).

While I find that Parent’s perspective is important and necessary, an effective program for Student must also include the experience and recommendations of Amherst’s service providers, whose testimony was found to be candid, credible, and reliable including the testimony of Ms. Trude, Pepe, Ms. O’Donovan, Ms. Richards, and Ms. Campbell-Morton. NEBA’s staff holds fewer qualifications, with the exception of one or two of its personnel, the staff does not hold certification in severe special needs, and an outside autism consultant would have to be retained to train and consult to the program. With NEBA, Student would have multiple service providers throughout the day. (Testimony of Ms. Lunden) Parents’ scheme would impact negatively on the consistency of Student’s program, and shift the focus to a more activity-oriented program with emphasis on pre-vocational and community skills, which is not what the evidence indicates Student requires at this time. Amherst would not be able to coordinate such a program efficiently, let alone have control and require accountability from NEBA staff who would be responsible for the majority of the educational portion of Student’s program.

In creating a home/community-based program, in effect, Parents are attempting to control Student’s environment and select personnel with whom they are comfortable. As stated in previous decisions41 , these are areas that fall squarely within Amherst’s discretion, barring a showing of denial of FAPE to the Student. The IDEA is clear that the responsibility for choosing the special education and related services providers for eligible students lies with the school district.42

Parents were successful in their challenge that Student’s summer paraprofessionals lacked sufficient or proper training. A similar observation regarding the after-school program was made by Ms. O’Donovan, and Ms. McIntire who recommended additional training of this staff in skill-based approaches. (Testimony of Ms. McIntire) Parents however, did not show that the lack of training amounted to a denial of FAPE to Student. In reaching this conclusion, I take into account the fact that during the summer 2006, Parents consistently failed to bring Student for the entirety of the summer program (almost every day, he arrived late and left early), and they removed Student from the program in the fourth week.

Parents’ claim also includes a compensatory claim for reimbursement for the summer of 2006 program, including the extended day portion of the program, in addition to missed OT, PT, and speech for that time period. Parents argued that the extended school year and extended day programs were in essence babysitting services. (SE-93) They stated that the summer program should focus on community integration, which did not occur. Parents also stated that Amherst underestimated Student’s educational needs, and that no information was disclosed about the new paraprofessional at the transition meeting. According to them, Amherst did not plan adequately for transition, or training of a new paraprofessional. Concerned about Student having a new paraprofessional in the summer, Parent requested that Amherst raise the salary of the paraprofessional, a decision that was ultimately rejected by Amherst’s administrator.

Parents also argued that in the past, the program was two hours long, and that the amount of time had been reduced in the summer of 2006. The evidence shows that Student’s summer program in 2006 provided the same amount of time for the extended school day portion as in prior years, that is two hours. (SE-37; SE-88; SE-89; SE-93; SE-96; Fact 56, 57) Student’s summer extended day program as per the 2006 IEP calls for two and a half hours, 150 minutes per day (PE-37; SE-53; SE-90) Amherst asserts that this is the amount that was offered and that the staff retained to work with Student during the 2006 summer remained available during the program hours even after Parent withdrew Student.

Parents are correct that the summer OT services did not begin the first week of the summer session, and that Amherst owed Student this session. Amherst however, recognized this and was willing to make Student whole, regarding missed sessions, prior to the end of the summer session. This however, did not happen because Parent pulled Student out of the program during the fourth week, and made separate arrangements for Student’s care and summer activities. The record lacks any evidence regarding the training and actual services provided by Student’s Uncle and Zenobia Brandford; therefore, it is not possible to ascertain whether any part of the time spent by Student with these individuals was consistent with his educational program.

Similarly, there was no showing that the extended-day portion of the program was inconsistent with Student’s IEP, even though Parent is correct that Student did not participate in outings available to other Students. Parent was also alarmed by her observation of the summer physical therapy session in the high school, also described by service providers as concerning, in which the weight room was very crowded and Student was injured during execution of his weight program routine. (Testimony of Parent, Ms. Trude, Ms. Richards) Parent testified that she removed Student due to violations in the summer extended-day program, and lack of adequate provision of OT, PT, and Speech services specified in the plan. Parent alleged that she attempted to meet with the summer speech and language provider, but could not do so because of her schedule. In support of her claim that the program was unsafe, she stated that on the first day, Student bit a nurse. Student was also injured using adaptive scissors. (Testimony of Ms. Richards, Ms. Trude) Parent feels that both these incidents were the result of inadequate training of the paraprofessional.

