COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 04-0896
IN RE: BARBARA1 v IPSWICH PUBLIC SCHOOLS
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred at the Bureau of Special Education Appeals (BSEA) in Malden, MA. on March 16, 2004 and March 23, 2004 with rebuttal evidence on April 12, 2004.
Those present for all or part of the hearing were:
Mother
Father
Melinda Warner Psychologist; North Shore Children’s Hospital
Diana Minton Student Services Director; Ipswich Public Schools
Debra Valente Harris Program Manager Ipswich Public Schools
Nicole Lembo Speech/Language Pathologist; Ipswich Public Schools
Margaret Medieros Program Manager; Ipswich Public Schools
Linda Labo Teacher; Ipswich Public Schools
Tim Sindelar Attorney for Parents
Mary Gallant Attorney for School District
Joan Beron Hearing Officer, BSEA
Thomas Houton Court Stenographer, Catougno Court Reporting
Sonya Medieros Court Stenographer, Catougno Court Reporting
Valerie O’Hara Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Exhibits marked J1-J81F and Rebuttal tapes marked R1-52 and approximately twelve hours of stenographic of recorded oral testimony. The record closed on May 14, 2004 after written closing arguments were received by both Parties.
ISSUES
1. Has Ipswich implemented a program that provides Barbie a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
2. If not, does failure to implement those accepted parts of Barbie’s IEP entitle her to an out of district self-contained program or some other form of compensatory education?
3. Does Ipswich’s current IEP amendment provide Barbie with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
4. If not, can the program be modified to meet Barbie’s needs?
5. If not, does the SEEM3 Collaborative program provide Barbie with a FAPE in the LRE?
IV. If not, does a FAPE for Barbie require Ipswich to locate or create an out of district program?
FINDINGS OF FACT
1. Barbara (Barbie) (born June 6, 2000) is an adorable 4 year old girl who lives with her parents, five year old brother and family dog in Ipswich, MA. (Mother). Barbie began speech therapy, occupational therapy (PT) and physical therapy (PT) early intervention services on May 8, 2001 (then age 11 months) to address gross motor, fine motor, cognition and communication delays of an unknown etiology (J59, J57). At that time Barbie had very low muscle strength. At 14 months Barbie could sit when placed and moved by rolling around. She also had significant language delay complicated by conductive hearing loss resulting from constant ear infections (J58).4 At 17 months (November 2001), Barbie’s skills ranged from a five-month level (in feeding) to a twelve-month level (in dressing) with social-emotional development at a 9-11 month developmental level, cognitive skills at an 11 month level. expressive language skills at a 9 month level, receptive language skills at the eighth month level, gross motor development at an eighth month level and perceptual/fine motor skills at a 7 th month level (J59).
2. Barbie’s early intervention providers reevaluated Barbie when she was 22 months old (April 2002) (J57). In that five month period, Barbie made a two month gain in gross motor skills (10 months), a four month gain in fine motor skills (11 months) and a one month gain in expressive language skills (10 months). Barbie’s cognitive, social-emotional and adaptive skills remained the same although skills were beginning to emerge at a 12-15 month level in self-care and social-emotional interaction; (J57, compare J57, J58). During this period Barbie moved by crawling, was no longer choking on food and was finger feeding table food. She was also beginning to use a trainer “sippy” cup with a bottle attachment. Barbie was also beginning to communicate by identifying familiar people by pointing, attempting a variety of sounds and signing “more” with verbal prompts (J57).
3. When Barbie was 25 months old (July 2002), she received a neurodevelopmental evaluation from Floating Hospital’s5 Center for Children with Special Needs (hereafter referred to as CCSN evaluation) (J56). Barbie displayed significant motor planning delays impacting her expressive language and motor skills. With orthodics, Barbie was beginning to cruise and was drinking from a soft-sprout cup. Receptive language skills were at a 12-15 month level with expressive language skills at a 9-12 month level. During testing Barbie was continuing to vocalize to express desires; however vocalizations were limited in variety and quality. She only used “mama” and “up” expressively. She also communicated by waving, pointing and signing “more”. Barbie could understand a one step command without a gesture and was beginning to understand “no”. She continued to have tactile sensitivity, poor sleep patterns and an inability to self calm but had shown improvement since starting a brushing protocol (J56). Fine motor skills clustered around the 12-14 month level. CCSN recommended continued early intervention speech/language, OT and PT services with speech therapy increased to 2-3 times weekly to address oral-motor awareness, imitation skills and language development with a total communication approach. CCSN also recommended a follow-up speech/language evaluation in 4-6 months to assess for dyspraxia6 , evaluate progress and plan for preschool transition. A follow-up neuropsychological evaluation in three months was also recommended (J56).
4. Early intervention (EI) reassessed Barbie in January 2003 (J55). At that time Barbie was 31 months old. Representatives from the Ipswich integrated preschool program were also present for the evaluation; Id. Since her last EI assessment nine months ago, Barbie had made a nine month gain in social emotional skills (19 months, with emerging skills at 24 months), a four month gain in her gross motor skills (14 months), a three month gain in her fine motor skills (11 months), an eight month gain in her receptive communication skills (18 months) and a three month gain in her expressive language skills (13 months). The EI providers also noted that Barbie was becoming more independent with some dressing and eating skills. The EI providers however also noted that Barbie’s rate of progress continued to be slow and was not able to generalize the skills learned 1:1 to other environments. The EI providers noted that Barbie required constant bombardment of skills to ensure consistency (J55).
5. Barbie received a follow up evaluation from CCSN on April 3, 2003 (J54). At that time Barbie was 34 months old. Barbie had begun walking; however her communication skills appeared to be static (J54, compare J54, J55). CCSN recommended that when Barbie turned three, she should be placed in a 12- month self-contained special education program that provides intensive stimulation in working on repeating sounds and increasing her functional communication skills. CCSN also recommended that Barbie be placed with some peers at her developmental level. They also recommended that the program have speech/language therapy that incorporates a simple communication board with consideration for introduction of a PEC system. Speech/language therapy, OT and PT were recommended to occur three times weekly (J54).
6. Barbie also completed a multidisciplinary evaluation (MDEC) from CCSN in April 2003 (J52).7 During that assessment Barbie displayed mental development skills at the 11-month level, motor skills at the fifteen-month level, play and leisure skills at the 6- month level. Her communication skills were at the 1 st percentile (receptive language 15-21 months, expressive language 15-18 months) with socialization and motor and daily living skills below the 1 st percentile (J52, but see J53, J55). Fine motor skills were at a 14-20 month level with emerging skills scattering up to 24 months. The MDEC evaluators however noted that these scores may not reflect her maximum potential (J52). The MDEC evaluators recommended that Barbie, upon turning three, be transitioned to a substantially separate year round preschool program for children with similar degrees of cognitive, physical and language capabilities. MDEC also recommended that the program contain speech/language therapy for at least two 60-minute sessions per week, PT for at least three thirty minute sessions per week and two to three thirty minute sessions of OT per week (J52)8 . CCSN further concluded that a standard inclusion program would not be appropriate because Barbie would gain little educational benefit and such a program would be unsafe for her given her poor balance and propensity for putting small objects in her mouth (J54, J52).
