COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Blackstone-Millville R.S.D. BSEA No. 08-3965
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC Sec. 1400 et seq.; Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
On January 16, 2008, the Blackstone-Millville Regional School District (Blackstone-Millville or School) filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order allowing it to refer Student for an eight-week extended evaluation, on a residential basis, at one of two previously-identified hospitals. The School alleged that Student, who has multiple disabilities and whose private, special education day school had terminated him because of his behavior, needed an such an evaluation in a medical setting to stabilize him and assess his needs. Parents opposed any out-of-home placement for Student, including for an evaluation.
After a telephonic pre-hearing conference and a motion session,1 a hearing began on February 26, 2008 at the Blackstone Public Library. Immediately after the School’s opening statement, but before any testimony was taken, the pro se Parent orally requested a postponement of the hearing because he had been too ill to prepare2 and was too ill to participate on that date. With the School’s assent, the hearing was postponed to March 14 and 20, 2008. Parents were given leave to file their exhibits and witness list on March 12, 2008. On March 13, 2008, Parents again requested a postponement, alleging serious illness of one Parent, as well as a pending evaluation of Student. The School did not oppose such postponement, and the hearing was rescheduled to May 7 and 9, 2008.
On May 6, 2008, Parent requested yet another postponement based on parental illness, and the Student’s being in the midst of an independent evaluation, and the School opposed the request. A final postponement was granted and the hearing was resumed on June 18 and 19, 2008, at the Blackstone-Millville special education administrative offices. At the beginning of the first day of the resumed hearing, on June 19, the parties stipulated that the relief sought by Blackstone-Millville was an order allowing it to refer Student for an extended evaluation in a residential setting in the event that no appropriate day program would accept Student for such an evaluation or on a long-term basis.
The School was represented by counsel and Parents proceeded pro se . Each party had an opportunity to examine and cross-examine witnesses and submit documents into the record. The documentary record consists of the School’s exhibits S-1 through S-59. Parents submitted exhibits P-1 and P-2. The record also consists of approximately 4.5 hours of tape-recorded testimony. Parents were allowed an opportunity to submit rebuttal evidence but did not do so. The BSEA received a written closing argument from the School on August 4, 2008 and none from the Parents. The record closed on that day.
Those present for all or part of the proceeding were:3
Student’s Mother
Student’s Father
Rachel Lawrence Director of Student Services, Blackstone-Millville R.S.D.
Michele Sherwin Special Ed. Admin. Intern, Blackstone-Millville, R.S.D.
Patricia Larson Exec. Director, Cardinal Cushing Center, Braintree
Dianne Dunne School Nurse, Cardinal Cushing Center
Kirsten Boyle Teacher, Cardinal Cushing
Jason Rasher Behavior Specialist, Cardinal Cushing
Ronald Shepherd Teacher, Cardinal Cushing
Chris Hayes Social Worker, Dept. of Children and Families
Amy Boone Children’s Services Coordinator, Dept. of Mental Retardation
Jackie Berman, Esq. Attorney for DMR
Regina W. Tate, Esq. Attorney for School
Kathleen Yaeger, Esq. Attorney for School
ISSUES PRESENTED
The issue for hearing is the following: whether the School may refer Student to an appropriate residential facility for an extended evaluation in the event that no appropriate day program is available or willing to accept Student for either educational services or an extended evaluation.
POSITION OF SCHOOL
Student has complex and severe disabilities, primarily autism, with significant deficits in the cognitive, communication, and behavioral domains that have a global effect on his functioning. In January 2008, Student was terminated from his day school placement at the Cardinal Cushing Center because of multiple incidents of unsafe behavior including aggression, self-injurious behavior, and bolting that interfered with learning and with Cardinal Cushing’s ability to keep Student safe. To date, Student cannot be safely educated in the community, and the School has been unable to locate an appropriate day school placement. As a result, Student has been without an educational program since December 2007.
Based on the parties’ stipulation during the hearing in this matter, the School has proposed an IEP for an interim or long-term private day school placement, if such a placement accepts Student, and an interim residential evaluation if no such placement is available. Unless the option of a residential evaluation is deemed appropriate if no day placement can be secured, Student will continue to be without the educational services that he urgently needs.