While Parents’ concerns were legitimate, their decision to remove Student from the entire program was drastic, given that all of the incidents and injuries incurred by Student were minor and a direct result of his disabilities. Parents’ concerns were addressed in a meeting held in August 2006 with Amherst representatives. (see also SE-73; Testimony of Parent)

Parents argued that in 2006, the extended day program was highly chaotic due to absenteeism of the paraprofessional, or change of plans.43 Because of this, it was difficult for the family to carry out their daily responsibilities to their business. Parents however, did not substantiate this claim. Student is therefore, not entitled to compensatory services for that time period. Similarly, Parents are not entitled to reimbursement.

Parents also claimed that Student’s summer program should have been eight instead of six weeks long. In Massachusetts, the state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:

An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.44

In contrast, the federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.45

By utilizing a FAPE, rather than a regression, standard, the federal regulations offer a broader approach. For example, a number of courts have interpreted the federal regulatory standard to mean that summer services are appropriate when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.46 Given Student’s severe disabilities, under the federal regulations, Student would be entitled to a longer summer program. However, the commentary to the 2006 federal regulations appears to take the position that states may properly use regression as their criteria for eligibility for extended year services.47 Amherst’s 2006 Summer program met the regression standard..

The record shows that consistent with Massachusetts regulations, Amherst offered a six week program using a regression standard. Amherst was within its right to do so.

Parents also alleged that Amherst had violated Chapter 57 of the Acts of 200648 , a law-addressing children on the autism spectrum approved on April 7, 2006. It is unclear, exactly how Parents are relying on this law to make their case, and Amherst argued that the law did not go into effect until after Student’s Team meeting. The evidence shows that all of the areas addressed in this law were addressed in Student’s IEP. Lastly, Parents raised allegations that Student was a victim of racism and institutional neglect, neither of which falls within the purview of the BSEA.49

Although this decision covers Student’s educational services through the end of the 2006-2007 school year, it should be instructive to the Parties in drafting Student’s new IEP for the 2007-2008 school year. I note that the information relied on in this decision was current and given Student’s severe needs and disabilities, it is not likely that the analysis and determinations herein would be inapplicable through the 2007 summer and the next IEP period.

ORDER:

1. Amherst shall offer Student a school-based program consistent with the 2006-2007 IEP, and shall convene the Team to modify its IEP consistent with this decision.

2. Amherst shall modify Student’s IEP to include the services of the autism specialist as part of Student’s program. The autism specialist shall consult to Student’s program staff and family, shall provide direct services to Student as needed, and shall provide on-going training to the staff assigned to work with Student. The autism specialist shall also conduct parent training for Parents and/or the immediate family member responsible to care for Student with respect to toileting and other self-help skills. If NEBA services are accessed, the family member may be substituted for the individual from NEBA assigned to work with Student. If the Team is unable to agree on the frequency and duration of the services, they may bring that portion of the dispute to the BSEA for further clarification.

3. Amherst shall incorporate ABA services and consultation into Student’s IEP. It shall also locate a quiet space, free of distractions to offer the ABA services in school. ABA services shall focus on daily living skills issues including toileting, feeding, dressing, as well as safety in the community.

4. Amherst shall change the emphasis of the after-school program to offer ABA and address daily living skills including toileting, and shall provide access to community-based activities as appropriate.

5. Amherst shall initiate a transition period, as proposed by Amherst at the beginning of the 2006-2007 school year.

6. Amherst shall train paraprofessionals on the safe and effective way in which to implement Student’s weight program, and physical therapy routines in the high school. Also, Student must be provided access to the weight room at times when the weight room is not crowded, to avoid Student becoming distracted and walking away from his routine in this area.

7. Amherst shall increase OT and PT direct services, with the OT and PT staff, each to twice per week, thirty minutes each, as in the 2005-2006 IEP, in addition to the five times per week PT currently offered.

8. Amherst shall improve the quality, and increase the amount of training offered to paraprofessionals and other staff during the day and extended-day portions of Student’s program.

9. Amherst shall establish better coordination/communication between the extended day program staff and the regular school day staff.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: 5/14/2007


1

This matter was requested by Student’s parents, however, since only Mother attended the Hearing and testimony was only provided by her, those portions of the decision refer to Mother as “Parent”.


2

Amherst objections to the admission of PE-6; PE-23, PE-41, and PE-43 were sustained and these exhibits were excluded.


3

Whether the IEP proposed for Student by Amherst-Pelham, for the 2006-2007 school year, if fully implemented, can offer Student a free appropriate public education in the least restrictive environment appropriate to meet his needs.