7. Dr. Melinda Warner9 conducted the cognitive portion of the MDEC assessment (Warner, J52). Dr. Warner had previously met Barbie and Parents because Barbie attended (and still attends) private OT, PT and speech/language therapy at the North Shore Children’s Hospital (Warner, Mother).10 The Speech/language pathologist (SLP) conducted her assessment with Dr. Warner. Dr. Warner concluded that Barbie was cautious, preferring the same routine and familiar adults and that she did not learn from peers, play interactively with them or take turns, thus making placement in an integrated preschool program inappropriate (Warner, J52). She also felt however that Barbie did engage with disabled peers because she interacted with them (but not their typically developing siblings) when she saw them in the hospital setting (Warner). Dr. Warner also felt Barbie required constant cueing and redirection to stay focused and engaged in “self-stim” behaviors when not directed by others (Warner, J52).
The SLP found that Barbie was engaging, maintaining good eye contact and could easily be redirected back to tasks with simple verbal cues (J52). While Dr. Warner felt that Barbie did not imitate, the SLP found that Barbie demonstrated the ability to learn task requirements after multiple demonstrations or repetitions and questioned whether motor planning played a part in Barbie’s delayed performance; compare (J52, SLP and nueropyschological reports). Dr. Warner’s formal testing showed that Barbie could generally not identify objects or pictures. The SLP’s formal testing showed that Barbie could identify pictures, objects, body parts and parts of clothing. The SLP found that Barbie could also initiate conversation using a limited repertoire of signs; Id.11 As such, the SLP concluded that Barbie could use signs and a picture system as a means to get her needs met (J52).
8. Dr. Warner recommended a full year extended self contained program with like peers that incorporated PT, consultation with Barbie’s private SLP, OT and PT from the North Shore Children’s Hospital, regular parent/school communication and a home component. Dr. Warner also recommended that the program contain hand over hand instruction; however, Dr. Warner also noted that Barbie dislikes directive or restrictive handling (J52).
The SLP did not recommend a specific program but did provide many recommendations for speech/language.
These recommendations included:
· Use of multiple modalities to communicate (signs, words, pictures);
· use of modeling, echoing and encouragement of gestures and vocalizations,
· use of touch or sound cues to assist with possible motor planning difficulties,
· visual supports and demonstrations including hand over hand assist,
· presentation of Mayer-Johnson symbols in simple communication books using single word and sentence formats to improve expressive and receptive language;
· use of both high and low tech assistive technology devises;
· expansion of signed and spoken utterances through modeling;
· a speech/language reevaluation in twelve months (J52).
9. Barbie also received an updated EI evaluation in April 2003 (J53). The EI providers noted that since their last evaluation, Barbie’s receptive language had dramatically improved. Barbie could follow directions, understand simple “wh” questions and had developed emerging body part recognition. She was becoming more animated with her facial expressions and gestures. She also was able to verbalize “mama”, “up” and “ha” (for horse). She was also able to sign “more”, “all done”, “up”, “jump”, “help”, “ball” and “eat” which were at times spontaneous but not always consistent. She continued to point and grunt to convey her wants but was beginning to choose objects by pointing. She was also beginning to imitate babbling sounds. She remained resistant to hand over hand activities due to tactile defensiveness, was gravitationally insecure and very cautious. Barbie continued to require frequent reminders, physical cuing and redirection to visually attend as well as verbal repetition of directions to ensure understanding and constant repetition to acquire new skills (J53). The EI staff also noted that Barbie worked best in a one to one situation with minimal distractions. They also noted that her progress was slow but that once Barbie learned a skill she did not lose it. They also noted however that it was difficult for Barbie to generalize skills within different environments and with different people. Testing showed a 5 month gain in receptive language (23 months), a one month gain in expressive language (13 months), a 5+ gain in social emotional skills (24-27 months), a six month gain in gross motor skills (20 months) and a 2 month gain in fine motor skills (18 months) (J53). Barbie also showed three months of growth in self care skills (12-15 months).
10. The EI staff recommended enrollment in a small structured extended year language based preschool with a small student/teacher ratio. They also recommended that the program use a total communication approach that incorporates language, signs, pictures and assistive technology throughout the course of the day and constantly and consistently integrates all activities and therapies into the daily routines and curriculum of the classroom. They further recommended that extraneous stimuli be kept to a minimum and that the program have a longer day to incorporate transition times, classroom times and therapies. Finally they recommended that there be frequent contact between the teachers, parents and providers to ensure carryover in the home setting (J53).
11. On May 5, 2003 the TEAM convened to develop an IEP for Barbie upon her third birthday in June 2003 (J2). The TEAM had also met previously (Mother). The IEP proposed a full day, year long self contained preschool program that provided constant repetition of activities and routines and 1:1 interaction and supervision from appropriately trained personnel to facilitate Barbie’s understanding, redirect her attention and facilitate her interaction with others. The IEP also indicated that Barbie be provided with a total communication system that incorporates verbal language, pictures, signs, gestures, and assistive technology in a highly predictable classroom setting.
The IEP also indicated that Barbie be provided a daily communication system between home and school consisting of a daily communication system via email or notebook between Parents and each of Barbie’s teachers and school related service providers (J2). The IEP further indicated that instruction would be provided 1:1 with hand over hand application of concepts in a self contained classroom with no more than 4-6 children at or slightly above her developmental level. However, the IEP also indicates that Barbie would not receive all of her instruction in a 1:1 setting through hand over hand assistance because the IEP specified that that Barbie would receive instruction in smaller distraction free areas for 1 to 1 instruction (as opposed to classroom instruction) ( see J2). The IEP also included one hour per week of consultation, home visits every other week, and speech/language therapy, PT and OT for three thirty minute sessions per week (J2). Parents accepted the IEP (Mother, J2).
12. Barbie began receiving special education services in the summer of 2003 in the Doyon Elementary School eight-week summer preschool program (Mother, see J42-50). During the summer Ipswich communicated with Parents through progress notes and meetings. 12 Ipswich felt that Barbie had made improvement in the summer program and responded to the modeling approach used in the classroom; see (J42-50, Medeiros). Ipswich also felt that Barbie benefited from exposure to typically developing peers and that removal from activities such as the sensory motor group would be contraindicated ( see J50). By the end of the summer Ipswich’s SLP noted that Barbie’s ability to imitate signs had shown significant improvement with Barbie imitating some signs and often attempting to copy most other signs presented in therapy (J44, Lembo). Barbie was also spontaneously signing, (in addition to her previous signs of “eat”, “more” and “all done”) the signs for “open”, “ball”, “jump” “me”, “on”, “off”, “green”, “yellow”, “cookie”, “bus” and would gesture “no” and “yes”. Barbie was also able to imitate the signs for “bunny”, “drink”, “help”, “baby”, “walk”, “blanket”, “sleep”, “glasses”, “dance”, “wash”, “rain”, “hat” and “cry” (J44). She also signed spontaneously in the classroom; see (J39). By the end of the summer the SLP also reported that Barbie was babbling more. While she had previously used only “mama” and “ha” (for horse) by the end of the summer Barbie was attempting consistent verbal approximations for words such as “uh” (for up, off or on), “bu” (for bus), “bye-bye”, “m” (for yum, more and two peers names), “wa” for quack” and a caregiver name (J50). The classroom staff also noted that Barbie was verbalizing /m/, /n/, /b/, /w/, /l/, /c/, /d/ and /p/ and was babbling strings of sounds together (J39). By the end of the summer Barbie was also able to understand many one step directions without signs during speech and PT sessions and in the classroom (J42, J39). She was able to identify objects in a field of four during her speech/language therapy sessions and could, in the classroom, make a choice by pointing to pictures in a field of three; see (J50, J39). The PT noted that Barbie continued to present with low muscle tone and decreased muscle strength and gait and flexion deviations that cause fatigue in therapy and impacted her ability for extensive walking (J43). However, Barbie showed some improvement with her ball skills, quad strength and balance reactions (J43). The OT noted that by the end of the summer, Barbie had improved her ability to imitate different sounds and tongue and lip movements, was better able to tolerate tactile experiences, was improving her ability to attend to activities and had improved her ability to grasp and release scissors. She was also beginning to consistently use a fork, spoon and open cup independently during lunch with few spills (J42, J39).