POSITION OF PARENTS
The behavioral problems that Student exhibited were largely caused by dental and medical issues that Parents either have addressed or are in the process of addressing. Any out-of-home evaluation will be disruptive and traumatic to Student. For this reason, Student’s behavior in such a setting would be atypical, and evaluations would not be accurate or reliable. On the other hand, Parents are willing to have Student placed and/or evaluated in a non-residential setting.
FINDINGS OF FACT
1. Student is sixteen years old and lives with Parents and family within the Blackstone-Millville Regional School District. Student enjoys swimming with his family and watching movies. In school, with appropriate support and reinforcement, Student is hard-working, agreeable, willing to do tasks, and interested in social interaction with adults. (S-28)
2. Student’s profile is not in dispute. Student has multiple, significant disabilities, primarily autism, with deficits in the cognitive, communication, and behavioral domains. He communicates with a combination of two-word utterances, signs and a communication book. Student can perform some daily living, self-care and household functions independently or with support. In a school setting, with reinforcement, Student is able to attend to a task and complete one and two-step routines and follow a daily schedule. His performance in these areas improves with increased school attendance. (S-59)
3. Student has a longstanding history of problematic behaviors that interfere with his functioning both in and out of school, including aggression towards adults (hitting), self-injurious behavior (head banging, body slamming), and bolting. Parents have observed that these behaviors are triggered or worsened when Student is ill or in physical pain from medical or dental problems. (S-59, P-2; Hayes) The School has asserted that behavioral problems have arisen or worsened at times when Parents have altered or discontinued Student’s prescribed medications contrary to medical advice. (Lawrence, P-2, S-13) A behavioral assessment conducted in February 2000 concluded that the function of Student’s behaviors was avoidance of non-preferred activities or protest. (S-55). A recent assessment, conducted in May 2008, reached similar conclusions. (P-2).
4. There is no dispute that in order to make educational progress, Student requires a highly structured environment with little noise, few distractions, a high level of staff, and behavioral supports. (S-59)
5. Until November 1999, when he was approximately 8 years old, Student attended public elementary schools within the Blackstone-Millville RSD, usually in self-contained classrooms with a 1:1 aide. At least some of the time, Student attended school for half days. (S-51)
6. In November 1999, the School placed Student at The Groden Center, Inc., a private day school for students with developmental disabilities located in Providence, RI. While there, he participated in a structured, full-year program focusing on communication, behavioral control, self-help skills, imitation, play skills, social interaction, and fine and gross motor skills. (S-55) As of the 2005-2006 school year, Student’s program consisted of life skills academics, vocational activities and physical education as well as speech/language and occupational therapy. (S-48)
7. Student attended the Groden Center for over six years, from 1999 through most of the 2005-2006 school year. (S-46, 47, 48). In late April 2006, the TEAM issued an IEP continuing Student’s placement at the Groden Center for the 2006-2007 school year. The record does not indicate whether or not Parents accepted this IEP. (S-47)
8. Student stopped attending the Groden Center in June 2006, possibly because Parents were having problems transporting him. (S-59) In a letter dated July 28, 2006, the Program Director of the Groden Center conveyed this information to the then-Director of Special Education for Blackstone-Millville. This letter further stated Groden’s recommendation for a “specialized, year round program providing continuity of care and ongoing supervision across all environments…[with] the ability to manage his severe/profound cognitive deficits and manifestations of autism diagnosis including severe behavioral challenges…Priority should be given to consideration for residential placement, which would provide consistent, intensive services in addition to his school day.” The letter further noted that Student could not, at that time, return home or to school due to “various health and safety concerns.” (S-46)
9. In or about July 2006, Student temporarily moved to Rhode Island with one Parent. While there, he was hospitalized after behavioral outbursts, first at Hasbro Children’s Hospital in Providence and then at Bradley Hospital, also in Providence. Student attended the in-house school program at Bradley until his discharge on September 6, 2006. According to Bradley Hospital records, Student “stabilized quickly within the structure of the milieu and the classroom.” (S-43).