4

In her letter of April 20, 2007, commenting on Amherst’s Response to Parents’ List of Concerns, Parent stated that she reviewed Student’s records twice after the intervention of the previous Hearing Officer in this matter and stated that “Relevant document[s were] missing during the record review.” To date, Parent never identified the specific document to which she referred.


5

Parents requested that Mr. Slovin produce July 2006 meeting notes, but due to a clerical error at the BSEA, the subpoena required “production of July 2006 meeting notes, and incident/accident report school file since [Student’s] ‘school career’ .” The portion in italics was meant for the subpoena to Maria Geryk, not Mr. Slovin.


6

Her subpoena requested production of three meeting notes from the summer 2006.


7

“…The request [for subpoena] must be received by the Bureau at least ten (10) days prior to the hearing; shall specify the name and address of the person to be subpoenaed; and shall describe any documents to be produced.” Rule VIII, Hearing Rules for Special Education Appeals .


8

A deadline for submitting requests for subpoenas was set for February 27, 2007 during the telephone conference call held on February 26, 2007. Parents’ list of witnesses and requests for subpoenas were received on Wednesday, February 28, 2007. Most of the subpoenas were issued that same date but some could not be sent until March 1, after the BSEA contacted Parent because she had failed to provide a valid address for three of the proposed witnesses.


9

“Resolution Session. (i) Preliminary meeting. Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint. 20 U.S.C. §1415(f) (1)(B).


10

“If the school district fails to convene a resolution meeting within fifteen days of receipt of the hearing request, it shall be deemed to have waived the resolution session, and the hearing may occur.” Footnote #1 in Rule I F of the Hearing Rules for Special Education Appeals .


11

34 CFR § 300.510 (b)(3).


12

Parents stated in the letter of April 20, 2007 that the only independent evaluations conducted of Student were a physical education evaluation, an assistive technology (AT) evaluation, and Dr. Betsy’s report.


13

The IEP contained Parents’ full acceptance on June 16, 2003. (SE-18)


14

Parents’ input was sought in drafting this Amendment.


15

This IEP states that Student’s “schedule is extended due to a decision from a BSEA hearing. He receives a 6.5 hour school day and 2.5 hours of extended programming.” (SE-42)


16

Ms. McIntire is a certified behavior analyst, BCBA. She is in private practice and is retained by multiple school districts in Massachusetts as a consultant. (Testimony of Ms. McIntire) Ms. McIntire consults to Student’s program and has observed him in the day and extended day portions of his program, during structured and unstructured times. Ms. McIntire created all of the task analysis used by Student when toileting, recycling, dressing, tooth brushing, and face wiping. (Testimony of Ms. McIntire)


17

Student’s mother is a nutritionist and she explained the properties of onions as a blood thinner. (Testimony of Parent)


18

Toward the end of the school year Student used the weight room at the high school. (SE-68; Testimony of Mr. Turner, Mother, Ms. Pepe)


19

The educational program ran from 8:30 a.m. to 1:30 p.m., and the extended day from 1:30 p.m. to 4:00 p.m. The typed version of Student’s summer program found at PE-16, reflects the program offered by Amherst. The hand written schedule reflects the actual program that Student accessed given the times at which Parents dropped him off and picked him up. According to Amherst, after the initial difficulties it encountered during the initial weeks, its personnel was, and remained, available to provide services to Student, even after Parents withdrew him. (PE-16)


20

The name provided for this individual was “Carla”, no last name was given.


21

Student will increase his expressive and receptive language skills as demonstrated by increasing his independence within daily structured communication routines. (SE-90)


22

Student will decrease tongue thrust and increase mouth closure during the oral phase of swallowing. (SE-90)


23

Student will increase independence in functional life skill routines by following a structured program with minimal to moderate adult support as demonstrated by attaining the following benchmarks: improve spatial awareness, improve motor planning, improve strength, and increase independence within routine of performing daily living skills. (SE-90)


24

Student will be able to participate in instructional activities that include a pre-vocational volunteer work sites and local/area establishments. (SE-90)


25

This date was typed as 6/6/2006 on the original IEP and appears to be in error.


26

Initially Parent did not specify a provider, but at the hearing she and Ms. Lunden suggested that Amherst provide these services.


27

In July 2004 Student weighed 74.1 pounds. In January 2007, three years later, while taller, he weighed 74 pounds, placing him in the 0 percentile for his age. (Testimony of Dr. Abell)


28

20 USC 1400 et seq .


29

MGL c. 71B.


30

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


31

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).


32

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).


33

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).


34

See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).


35

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… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).


36

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).


37

E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)


38

20 USC 1412(a)(5)(A). See also 34 CFR 300.114(a)(2(i) requiring that services be provided in the least restrictive environment to the maximum extent appropriate.