13. Parents however did not believe that the IEP was implemented properly because Barbie was placed for part of the day with up to seventeen children, half who were not disabled. In addition, the class did not have any of the recommended communication devises and did not have a distraction free area for Barbie to receive 1:1 assistance. Parents also did not feel that the staff had the proper qualifications and experience because Barbie was taught by a teacher that was not certified in special education (Mother, see J60). That teacher was however seen daily and supervised by a special education certified teacher; (Medieros, see J60). Ipswich did not inform Parents of this supervision (Mother, Medieros).
14. Barbie transitioned into the full year special education preschool program at the Doyon Elementary School in September 2003 (Mother, J40). On October 3, 2003 Dr. Warner conducted a three hour observation of the school year program. She was accompanied by Debra Harris (J35, Warner, Medieros). At the time of the observation the program had one typically developing child (who was absent), Barbie and two special needs peers. The program also had a different teacher, different teaching assistants and a different SLP (Labo, Warner). Ms. Harris13 observed Barbie vocalizing, following directions and receiving hand over hand assistance to strum a stringed instrument. She also saw that Barbie appropriately picked pictures, modeled sounds, attempted to imitate signs, and spontaneously signed “banana” when asked what she wanted to eat (J35). During snack Barbie was, after several verbal cues, able to unzip her bag and participated appropriately in the outdoor nature activity (J35). Ipswich’s other administrator (Margaret Medieros) also observed Barbie on several occasions and concurred with Ms. Harris’s assessment (Medieros).14
15. However, Dr. Warner found that the staff consistently over-estimated Barbie’s abilities. Dr. Warner heard Barbie spontaneously making some babbling sounds and many brief, guttural sounds but did not feel that these sounds were directed at anyone or that they were attempts at communication (J34, Warner, but see J28). Dr. Warner also did not observe the staff offer Barbie picture schedules but would check with Mother to see if these were used (J40). Dr. Warner also observed that Barbie often did not respond to things the staff said to her and that staff did not use assistive technology programs or total communication programs to require a response. Staff generally spoke to Barbie and signed only if reminded to do so by the SLP or if Barbie hadn’t responded after a few tries. Dr. Warner felt that Barbie did not spontaneously initiate communication and did not imitate any actions or activities (Warner, J34). However, in her report Dr. Warner did observe that Barbie was able to mimic signs demonstrated by staff and indicate a preference when offered a choice between two objects by pointing or repeating a sign that had been offered; see (J34).
In addition, Dr. Warner did not observe Barbie initiating any actions without adult help and found that Barbie needed constant, hand-over hand, one on one instruction in order to attend to and respond even minimally to instructions. She further found that Barbie was easily distracted by adults in the classroom engaging in frequent greeting by waving. She also noted that Barbie did not initiate any interactions with other children (J40). Dr. Warner did note however, that during much of the observation, Dr. Warner was not at a good angle to be able to see facial expressions well (J40).
16. Dr. Warner felt that Barbie’s current program was inappropriate because it did not provide the constant, consistent total communication language immersion program Barbie required. She also felt that the staff were not skilled in American Sign Language (ASL) and were not skilled in or were not using the picture-based communication system with the appropriate frequencies or intensity that Barbie needed. Dr. Warner also found that the program did not provide a quiet distraction free area for Barbie to receive her services. She also found that Barbie would be distracted in a program that utilized an integrated classroom model because Barbie does not learn from observation, would not interact with other children, would be distracted by their activity and would not receive the constant 1:1 attention she required. Dr. Warner recommended that Barbie be placed in another program but that in the interim staff should be trained in ASL, that Barbie receive an assistive technology evaluation and that coordination and frequency of ancillary therapies and communications be improved (J34).
17. On or about September 29, 2003 Linda Labo began as a teaching assistant in Barbie’s class (Labo, see J9). She became the Lead teacher the last week of October 2003 (Medeiros, Labo). Ms. Labo has a Bachelor’s degree in Early childhood education with certification in early childhood education with moderate special needs education PreK-2 nd grade (Labo, Medieros, J60). She has one year of experience as a lead teacher for a Head Start classroom in Rhode Island and practicum experience working with special needs children; Id. Upon taking over as lead teacher Ms. Labo set up the room with more child centered activities and more developmentally appropriate toys and activities. Objects were labeled around the classroom with pictures and words and touch cues were taught, used and labeled with pictures for the staff to refer to (Labo, see also Lembo). Dividers were ordered to set up the distraction free area for Barbie (Labo). Ms. Medieros also noticed more teacher directed programming, more modeling of language, more structure and consistency to the day and more supervision of the paraprofessionals (Medeiros). Mother also noticed an improvement when Ms. Labo took over as lead teacher (Mother). The teachers used some specific signs, however, sign language was not part of the program because Ms. Labo and the paraprofessionals did not know much sign, learning it on the job from the SLP’s, asking a second grade teacher who signs or referring to a Signing Exact English book; see (Labo, Medieros, Mother, Lembo, R1-R4).
18. The TEAM reconvened on November 10, 2003 to review Barbie’s program and Dr. Warner’s report (J32). The TEAM reviewed Barbie’s progress and discussed implementation of services. Ipswich admitted that the picture schedule was not fully implemented due to problems hooking up the system with the SLP’s computer (J32, Labo, Harris, see also J26).15 However at that time Barbie was babbling and gurgling and had been vocalizing “bu” for (bus), “a pl” (for apple), “ha” (for horse), “ca ca” (for cracker) “mama”, “da da’, “bye-bye” “hi” and the first consonant of a peers’ name. She was also spontaneously signing “play”, “orange”, “all done” and “cry” (in response to a peer’s crying) (J29, see also J32). However signing and imitation was often imprecise or delayed due to motor planning issues indicating a need for a motor speech evaluation; see (J32). Ipswich also acknowledged that the home program had not been set up because Barbie and her parents were not available during school day time hours. This was due to Barbie’s private speech, OT and PT at North Shore Children’s Hospital, private aqua and hippo (horse back riding) therapies, private speech therapy at home or scheduled activities with Mother and Barbie’s brother ( see Labo, Mother, J28). The Parties tentatively agreed that weekly home meetings would occur with Mother at school (J32). The TEAM also agreed to fund an Easter Seals assistive technology evaluation16 and that there be consultation (including observations) between the Doyon staff and the private therapists at North Shore Children’s Hospital. The TEAM however felt that they were meeting Dr. Warner’s recommendation for a 1:1 aide throughout the day but disagreed with Dr. Warner’s recommendation that Barbie have the same 1:1 teacher all day feeling that Barbie needed to respond to others, not just one preferred adult. The former SLP also felt that staff was fluent in sign language and used it consistently (J32, but see Labo). Ipswich also disagreed with Dr. Warner’s recommendation for no mainstreaming because Barbie played next to and looked at other children, recognized her special needs and typically developing peers in the classroom, waved hi and and bye to classmates and often chose to do what they were doing (J20, J26, Labo). Ipswich also did not agree with Parents’ assertion that Barbie did not consistently understand directions, choose activities or imitate because they saw her doing these things in the classroom; see (J32, Labo, Lembo).17 It also did not feel that Parents’ request for an independent consultant to monitor the program was necessary because Barbie’s private therapists could schedule visits and observe the therapies and information contained in the home/school log (J32). In addition information was shared in parent/school weekly meetings (J32, see also J29, J36, J37, J38).