10. Student returned to his home in approximately August 2006. (Lawrence) From September through November 2006, the School sent referral packets to five private day schools (NECC, League School, Evergreen, May Center, Darnell School,) and one collaborative (BICO). All of these programs declined to admit Student. The response letters contained in the record do not provide explicit reasons for rejecting Student. (Lawrence, S- 33, 34, 38, 40, 41, 42). The School also sought interim services from HMEA and Beacon Services. (S-37, 39)
11. In approximately February 2007, the School referred Student to the Cardinal Cushing Center in Braintree, MA (“Cardinal Cushing”).4 (S-29, 30)
12. Meanwhile, beginning in about December 2006, while the placement search was underway, the School contracted with Ms. Jennifer Schepis to provide interim services to Student, after regular school hours. (Lawrence) (The record does not indicate whether Ms. Schepis was a teacher, behavior therapist, or other professional.) At least some of the sessions were home-based and some appear to have taken place in a school building. (Lawrence)
13. Ms. Schepis conducted an assessment of Student’s functioning and issued a report on January 7, 2007. This report stated that Student was hard-working and agreeable and enjoyed social interactions, but “has shown no safety awareness in the school setting,” e.g ., ran into the street to Parents’ car without looking, and climbed on tables and counters within the classroom. Student had some self-help skills, including handwashing, toileting, and some dressing skills. Student communicated with one-word utterances, signs, or his communication book. As was the case in previous settings, Student exhibited aggression, bolting, and self-injurious behaviors. These occurred both when Student was receiving prescribed medication and when he was off his medication.5 (S-32)
14. Student did not receive the interim services consistently. At some point, Parents told Rachel Lawrence, the Director of Student Services that they did not want Student receiving these services in the school setting. In a letter dated March 5, 2007, Ms. Lawrence stated, “[w]hile this application [to Cardinal Cushing Center] is in process, [Student] should be allowed to return to school at the Blackstone-Millville Regional Middle School for 5 hours per week. Per our last conversation regarding this service, I am aware that you are not in favor of [Student] returning to school. Please be advised that [Student] must be receiving services while awaiting an academic placement. “ (Lawrence, S-29)
15. On March 28, 2007, the school issued an IEP amendment calling for Student’s placement, on an interim basis, at the Cardinal Cushing Center in Braintree for purposes of conducting a comprehensive evaluation of Student. (S-25, 27, Lawrence) The IEP called for Student to make a gradual transition into the program, slowly increasing the amount of time spent in school each day. (S-27, 28) Parent accepted this IEP on April 25, 2007. (S-28)
16. Student’s initial transition, which began on May 2, 2007 was successful. Between his entry and June 8, 2007 a functional behavioral assessment (FBA) was conducted by Cardinal Cushing’s behaviorist, Jason Rasher. (Rasher, S-19) In a report dated June 18, 2007, Mr. Rasher identified Student’s most challenging behaviors as bolting and self-injurious behavior (flopping, hitting arms onto his desk, head banging and body slamming), which occurred at low levels with the exception of arm banging, as well as 10 isolated incidents of “minor aggression” (grabs and one-handed pushes). (S-19) The FBA report did not identify antecedents to the behaviors, or recommend particular interventions. (S-19, P-2)
17. Mr. Rasher’s report did comment that Student appeared to do better with relatively low levels of noise and few distractions, and a gradual transition into group settings. Further, the report stated that Student had a great sense of humor, learned tasks quickly, and “seamlessly transitioned into his current classroom.” Mr. Rasher recommended a 1:1 aide with “at least a base knowledge of ABA principles and experience working with autistic children… [and]… strong behavioral, environmental, sensory, and speech supports,” as well as regular review of his case by a Board Certified Behavior Analyst (BCBA). Finally, Mr. Rasher supported the previously-recommended transfer of Student’s psychiatric care to Cardinal Cushing’s Visiting Psychiatrist, Dr. Videlefsky. (S-19)
18. Student entered Cardinal Cushing as a day student in mid-June of 2007. He subsequently completed the summer program there, from late June through mid-August. (S-27)