39

603 CMR 28.06(2)(c) provides as follows:

Least restrictive environment (LRE). The school district shall ensure that, to the maximum extent appropriate, children with disabilities are educated with children who do not have disabilities, and that special classes, separate schooling, or other removal of children with special needs from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.

See also MGL c. 71B, ss. 2, 3.


40

E.g., Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children”); Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 (1st Cir. 2001) (“ 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); Board of Education of LaGrange School District No. 105 v. Illinois State Board of Education , 184 F.3d 912, 916 (7 th Cir. 1999) (placement proposal, which did not enable the student to share a classroom with typically developing children, did not satisfy mainstreaming requirement because student’s disability and IEP did not prevent him from benefiting educationally in a more inclusive setting).


41

“ When the evidence, as in the case at bar, supports a finding that the program proposed by the district is reasonably calculated to allow a student to make meaningful effective progress, then administrative assignments of qualified personnel to provide the specific service is left to the discretion of the district. See Hendrick Hudson Dist. Bd . F Educ. v. Rowley , 458 US 176 (1982); Roland M. v. Concord School Committee , 109 F. 2d 983 (1 st Cir. 1990); In Re: Medfield Public Schools , BSEA # 04-0706 (MA SEA 2004, Crane); In Re: Ipswich Public Schools , BSEA #05-3855 (MA SEA 2005, Figueroa); In Re: Ipswich Public School s, BSEA #07-0962 (MA SEA 2007, Berman).

Guidance on this issue can be found at 34 CFR 300.156(b)(1) addressing the qualifications of service providers, stating in pertinent part that related service personnel must have qualifications

… consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services.

As previously stated in In Re: Ipswich Public Schools , “while it is desirable and necessary for Parent’s observations and opinions to be considered, the ultimate decision regarding the selection of service providers lies with the school district.” BSEA # 05-3855 (2005). This position is consistent with the court’s position in Rowley , stating that
the primary responsibility for formulating the education to be accorded a handicapped child and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardians of the child…. [ Rowley, at 207-208.]” In Re: Duxbury Public Schools , BSEA # 07-3141 (April 23, 2007)


42

See also Hearing Officer Berman’s language in In Re: Ipswich Public Schools , BSEA #07-0962 (2006), “ The IDEA provides that school districts, not parents, have the right and responsibility to determine who provides special education and related services to eligible students… as long as the provider is qualified, a hearing officer may not interfere with a school district’s decisions regarding assignment of service providers, and may not impose credentialing requirements in excess of those required by the relevant regulatory body.”


43

It is not clear if these are the Parent’s words or the words of the report’s author.


44

603 CMR 28.05(4)(d)1.


45

34 CFR 300.106.


46

Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986). Other courts have utilized a regression standard. E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).


47

Federal Register, vol. 71, no. 156, August 14, 2006, page 46582, 3 rd column.


48

“The sixth paragraph of section 3 of chapter 71B of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by adding the following sentence:–Whenever an evaluation indicates that a child has a disability on the autism spectrum, which includes autistic disorder, Asperger’s disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, or Rhett’s Syndrome, as defined in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, the Individualized Education Program (IEP) team, as defined by regulations of the department, 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; the needs resulting from the child’s unusual responses to sensory experiences; the needs resulting from resistance to environmental change or change in daily routines; the needs resulting from engagement in repetitive activities and stereotyped movements; the need for any positive behavioral interventions, strategies, and supports to address any behavioral difficulties resulting from autism spectrum disorder; and other needs resulting from the child’s disability that impact progress in the general curriculum, including social and emotional development.” CHAPTER 57, H.B. No. 1123: SPECIAL EDUCATION–AUTISM SPECTRUM DISORDER, Amending MGL c. 71B §3, approved on April 7, 2006.


49

On or about October 4, 2006, Parent filed a claim of Institutional Racism with Amherst. (SE-98; PE-25; PE-33) She was invited by Alvin W. Morton, Student Services Administrator, Amherst-Pelham Public Schools to discuss the allegations on September 15, 2006. (PE-24; SE-98) Mr. Morton issued his response on October 18, 2006. (PE-26; SE-98) Parent raised this issue in her hearing request but was advised by this Hearing Officer, during a conference call and via order issued on February 28, 2007, that institutional racism claims do not belong at the BSEA, but rather fall within the purview of a different forum, such as the Massachusetts Commission Against Discrimination. The order also addressed Parents’ allegations of Institutional Neglect and Abuse, dated January 2, 2007. (PE-49; SE-105) Parents were advised that this claim also belonged before a different forum, such as the Department of Social Services.


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