19. Mother, Dr. Warner and Barbie visited the SEEM Collaborative in the fall of 2003.18 Mother felt that the SEEM placement could meet Barbie’s needs because the teachers offered a lot of hand over hand instruction and although they did not sign every word appeared comfortable using sign language (Mother). Dr. Warner felt that the program was appropriate because the SEEM staff signed virtually everything. She also felt that the peers were appropriate for Barbie because the child diagnosed with Down’s Syndrome also had motor and speech delays and lower cognitive functioning. Dr. Warner also felt that the child diagnosed with autism did not provide a distraction for Barbie even though he was making loud noises throughout the observation (Warner). Dr. Warner also noted that every child had a keychain photo communication board. She felt that this would be appropriate for Barbie’s communication needs.19 Dr. Warner did however note that the SEEM program did not have a voice output devise (Warner).
20. On November 13, 2003, Ipswich received a note from the SEEM Collaborative indicating that it had reviewed Barbie’s records and completed an interview and tour with Mother and had made a determination that the preschool program could meet Barbie’s needs (J31). The SEEM Collaborative’s Therapeutic Learning Center (TLC) North preschool program follows a typical preschool classroom structure and uses a combination of Applied Behavioral Analysis and Floor Time Approach (J16). These are approaches used for children diagnosed with Pervasive Developmental delays (PDD) (Medieros). These approaches are not used for children with global developmental delays like Barbie (Medieros). The SEEM TLC preschool program has two students one with autism, the other with Downs syndrome. The preschoolers are paired with the three kindergarten children for health, circle time, the weekly social skills group and recess. These children also have Down Syndrome or global developmental delays. All of the students’ programming focuses on behavioral modification, sensory integration, functional communication and independent daily living (J16, see also J72). Most, if not all, of the children appear to function at a lower level than Barbie (Medieros). If Barbie entered the program she would be the only child who did not require a behavior plan (Medieros, see also Mother, Labo). The SEEM TLC also has a six week summer program that is less academic in nature and considered a recreational program by SEEM staff (J15, Medieros).
21. Ipswich sent Parents an IEP amendment the following day. The IEP added a goal in speech production and amended goals in all areas because many of Barbie’s benchmarks needed to be raised; compare (J1, J2). The IEP also specified that part time attendance of typically developing peers as role models and language partners would be beneficial for Barbie (J1).
22. On November 24, 2003 Parents partially rejected the IEP amendment due to its partial20 inclusion of two to three typically developing peers in Barbie’s classroom (Mother, J1A, see also Labo). Parents also rejected the amount of time included for OT, PT and speech therapy. Parents requested that speech/language therapy increase from three 30-minute sessions in speech to two sixty-minute sessions in speech per week (an extra 30-minute session per week). They also requested an increase from three to four thirty minute sessions of OT, and 150 minutes per week (an extra hour of PT) as recommended by North Shore Children’s Hospital; but see (J52 North Shore MDEC report recommending three 30 minute sessions each of OT and PT).21 Parents’ also rejected the IEP due to the absence of a provision requiring that each teaching assistant attend one session per week of speech therapy, OT and PT per week in order to carry over instruction during the day. The IEP was also rejected due to lack of specification regarding consultation time between private and school therapy and specifications regarding specific benchmarks in the IEP; see (J1A).
23. On November 24, 2003 Barbie received a privately funded communication consultation from Children’s Hospital’s Communication Enhancement Clinic (CEC) (J28). The evaluator noted that Barbie could visually scan and identify within a field of twenty Mayer-Johnson symbols and could locate and activate specific symbol representations displayed on a computer software (Intellikeys) keyboard when prompted to do so (J28). CEC recommended that Barbie be educated through a total communication approach and recommended many augmentative communication devises including the use of a Mayer-Johnson symbol communication notebook, topic display picture books, activity picture boards and voice output systems (J28).22 . A follow up consultation was set for May 12, 2004 (J28).
24. Barbie’s former SLP met with Mother on November 26, 2003. At that time she did not know that Barbie had had an evaluation form CEC and was not aware of their recommendations; see (Harris). The former SLP left some environment boards and several sizes of albums that could be used for communication books as well as vocabulary that could be used in the books. Mother and the SLP also discussed voice output equipment. Mother was given catalogs to look at some equipment (J27). She was at a later time given schedule pictures, Boardmaker pictures and pictures related to the articulation work done with the current SLP (Labo, Lembo). Mother did not understand what to do with the communication books and no follow up or coordination with the school program has occurred (Mother, Lembo).
25. On December 10, 2003, Janice Schwartz, a private doctorate level clinical neuropsychologist, conducted an hour and twenty-minute observation of Barbie in her program (J24).23 The observation included a music lesson, free time play, a clay activity, a writing activity, an oral/motor activity, dressing and reading for home (J24). Although Ms. Labo had been the lead teacher since approximately late October or early November, the two assistants had only begun working that day (J25, Labo, see Medieros). In the classroom were Barbie and her two special needs peers. Barbie’s program also has, depending on the day, either two or three typically developing peers in the class. Barbie appeared very comfortable with the routine of the class and was, with the exception of transition times, smiling or laughing during the observation period; Id. Dr. Schwartz was very impressed by how much Barbie learned by watching other children. Barbie interacted with the typically developing children, engaged in imaginative play, was able to mimic behavior and showed good receptive language skills following directions and appropriately made choices when asked to do so (J24, see also Labo, Medieros). During a painting activity Barbie appropriately verbalized “Ba” (for Blue) and “pahn” (for pen). She also spontaneously responded “all done”. Dr. Schwartz concluded that Barbie was appropriately placed (J24). She did suggest however that the program include a way for Barbie to identify classmates; Id.
26. Dr. Warner prepared an assessment of Barbie in December 2003, using the Bayley Scales of Infant Development and the Vineland Adaptive Scales (Vineland) (J6). On the Bayley II, Dr. Warner assessed Barbie to have a mental scale of 15 months and a motor scale of 18 months; Id. On the Vineland, Dr. Warner found that Barbie’s communication to be at a seventeen-month level; however she also found her receptive communication skills to be at a 30-month level with expressive communication at a fourteen-month level (J6). She assessed her daily living skills, motor skills and written expression at an eighteen-month level and her socialization skills to range from a thirteen to fifteen month level (J6, but see J28). Dr. Warner, despite finding increases from previous testing done in December, found that Barbie was not making progress because she only showed four months of progress on the Bayley Infant Scales in an eight month time period (Warner, J6).
27. In approximately early January 2004 Nicole Lembo replaced Janet Juntunen as Barbie’s SLP (Lembo).24 Ms. Lembo had previously serviced Barbie in the summer program (Lembo). Ms. Lembo is certified as a reading teacher and a speech/language and hearing teacher. Ms. Lembo received her ASHA certification in June 2003 (J60). She has good knowledge of ASL and had in her practicums initiated an augmentative communication system for a child with autism and had integrated computer technology in therapy (J60). She is not however an expert in augmentative communication; see (J60). Ms. Lembo’s current work with Barbie focuses on articulation (Lembo). She has also introduced sign language related to concepts Barbie is learning, integrates speech and language with signs and has introduced augmentative communication (Lembo). Ms. Lembo also has gone into Barbie’s classroom so that she can incorporate class work into therapy (Lembo). She has also, through the teacher, sent home communication pictures but has not recently gone to the home due to Parents’ scheduling issues. As such, she has not specifically worked with Parents about how to incorporate communication in the home, relying on Mother to ask questions at the parent/teacher meetings or through the communication book (Lembo, Mother).