19. In September 2007, Blackstone issued an IEP continuing Student’s placement at Cardinal Cushing through December 20, 2007. (The IEP indicated that the School would conduct a three-year re-evaluation in December 2007) Under this IEP, Student’s program was to consist of functional academics, communication services, occupational therapy, reading and math instruction, health, “HSS”6 and adaptive physical education. Parents accepted the IEP on December 11, 2007. (S-18A)
20. Beginning in approximately October 2007, Student’s behavior and performance began to deteriorate. (Shepherd, Lawrence) A total of five incident reports issued on four different days in October 2007 show that Student engaged in aggressive and/or self-injurious behavior. On each occasion the incidents consisted of one or more of: screaming and kicking his Parents’ car doors and windows, banging on desks with his arms, flopping on the floor, striking a staff member (on one occasion). (S-11 – 17; Rasher)
21. Both Cardinal Cushing and Blackstone-Millville attributed the escalation in Student’s behavior to Parent’s discontinuing one of Student’s medications, and making other medication adjustments without proper medical oversight.7 (P-2, S-3) Parents, on the other hand, asserted that pain from dental problems caused Student’s behavior to worsen, during October and November 2007, and that his behavior improved after Student received dental care in November 2007. (P-2, S-8).
22. Similar incidents took place between approximately December 10 and 19, 2007. On December 14 or 15, Student appeared to be suffering from pain in his ears, and Parents took him for medical treatment. Parents attributed the behavioral problems to Student’s ear pain. (S-10 – 14, P-2)
23. In total, Cardinal Cushing documented 16 behavioral sixteen incidents from October 5 through December 19, 2007, two of which resulted in physical restraint. (P-2)
24. On December 17, 2007, Cardinal Cushing informed Father that it would be terminating Student’s placement because staff could not keep him safe. Father objected. After a TEAM meeting in December, Cardinal Cushing did, in fact, terminate the placement. (Hayes, Lawrence, P-2)
25. Neither Cardinal Cushing nor Blackstone-Millville conducted a second functional behavioral assessment either before or after Student’s placement was terminated. There is no evidence on the record indicating that Cardinal Cushing had ever developed a formal behavior intervention plan for Student, either immediately after the initial FBA by Mr. Rasher, or at any time therafter. (P-2)
26. On January 7, 2008, after Student’s discharge, the School issued an IEP calling for an assessment in a “inpatient interim educational evaluation to assess his behavioral, medical, physical, nutritional, psychological skills and determine the appropriate use of medications to assist [Student] in management of his disability. The start and end dates for services were listed as “1/7/2008 – 6/30/2008; however, the School anticipated that an evaluation would last approximately 45 days. No specific site for the evaluation was named in the proposed IEP. (S-1B, Lawrence)
27. The basis for this recommendation stated on the IEP was Student’s unsafe behaviors at home and at school, and his consequent termination of his Cardinal Cushing placement. (S-1B). It was the School’s position that Student needed further evaluation, particularly of his medication status, that it had exhausted all possible day placements feared for Student’s safety. (P-2, Lawrence)
28. Parents rejected the proposed IEP on January 7, 2008. (S-1B) Parents informed the HMEA behavioral specialist, Jeff Proos, that they did so because they believed that Student’s behavior would deteriorate if he were separated from his family, and that he would be medicated to control his behavior making an accurate assessment impossible. (P-2) (At hearing, the Parents’ DCF social worker, Chris Hayes, agreed with Parents’ position). Upon Parents’ refusal to consent to such an evaluation, and the School initiated this action.
29. In March 2008, then-DSS, which had been providing supportive services to Student’s family, referred Student to Horace Mann Educational Associates (HMEA) for a new FBA. The purpose of the FBA was to “gather information about [Student’s] aggressive, self-injurious behavior in order to identify the function(s) of his aggression and self-injury and to make recommendations as to appropriate placement and services.” (P-2)
30. The assessment was conducted by Jeff Proos, who has a Master’s degree in education and who is a BCBA, and consisted of a review of pertinent records, meetings with Student and his family, interviews with the Director of Student Services and Mr. Rasher (Cardinal Cushing’s behaviorist), and observation of Student at home and at the YMCA (where Student goes swimming).