28. On January 5, 2004 Kathleen Stem conducted an educational assessment of Barbie (J19). Ms. Stem is a Master’s level certified (moderate and severe needs) special education teacher with approximately twenty-eight years of experience in testing both in the public schools and in diagnostic settings (American Guidance Service Inc. and North Shore Children’s Hospital). Ms. Stem also has taught at Salem State and Lesley College (J60). Ms. Stem administered selected subtests of the Battelle Developmental Inventory (Batelle)25 and reviewed previous records and assessments (J19). Barbie’s overall performance in each developmental area was within the 1 st percentile. Her adaptive skills were at the 21-month level, a six-month increase from testing done by EI in April 2003; compare (J53, J19). Barbie’s gross motor skills were at the 25 month level, (a five month increase since April EI testing) and fine motor skills were at the 22 month level, constituting a two to eight month increase since April 2003; compare (J53, J52, J19)26 . Barbie’s expressive and receptive communication remained relatively the same as in April 2003 with a 13 th month level in April 2003, 14 th month level in January 2004 for expressive skills and a 23 month level in April 2003, 22 nd month level in January 2004; compare (J53, J19). However Barbie’s cognitive scores increased from an 11-month level to a 22-month level; compare , (J52, J19). Barbie’s personal-social scores compiled by parental report showed development at a 6 th month range. EI testing in this area show social-emotional scores at the 24-27 month level; compare (J19, J53). Ms. Stem recommended continued receipt of 1:1 specialized instruction with cueing, redirection, modeling and demonstration and hand over hand instruction when necessary. Ms. Stem also recommended continuation of related services, frequent conferences to maintain consistency and frequent communication with parents to ensure carry-over of skills (J19).
29. On January 20, 2004 Ms. Valente-Harris observed Barbie’s proposed program at SEEM (J15). During that time there were three kindergarten and two preschool children in the class. Ms. Harris did not see a sensory area or a distraction free area in the room for 1:1 instruction (J15). During most of the observation one preschool child was screaming, rocking, yelling or running away from the group; Id. The teacher reported that this was fairly typical behavior for this student; Id. The other preschooler is nonverbal. The staff was attempting to have the children identify pictures to identify activities or feelings. They were unsuccessful; see (J15). Redacted IEPs sent from SEEM show that all five children require a total communication approach and have limited communication (J80A-E). Three of these five children are on behavior management plans to address hitting, punching and kicking (J80 B,C,D). One child also runs from adults (J80C). Another child knocks over chairs (J80D). Ms. Medieros observed the program on February 6, 2004 (J12). The observation took place from 11:15 a.m. –12:45 p.m. (J12). She saw two boys in the class, one with a diagnosis of PDD, the other with a diagnosis of Downs Syndrome. She learned that the program ran from 8:30 a.m. –2:30 every day but Wednesday. On that day the program ended at noon (J12). She also learned that the preschool class consisted of one child who had recently turned five and the other was to turn six years in March 2004. These children would be attending the kindergarten program the following year (Medieros). The preschool class might possibly also have a 4 ½ year old girl. The class was set up like a typical preschool with various visuals around the room and two communication boards visible. The program had no voice output system and there was no distraction free area within the room (J12, Medieros). The class also had a computer with Intellikeys on it that SEEM staff told Ms. Medieros was used once per week. The class was staffed by a teacher certified in early childhood education (working on her Master’s degree) and a full time aide who is a licensed certified occupational therapy assistant (COTA). The class also had access to a SLP; however that SLP serviced seven classrooms and had a caseload of 32 students most with severe communication needs (Medieros). The SLP’s resume shows that he/she graduated in June 2003 but is not as yet ASHA certified and has limited experience (through a practicum) in augmentative communication (J76).27 The class also had access to a psychologist who worked half time, a full time nurse and several social work interns; Id.
Ms. Medeiros was only able to observe the child diagnosed with Down’s Syndrome because the other child was absent. The teacher was attempting to work with that child on a matching activity; however during the activity the child was signing “eat” and would not participate. He was able to self-feed but overstuffed himself requiring the assistant to frequently remove his bowl. The child was nonverbal but did make utterances and signed four times during the meal. Ms. Medeiros also observed the two kindergarten children in the class that day. She observed no communication. She was told that the staff had met Barbie when she came to visit and that Barbie immediately went to the kindergarten girl in the class and attempted to imitate what she did (J12). Ms. Medieros concluded that Barbie would not be safe in the SEEM program due to the other children’s behavioral issues. She was also concerned that Barbie would imitate these children’s negative behaviors and that the program would not meet Barbie’s cognitive, communication or social needs ( see Medieros, Labo).
30. On March 8, 2004 Ms. Walsh, a certified school psychologist,28 retested Barbie using the Batelle Developmental Inventory screening. The test was readministered because Ms. Stem had, in accordance with school procedure, destroyed the protocals of the test.29 The version used by Ms. Walsh was a screening instrument which is used to determine if further testing is necessary and is not, like the Battelle, used for educational decision making (Warner). Ms. Walsh reviewed Ms. Stem’s testing and spoke to the teacher and SLP and conducted direct testing with Barbie. The school counselor and SLP scored the testing.30 . Barbie’s scores showed essentially slight or no gains31 from testing done in January 2004 with approximately two-month gains in fine motor skills and approximately four-month gains in expressive and receptive communication (J4). However because this test was a screening instrument the scores reported were the lowest possible deviation scores and could be higher (Warner).
31. The SLP and PT also informally assessed Barbie’s progress in March 2004 (Lembo, J5, J3). Both felt that Barbie learned and modeled behavior that she saw from children in her classroom (J5, J3, Lembo, see also Labo, R1-4). Ms. Lembo noted that Barbie’s verbal skills had increased since June 2003, that she was producing more sounds and consonant/vowel word approximations. She was beginning to use two word utterances and was beginning to correct speech production with touch cues. Her spontaneous words or word approximations included “mama”, “dada”, “ba’ (for boots), “bah” (for bus), “baba” (for bye-bye), “ah” (for hi), “da” (for done), Mn (for a peers name), “ha” (for horse), “uh” (for up), “da” (for down), “ah dah” (for all done) “ba ba” or “ba” (for open), “dir” (for girl), “ba” (for boy), “da” (for dog) “ba” (for book). In June 2003 Barbie only spontaneously signed “eat”, “more” and “all done”. In March 2004, Barbie also spontaneously signed “walk”, “dog”, “jump”, “swim”, “bus”, “open”, “book”, “work” “write”, “cookie”, “help”, “wash”, “hat”, “drink”, “snow” and modeled signs when they were presented to her. Her receptive language had also expanded (J5, J3, Lembo, Labo).
32. Dr. Warner conducted a second observation of Barbie’s class on March 15, 2004 (Warner). She did not talk to any of the teachers (Warner). Dr. Warner noted that the layout of the room had improved, that Barbie was receiving more 1:1 instruction and that there was more (though not enough) use of touch cues and sign language and signs around the room (Warner). Dr. Warner also noted that Barbie attempted to verbalize “bus” and “ball” and the three syllables of a typical peers name (Warner). She also noted that typical peers sought out Barbie and that Barbie did interact with a typically developing peer when cued to do so (Warner). She also noted that Barbie was now facing the teacher at circle time and pointing to peers, participated in the songs and was able to chose her milk on the milk board (Warner, see R4, Medieros). However, Dr. Warner still did not feel that the program was appropriate because the pace of the program would continue to be too fast with typically developing peers (Warner, but see Medieros, Labo).
33. Dr. Warner also conducted testing at that time using the Wechsler Preschool and Primary Scale (WPPSI- III). She did not share the information until the day of the hearing (J82)32 . Dr. Warner felt that Barbie had made progress in the program but that her observation and testing showed that her progress was not enough because Barbie should be making at least one month’s gain in one month’s time as would be expected from a child that goes from the limited interventions of an EI program to a full day program (Warner). Dr. Warner also concluded that Barbie’s progress in this program would continue to be inappropriate because her communication would be limited because Barbie is not consistently asked to sign and sign language is not used consistently (Warner). Mother also feels that the Ipswich staff, with the exception of the SLP, do not sign or use augmentative communication consistently and have not offered a coordinated home/school communication program (Mother, see also R1-R4).
34. Ipswich believes that Barbie has made meaningful progress. Barbie is now less distractible, understands more and is producing more speech and spontaneous signing, is more independent in her ADL skills, and is making more choices (Labo, Lembo). Barbie’s socialization has also improved. She is now moving up and down stairs using alternating feet, is beginning to jump and is now able to open and close scissors independently with more consistency (Labo). However Barbie has global developmental delays. As such it is unrealistic to believe that she would make one months + progress in one month’s time (Medieros). Ipswich does not believe that Dr. Warner’s Vineland test scores are valid (Medieros). Ipswich staff has seen Barbie understand directions at a two-year-old level and expressively puts two sounds or signs together, a skill higher than the 1.5 grade equivalent that Dr. Warner has shown (Medieros). It has also observed Barbie engaging in imitation and parallel play, also a higher skill than the 1.2 level assessed by Dr. Warner. Ipswich has also seen Barbie unzipping her lunch box, using a cup and utensils properly and putting on her coat (Superman style), all ADL skills higher than a 1½ year level assessed by Dr. Warner (Medieros, Labo, see also R1-5). Ipswich also does not believe that Dr. Warner scored the WPSII-III correctly (Medieros). Although Ms. Medieros has not conducted the test recently, the scoring sheet shows that the test was not scored correctly (Medeiros, see J82). As such Ipswich believes that Dr. Warner’s conclusions should be disregarded; see (Medieros, Labo).
35. Ipswich however does admit that it has not fully implemented Barbie’s IEP. It has tried to coordinate consultation time with Barbie’s outside therapists but has not as yet been able to coordinate schedules (Labo, Medieros). It has also tried to set up a home program during the school day but has not been able to come up with a mutually convenient time (Labo, Medieros, Mother). A distraction free area was not set up until approximately November 2003. Staff observations for observation of therapy did not occur until late January or early February 2004 due to a misinterpretation of the IEP (Labo). The TEAM’s recommendations for an assistive technology evaluation and the speech and language evaluation to assess for dyspraxia have not occurred; see Record. In addition, although the teacher and SLP did go to one training to implement the recommendations for a communication system , the TEAM never reconvened to consider the CEC evaluation; see (Labo, Lembo, Record). Some of the CEC suggestions for augmentative communication, such as the recommendation for a touch screen computer and adaptive switches) have not been followed and although Ipswich has the Intellitools and Cheap Talk technology recommended by CEC, it is not in use despite some attempt to try these technologies (Medieros). Total communication (including sign language) is not infused throughout the day; see (Labo, R1-R4). Ipswich feels however that if compensatory education is warranted, Barbie would more appropriately benefit from additional therapies, technology, consultation and/or home programming rather than a different program (Medieros).
36. Ipswich has, after feedback from the Hearing Officer during the hearing, contracted with two consultants33 that will provide consultation and training to the staff about implementing assistive technology and augmentative communication strategies (Medieros, Harris). It is also willing to have a staff member of the Beverly School for the Deaf to teach the staff sign language and ways to use sign to facilitate Barbie’s language (Harris, see also Medieros). The staff is willing to receive this training (Labo). Parents, in the interim, agree to receive these consultations (Stipulation).34
FINDINGS AND CONCLUSIONS
The Parties agree and the IEP reflects that Barbie has global developmental delays that require a full day, year long highly structured small self contained preschool program that uses a total communication system that incorporates verbal language, pictures, signs, gestures, and assistive technology. The IEP also requires that this placement provide constant repetition of activities and routines, 1:1 interaction in a distraction free area and be taught by appropriately trained personnel to facilitate Barbie’s understanding, redirect her attention and facilitate her interaction with others (J1). At issue is whether the program and services that Ipswich offered to Barbie were appropriately implemented so as to provide her with a free appropriate public education (FAPE) in the least restrictive environment (LRE). The Parties also disagree as to whether the amendment that proposes that Barbie be included for part of the day with typically developing peers is appropriate. The final issue is what would be an appropriate remedy if Ipswich is found to have denied Barbie a FAPE either through lack of implementation or failure to offer an appropriate program.
Under the federal FAPE standard an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child, and must meet all of the child’s identified special education and related service requirements, including academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984).
Furthermore, special education and related services must be provided in the least restrictive environment; i.e., to the extent appropriate, with children who do not have disabilities, so that programs and services are implemented in separate settings only when, because of the nature and severity of the child’s disability, they cannot otherwise be provided effectively; 20 U.S.C. 1412 (5)(A).
FAPE also entails complying with the procedural requirements of the IDEA; a school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA) ”.
The law also requires that the school district implement all accepted elements of the IEP without delay once a parent accepts the IEP; see 603 CMR 28.05(7)(b). The First Circuit has indicated that noncompliance that affects the provision of an educational benefit amounts to a denial of FAPE. Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990), see also W.G. v. Board of Trustees of Target Range School District , 960 F.2d 1479(9th Cir. 1992), Green County Board of Education , 102 LRP 39656 (Alabama Department of Education 2002), see also Houston Independent School District v. Bobby R. , 200 F.3d 341,349 (5th Cir. 2000), Sioux City Community School District , 103 LRP 37969 (Iowa 2003) (failing to implement a substantial or significant provision of an IEP constitutes a denial of a free and appropriate public education).
Ipswich has admitted that it has not implemented parts of Barbie’s IEP. Some of this lack of implementation, such as staff observation of therapy, was due to misunderstanding regarding the requirements of the IEP. In other areas, Ipswich has tried to coordinate with Barbie’s outside therapists and has tried to implement a home program but has not yet found a mutually agreeable time for consultation and home programming. The assistive technology evaluation was not done because Ipswich agreed to Parents’ request to wait for an Easter Seals evaluation. The Intellitools technology was not utilized due to problems hooking it up to the SLP’s commuter. Delays have occurred in setting up a distraction free area and utilizing the Cheap Talk technology. Sign language is not fully used because the teacher and paraprofessionals have not received training in sign language and are learning it on the job. The school SLP’s recommendation (and TEAM’s adoption ) of a speech and language evaluation to assess for dyspraxia have never been followed up.35 Portions of the summer program were not appropriate because it contained too many children, did not provide a distraction free area for Barbie to work and did not have the total communication approach Barbie requires.36
While Barbie’s teachers have been well intended, and none of this noncompliance has been willful, the law allows no “good intent” exception to the school district’s obligation to implement those services that will provide a FAPE to a child. While not all noncompliance is a denial of FAPE, Ipswich’s failure to implement these parts of the IEP have impacted Barbie’s ability to meet her communication goals and objectives and have thus denied a FAPE to Barbie.