31. In a report dated May 19, 2008, the evaluator hypothesized that “potential functions for Student’s aggression and self-injury include social attention, access to desired items, and escape.” The evaluator stated that “[Student] needs to be in school.” He suggested that Student was “an appropriate candidate as a day student in an ABA school established to work with children with autism…and that is able to safely manage his self-injurious and aggressive behaviors.” The evaluator stated that in a placement operating under ABA principles, there would be ongoing assessment of target behaviors and appropriate intervention by trained ABA staff with oversight by a BCBA. (The evaluator noted that Cardinal Cushing had not documented antecedents to Student’s behavioral incidents, and did not seem to have a systematic plan for eliminating target behaviors, other than calming Student down and creating a “safe room” for Student.) (P-2)
32. In addition to recommending a day school placement, Mr. Proos suggested in-home behavioral supports and intensive parent training to enable Student to generalize skills learned at school. Finally, he urged prompt treatment of medical problems at the first sign of discomfort or pain, since Student’s behavior escalated dangerously when he was feeling ill, and following the instructions of Student’s psychiatrist with respect to prescribed medications. (P-2)
33. As stated above, after the HMEA evaluation was issued and before the first full day of hearing in this matter, the parties agreed that the School would attempt to place Student in a day school program, either as a student or for evaluation purposes. The School sought the option of having Student evaluated in a residential program in the event that no day placement was available, and Parents rejected this option.
34. Pursuant to further stipulations at hearing, on the TEAM convened on June 24, 2008 and issued an IEP calling for “a private day school or interim private day school placement. If [Student] is not accepted into either…the District is proposing an interim residential evaluation.” Under the IEP section entitled “Additional Information,” the IEP states that “upon admittance into a placement, the District will be proposing an evaluation in the areas of Cognitive, Behavioral, Social/Emotional, Psychological, Occupational Therapy, Physical Therapy, Speech/Language, and Adaptive Physical Education.” (S-59)
35. Parents partially rejected this IEP on June 30, 2008.
FINDINGS AND CONCLUSIONS
At this time, the primary issue is whether the School has carried its burden of proving that an evaluation of Student in a residential setting is necessary to provide Student with a FAPE in the event that no day school placement or interim placement is available. Put another way, the issue is whether the School may refer Student for such placement without going through the TEAM process.
Based on a careful review of the evidence on the record, I find that the School has not met its burden of persuasion this issue as required by Schaffer v. Weast , 546 U.S. 49 , 62 (2005).
In the instant case, the record does not support the conclusion that the School is unable to evaluate Student outside of a residential setting, even if Student is not accepted by a day program that can conduct such evaluation. In its most recent IEP, the School indicated that it sought to evaluate Student “in the areas of Cognitive, Behavioral, Social/Emotional, Psychological, Occupational Therapy, Physical Therapy, Speech/Language, and Adaptive Physical Education.” (S-59) The School simply has not demonstrated that it could not conduct such evaluations with its own or contracted personnel (in the Student’s home, within a school building, or other community setting), consult directly with professionals who already have substantial knowledge of Student (including his treating physicians) and by so doing generate enough information to draft updated goals and objectives and propose services (possibly including a comprehensive behavior plan). Indeed, the School has not attempted to conduct its own evaluation of Student during the period at issue (including the three-year evaluation that was due in December 2007), but, understandably, has focused on obtaining a new, stable placement that could do so.
I find that the School, therefore, (in addition to seeking out the agreed-upon day school setting) must conduct the three-year evaluation that was due in December 2007. If the School is unable conduct this evaluation, through its own or contracted resources, or obtain an evaluation from a day school setting as agreed by the parties, or if the results of such evaluation are incomplete or inconclusive, then the appropriate step is to re-convene the TEAM, and propose alternatives based on the results of the previous evaluation attempts. At that time, such alternatives may include an extended evaluation as described in 603 CMR 28.05(b), either in the community or residential facility.8 At this juncture, however, the School has not provided sufficient evidence to justify bypassing the TEAM process.