However, the SEEM TLC program is not an appropriate remedy for noncompliance. The evidence presented37 shows that while its staff may use sign language more consistently than Barbie’s current placement, neither the peers nor the ABA and Floor Time approaches are appropriate for Barbie, the program does not appear to have the appropriate assistive technology equipment or a SLP equipped to deliver these services and in the fall of 2004, might be a program where Barbie would have no preschool peers. The summer program is considered by SEEM staff to be only recreational in nature. In addition the program is too restrictive for Barbie.38 As such, the SEEM TLC does not provide a FAPE to Barbie and can not be a remedy for compensatory services or as prospective relief to remedy an inappropriate program.
Parents have asked for an order for Ipswich to locate another out of district day program if the SEEM TLC program is found to not provide a FAPE for Barbie. However the law requires that disabled children be educated, to the extent appropriate, with children who do not have disabilities and that programs and services are implemented in separate settings only when, because of the nature and severity of the child’s disability, they cannot otherwise be provided effectively; 20 U.S.C. 1412 (5)(A).
While there are many areas of noncompliance that entitle Barbie to compensatory education, the evidence also shows that Barbie has made some gains in the Ipswich program and that the Ipswich staff is capable of and can, follow through with making the modifications to make this program appropriate. The Parties agree, and the record reflects, that Barbie’s fine motor and gross motor skills have improved. She is less distractible and she has made some gains in her verbalizations and receptive language. The record also shows that Barbie’s socialization skills have expanded. She has also made some gains in expressive language. The Hearing Officer notes Dr. Warner’s assertion that Barbie should make at least one month’s progress in one month’s time. However Barbie has global developmental delays, and as such, Ms. Medieros’s testimony that Barbie will and has progressed but will do so at a slower rate is consistent with repeated EI assessments and with comparison of the initial school assessment and the Batelle screening.39 As such, her testimony is given more weight.
However, the record shows that while Barbie may not make one month’s progress in a month’s time Barbie has not made meaningful educational progress in communication. Ipswich admits, and the videotapes show, that language opportunities are lost because the staff does not consistently sign or fully incorporate the assistive technology and augmentative communication that everyone agrees that Barbie requires. Ipswich however has affirmatively taken steps to correct its noncompliance. It let go a teacher that was not complying with the IEP. The new teacher modified the classroom program and ordered dividers so that a distraction free area would be set up. It did not follow through with sending staff to Barbie’s therapy until approximately February but did comply when the omission was brought up at a parent/staff meeting. It also (although at the Hearing Officer’s suggestion during this hearing), contracted with appropriate consultants in augmentative communication and assistive technology. The staff will receive training in sign language. Consultation with outside providers can be set up by inviting outside providers to participate in parent/staff meetings or setting up a consistent phone consultation. A home program can be set up during school hours.40 . Most importantly, it has admitted that it has made mistakes and is willing to correct them and learn from others who have the appropriate expertise. There has been no other program presented that can deliver all the communication services that Barbie requires. In addition, Barbie does not handle transitions well and requires consistency. Barbie has, since January 2004, had consistent staff who adore this child. The videotapes show that she adores them. As such, it makes sense that Barbie should remain in the program at least in the interim, receive an updated speech/language evaluation to assess for dyspraxia and allow the consultants (or other neutral mutually agreed upon providers) to continue their consultation, assess Barbie’s communication needs, assess whether the program is working and then reconvene the TEAM to incorporate further program modifications, if appropriate.
Parents have also asserted that Barbie’s amended IEP, in addition to not being implemented, is also inappropriate because it includes typically developing peers for part of the day. However, the class as composed meets the definition of a substantially separate program for preschool program. The law requires that substantially separate programs for young children shall be those programs for three and four year olds that are located in a public school classroom or facility that serves primarily or solely children with disabilities. Substantially separate classrooms shall be programs in which more than 50% of the children have disabilities. Substantially separate programs operated by public schools shall limit class sizes to nine students with one teacher and one aide; 603 C.M.R. 28.06 (7)(a) (1)(2). The program as currently configured meets these criteria. Barbie’s IEP does call for a class not to exceed six children. The record shows that in February, one special needs child joined the classroom making a class size of seven for parts of some days on all days but Tuesday. A class of seven children is larger than the IEP’s limitation of six children; however no one has shown that the addition of one extra typically developing peer prevents the staff from delivering the services that Barbie requires. The record also shows that Barbie continues to receive 1:1 special education instruction when these peers are in the room.
Parents have asserted that the class pace is too fast when typically developing peers are in the classroom. A preponderance of the evidence shows however that Barbie does benefit from being included with typically developing peers. The videotapes show that she imitates their actions in motor group and other activities, she is not only aware of them but is willing to participate when they include her and affirmatively seeks them out. These peers also provide appropriate language models for Barbie. The testimony of Barbie’s teacher, SLP and Ms. Medeiros is consistent with numerous documents and the videotape.
As such, this Hearing Officer finds that Barbie not only is not harmed by, but benefits from, and requires a program that allows for some inclusion with typically developing peers in order to make meaningful educational progress. Barbie also requires a program that provides (subject to reassessment from the consultants) a total communication approach incorporating sign language, gestures, augmentative communication and assistive technology, provides consistent consultation between home, school and outside providers, provides 1:1 assistance in a distraction free area when needed and OT, PT and speech therapy. Parents, in their rejection, have indicated that Barbie should have an additional 30-minute session of both OT and PT and an additional thirty-minute session of speech/language therapy. Neither NSCC nor Ipswich recommended additional OT or PT. The evidence shows that Barbie could benefit from having Ms. Lembo, when she is in the classroom to observe, participate in the classroom and model sign language for Barbie and the staff. However, no other evidence was presented regarding an additional session of speech/language therapy. Barbie is going to receive an updated speech/language evaluation to assess, in part, for dyspraxia. The SLP should also assess Barbie’s other communication needs and make a recommendation for speech/language services for the TEAM to consider.
Having found that Barbie is entitled to compensatory education and that the SEEM Collaborative does not provide a FAPE and that the Ipswich program with modifications can provide a FAPE in the interim while evaluations are pending, the Hearing Officer must determine what would constitute appropriate compensatory education for Barbie. Compensatory education can take the form of reimbursement for private services, additional services or placement in an appropriate program for a period of time. Barbie should have received a 44-week, 25½ hour, school week program (1122 hours); see J1, J1A. Barbie did not take advantage of two hours a week of programming due to private commitments and is not entitled to compensatory education for those two hours per week (2 x 44) (88 hours). In addition, the 4.5 hours per week of OT, PT and speech therapy (198 hours) were implemented. The one-hour weekly home visits were also substantially implemented and both parties share responsibility for lack of implementation of the weekly home visits (88 hours). This leaves 17 hours of weekly programming that were not adequately implemented and subject to compensatory education (748 hours). This lack of implementation largely involved communication goals and objectives that impacted all levels of her program and denied her a FAPE. However, the evidence shows that Barbie attended the program and did receive services that were not totally meaningless. Compensatory services are an equitable remedy. The amount of compensatory services must also be balanced with the services received. Barbie’s right to receive services must also be balanced with her ability, due to her distractibility, and young age, to adequately make use of additional services. Equity dictates that Barbie should receive 374 hours (an average of 8 ½ hours per week per year) of compensatory services. The Parties will be given an opportunity to agree on a compensatory education package. If the Parties are unable to agree, the TEAM that is convened to address the recommendations from the speech and language evaluation and the recommendations of the consultants, will also address an appropriate compensatory services package. If there remains a dispute regarding compensatory services that would be appropriate, the Parties may come back to the Hearing Officer on this issue.
ORDER
Ipswich’s current IEP was not fully implemented, and as currently configured, does not provide a FAPE to Barbie. The SEEM TLC program does not provide a FAPE to Barbie and is too restrictive a program. However, Ipswich’s program can be modified to meet Barbie’s needs. The program shall be modified as follows:
· Ipswich will arrange that Barbie immediately receive an updated speech/language evaluation from an SLP qualified to assess for dyspraxia.
· It will also immediately ensure that Barbie’s program receive ongoing consultation from specialist(s) in augmentative communication and assistive technology as well as training in sign language.
· It will also, with Parents, immediately set a time during school hours for a home program meeting and will set a time for consultation with Barbie’s outside providers.
· The TEAM will reconvene to review the assessments from the speech/language evaluation and the consultants (as well as Barbie’s progress and other recommendations contained in the decision) and amend the IEP if appropriate. If the Parties are not able to agree on a compensatory services package, the TEAM will also reconvene to consider how to implement 374 hours of compensatory education services.
By the Hearing Officer,
Joan D. Beron
Date: June 17, 2004
1
Barbara or Barbie are pseudonyms used for confidentiality and classification purposes.
2
Exhibits J13, J14, J18, J21, J30 were excluded from evidence. Exhibit 18 was excluded over objection of the School District. J3 and J5 were admitted over the objection of Parents’ Counsel. R5 was admitted over the objection of School Counsel. Parents’ objection to J19 was withdrawn during the hearing.
3
SEEM is an acronym. No one at the hearing knows what what the acronym SEEM stands for.
4
Barbie was given tubes. She no longer wears tubes and has good hearing in both ears (Warner). Audiological testing however shows mildly depressed low frequencies and borderline normal to normal mid range frequencies suggesting further testing to rule out hearing loss; see (J52).
5
Floating Hospital for Children is part of the Tufts New England Medical Center in Boston, MA.
6
Dyspraxia (aka developmental verbal dyspraxia of childhood apraxia of speech) is a neuerological motor speech disorder that affects the ability to plan, produce and sequence the precise series of movements of the tongue, lips, jaw and palate necessary for intelligible speech.
7
One session occurred on February 26, 2003. The other sessions occurred on April 14 and 16, 2003. The evaluation was received on September 8, 2003 (J52).
8
CCSN conducted a PT, OT and audiological evaluation and recommended that Barbie receive OT and PT as part of her program. These services are not in dispute. CCSN also made recommendations not related to her preschool program; see (J52).
9
Dr. Warner is a licensed clinical child psychologist at the North Shore Medical Center. She holds a Doctor of Counseling Psychology degree and has been a licensed psychologist since approximately 1991 (J60).
10
Barbie also attended (and still attends) private aqua therapy and hippotherapy (horse back riding) (Mother, Labo).
11
Dr. Warner used the WPPSI-III receptive language subtest. The SLP used the Auditory comprehension subtest of the Preschool Language Scales (PLS-4).
12
Some of the issues involved scheduling of therapies and the home program, coordination of private therapies with school, coordination of classroom and related services, home/school communication, establishment of a visual block to cut down on distractions in the classroom, balance between nutrition and therapy needs.
13
Ms. Harris is a licensed school administrator and special needs teacher with approximately eight years of experience overseeing special education programs from preschool through 5 th grade and about sixteen years of experience as a special education teacher (Harris, J60).
14
Ms. Medieros is a certified special education teacher and administrator with over twenty years experience working with special needs preschool children; see (J60).
15
Weekly logs charted from October 27, 2003-December 5, 2003 show that Barbie did not use the “first, then” board or picture schedule consistently (or it was not charted) (J26).
16
Ipswich told Parents that the wait for an evaluation from Easter Seals could be 4-6 months. Parents indicated that they knew about the time delay but would still like Easter Seals to do the evaluation (J32).
17
The classroom weekly log running from 10/27/03-12/5/03 shows Barbie could understand directions and imitate peers.
18
Dr. Warner indicates that the visit was in December 2003 (Warner). SEEM’s correspondence indicates that the visit was in November 2003 (J31).
19
Dr. Warner is not an SLP and has no expertise in augmentative communication (Warner). It is not known whether the keychain communication board for each child was pursuant to their IEPs.
20
Three typically developing peers are included in the classroom on Monday and Friday. Two different typically developing peers are included for part of the day on Tuesday, Wednesday and Thursday. There are never more than seven children in the classroom. The student teacher ratio is usually 1:1 on Tuesday, Wednesday and Thursday and at least 2:1 on Monday and Friday (Labo, Medieros).
21
North Shore Children’s Hospital also recommended one hour of outpatient OT per week to address strength, fine motor and self-care skills (J52). It is unclear how the amount of time for school based services and outpatient services were determined.
22
Specific systems are highlighted in the report.
23
The observation took place from 1:15 p.m. to the end of the school day at 2:35 p.m.
24
Ms. Juntunen is an ASHA certified SLP with experience in augmentative communication (J60). Ms. Lembo replaced Ms. Juntunen because she retired (Medieros).
25
The Battelle is a standardized individually administered battery designed to identify strengths and weaknesses in communication, social, adaptive, motor and cognitive skills in children age birth to eight years. The Battelle incorporates structured testing, parent interview and observation of the child in natural settings (P19).
26
EI testing done in April 2003 showed fine motor scores of 18 months. April 2003 MDEC testing scored fine motor skills at 18 months; compare (J52, J52).
27
All the names of the SEEM staff are redacted (J76-79).
28
The testing was done by a different evaluator because Ms. Stem was medically unavailable to readminister the test.
29
Parents’ Counsel had requested the protocals in discovery. The discovery request was received by Ipswich staff after the protocals were destroyed. The Parties agreed that this test could be readministered and redid the testing. Ms. Stem was not available to conduct the retest.
30
Both tests show age equivalents; however Ms. Stem’s testing shows standard scores and percentile scores. This testing contains raw scores (without a conversion chart) and age equivalents.
31
Barbie’s social emotional scores jumped from a six month to a 20-month level; however scores were obtained by Mother in January and the teacher in March 2004; see (J4). Gross motor and cognitive scores remained the same.
32
Dr. Warner indicated that she forgot about conducting the test (Warner).
33
The consultants are DK associates (for assistive technology) and Lynn Chambers (for augmentative communication).
34
The Parties entered into an interim agreement regarding receipt of consultation pending this decision and agreed that this agreement would in the interim amend the IEP.
35
It is also noted that the North Shore Children’s Hospital has not followed up with their own recommendation to assess for dyspraxia nor have they implemented a home communication program. The Hospital however is not a party to this action.
36
The evidence shows however that the special education teacher providing supervision for Barbie’s teacher was qualified to provide such supervision. Nothing in the record indicates that the teacher was unable to implement the supervisor’s suggestions.
37
SEEM was issued a subpeona to testify about its TLC program but refused to comply.
38
Barbie’s need for inclusion with typically developing peers will be addressed supra.
39
The screening shows the lowest possible scores. Barbie’s progress may in fact be higher. Ms. Stem is an experienced evaluator. However, the protocols were destroyed and Ms. Stem is not available for testimony.
40
The record shows that Ipswich has attempted to set up a home program during school hours and has offered parent reasonable flexibility. This is all that is required. While it is understandable that it is hard for Parent to juggle her work obligations, her obligations to Barbie and the rest of her family, the home program is necessary for Barbie to be able to consistently carry over the skills learned in all settings in order to achieve meaningful educational progress, and as such, both Parties must make efforts to ensure that this home program occurs during school hours.