Notwithstanding the above, it is important to note that the School has been making admirable efforts, under difficult circumstances, to ensure Student’s safety and implement his educational rights. The Parents—who clearly are devoted to their son’s welfare– are strongly advised to cooperate fully and promptly with the evaluation process. For example, Parents should sign releases and consent forms in a timely manner, and make Student available for evaluations. If the Parents do not do so, and the evaluation process is impeded as a result, they will set the stage for a future order for a residential placement.
Parents are also urged to reconsider their position on an interim residential placement if, despite their and the School’s best efforts, an adequate evaluation and/or day placement cannot be implemented promptly. In such a case, Parents are reminded that if a short-term placement in a residential setting allows development of appropriate services for Student, such placement may reduce the risk that Student will need a long-term residential placement in the future, and increase his level of independence. These long-term considerations are especially important as Student approaches adulthood.
ORDER
Based on the foregoing, the parties are ordered to do the following:
1. The School shall immediately seek consent for, and conduct, a re-evaluation of Student. Such re-evaluation shall include all of the assessments listed in the proposed IEP of June 2008, as well as consultation with Student’s treating physicians regarding medication and any other health issues that may be relevant to Student’s educational needs. If placement in an agreed-upon day setting is imminent, then such evaluation may be deferred until Student is actually placed and an evaluation process is established.
2. Upon completion of the re-evaluation, the TEAM shall meet and develop an IEP or amendment as set forth in the pertinent regulations.
3. The School shall immediately draft an IEP amendment proposing interim home- or school-based educational services, and shall provide such services immediately after parental acceptance of the amendment, until Student is placed in a school setting. The School is urged to use the services of an appropriately credentialed behavioral expert to assist with designing and delivering these services.
4. If the School is unable to complete the forgoing tasks in a timely manner, and placement in an agreed-upon day placement is not imminent, the TEAM shall reconvene to consider alternatives, including but not limited to an extended evaluation and interim residential placement.
5. In any event, if Student has not been placed in an educational program within 45 (forty-five) calendar days from the date of this decision, the TEAM shall reconvene as stated in Paragraph 4, above.
6. The Parents shall cooperate completely and promptly with the process outlined above. Such cooperation shall include, but not be limited to, signing consent forms and releases upon request, and making Student available for evaluations and services. If the Parents have any difficulty performing their responsibilities under this Order, they shall promptly request assistance so as to avoid any delays in obtaining evaluations and services.
By the Hearing Officer,
__________________________ ________________________
Sara Berman
Dated: August 29, 2008
1
On January 29, 2008, the School filed a Motion to Join the Department of Social Services (now the Department of Children and Families). Hearing Officer Raymond Oliver issued a ruling denying that Motion on February 21, 2008.
2
Parent stated that he had been too ill to assemble documents for exhibits or to create a list of witnesses.
3
Ms. Boyle, Mr. Rasher, Ms. Dunne, and Mr. Shepherd all testified by speaker phone. Attorney Tate represented the School up to and including the first day of hearing in February 2008. Attorney Yaeger represented the School thereafter. Attorney Berman attended the first day of hearing on behalf of DMR; however, DMR was and is not a party.
4
Cardinal Cushing is a Chapter 766-approved private day and residential school providing educational and vocational services to students with developmental disabilities.
5
The record does not indicate exactly when Student began receiving medications to treat his behavioral symptoms.
6
The record does not indicate what “HSS” stands for.
7
Since approximately 2006, Student has taken psychiatric medications. During October and November of 2007, Parents stated that he had discontinued one of the medications without medical supervision, because of concern about possible side effects. Student’s behavior subsequently worsened. Parents resumed giving Student the medication in January 2008. (P-2) Neither party presented testimony or the report of Student’s treating physician regarding Student’s medication, its effects on Student, and the potential or actual effect on Student’s behavior of the medication’s being discontinued.
8
Of course, the parties could agree to have an extended evaluation in the first instance.