Brockton Public Schools v. Arthur – BSEA #04-3057



<br /> Brockton Public Schools v. Arthur – BSEA #04-3057<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Brockton Public Schools v. Arthur1 BSEA #04-3057

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 regulations promulgated under said statutes.

A hearing was held on March 30, 31, April 2, and April 13, 2004 at the Bureau of Special Education Appeals, 350 Main Street, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Brockton Public Schools (hereinafter, “Brockton”) requested a Hearing on January 27, 2004 and a Hearing was scheduled for February 18, 2004. Brockton requested a postponement of the Hearing which was granted and a Pre-Hearing Conference was scheduled for March 1, 2004, the first date upon which both parties were available. During the March 1, 2004 Pre-Hearing Conference, the Hearing was scheduled for March 30, 31, and April 2, 2004. On March 23, 2004, Parents sent the Hearing Officer a letter requesting that the matter be dismissed or postponed because the Parents had placed Student unilaterally. Brockton objected to Parents’ request and the Hearing Officer denied the request on March 24, 2004. The Hearing proceeded on March 30, 31, and April 2, and was completed on April 13, 2004. The Parties requested that the deadline for submitting closing briefs be May 4, 2004 and the Hearing Officer assented. On May 3, 2004, Parent’s attorney requested a postponement of the May 4, 2004 deadline and the Hearing Officer granted the postponement and ordered that closing arguments be submitted by May 10, 2004. Brockton submitted its closing brief on May 10, 2004. Parents submitted theirs on May 11, 2004. There was no objection to the late submission of Parents’ closing brief and the record closed on May 11, 2004.

Those present for all or part of the Hearing were:

Student’s Mother

Joel Ristuccia Parents’ psychologist

Ray Wallace Attorney for Parents

Joanne Malonson Director of Special Education, Brockton Public Schools

Robert F. Putnam Behavioral Psychologist, R.F. Putnam and Associates

Patrick W. Hart Principal, Downey School, Brockton Public Schools

Debra A. Dunn Behavioral Consultant, R.F. Putnam and Associates

Janis L. Bisio Behavior Specialist, R.F. Putnam and Associates

Frances X. Gallagher Occupational therapist, Brockton Public Schools

Kathleen Thissel McCorrison Special education teacher, Brockton Public Schools

Leah O’Reilly Inclusion teacher, Brockton Public Schools

Maurine Levine Speech Language Therapist, Brockton Public Schools

Agnes Peckham Special Education Department Head, Brockton Public Schools

Michael C. Donahue Attorney for Leah O’Reilly

Mary Joann Reedy Attorney for Brockton Public Schools

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of marked P-1 through P-34 and S-1 through S-52 and approximately 21 hours of recorded oral testimony.

ISSUES2

1. Whether the IEP proposed by Brockton Public Schools for the 2003-2004 school year is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. Whether Student is entitled to compensatory services.

SUMMARY OF THE EVIDENCE

1. The student (hereafter, “Student”) is an eight-year-old first grade3 student residing in Brockton, Massachusetts, within the Brockton Public School District (hereafter, Brockton). Student has been diagnosed with Pervasive Developmental Delay and multiple developmental delays. His medications include Risperdal and Clonidine to address anxiety, aggressive behaviors and sleep difficulties. (S-14, P-24, P-25) His intellectual functioning was found to be in the moderately retarded range. (S-8, P-4) Recent neuropsychological testing indicated Student’s abilities are in the moderately limited range. (S-14, P-24, P-24) Student was found to demonstrate emerging reading and writing readiness in a number of areas. (S-8, P-4) Student was noted to be distractible throughout the testing as well as echolalic. His eye contact was noted to be poor. His scores on the Vineland Adaptive Behavior Scales were very significantly delayed. His motor skills were a relative strength, but were significantly below age level. The Rosetti was used to informally assess Student’s receptive and expressive language skills. Results indicated solid skills at the 24-27 month level receptively and expressively, his skills were solid at the 18-21 month level. There were scattered skills at the 27-30 month level receptively.

2. On October 14, 2003, Charles E. Gunnoe, Ed.D., of Franciscan Children’s Hospital, completed a neuropsychological evaluation of Student. Student was 7.8 years old. Dr. Gunnoe utilized the Stanford-Binet Intelligence Scale- 4 th Edition (SB-4 th ); Copying Test from the NEPSY, Vineland Adaptive Behavior Scales and interview with patient. He reported Student was “quite distractible, and talked to himself throughout the entire testing session.” Student was often echolalic and had poor eye contact. On the SB-4th, Student achieved a Composite IQ score of 52, in the moderate range of mental retardation. On the Vineland Adaptive Behavior Scales, his Adaptive Behavior Composite was 46. His score in the communication domain was 45, his daily living skills score was 46, his socialization domain score was 57 and the motor skills domain was 61. Student produced two letters as a writing sample. Dr. Gunnoe concluded that Student manifests symptoms consistent with a diagnosis of Autistic Disorder and his intellectual functioning is in the moderately retarded range. (S-10, P-5)

3. Educational Specialist, Pat Donovan, of Franciscan Children’s Hospital, conducted an educational evaluation of Student on October 14, 2003. She administered the “ Concepts about Print Test ” (selected items); Dolch Basic Sight Vocabulary Words, and FCH Emergent Literacy Evaluation. Student was able to sit for up to ten minutes when engaged in a preferred activity, but had difficulty remaining in his seat when the task was more difficult. Student’s response to directions and requests ranged from immediate compliance to refusal (turning his head away and ignoring the examiner.) Student was able to count to ten, identify all numerals from 0 through 10, and wrote 7 of 10 numerals. He would begin to count items but could not maintain one to one correspondence after the first one or two items. Ms. Donovan summarized that Student demonstrated emerging reading and writing readiness in a number of areas. She noted that Student’s interfering behaviors made testing difficult and that he performed best when he could choose a preferred activity. She reported Student’s cognitive skills were in the deficient range. (S-11, P-2)

4. Ms. Donovan recommended that Student receive all academic instruction in a “small, specialized self-contained class for students having similar cognitive skills and language and learning needs.” She stated the teacher needed to be experienced in teaching children with autism and recommended a teacher to student ratio of no more than 1:2 to provide maximum individualized and small group instruction. She recommended that the program use an interdisciplinary team approach based upon the principals of applied behavior analysis and positive behavioral supports with a great deal of communication between home and school. She recommended the support of an Autism/PDD specialist. She recommended that Student be taught in a “safe, motivating, challenging and nurturing environment that is clinically proficient.” She recommended that Student receive an extended year program to maintain skills and prevent regression. In the area of reading/language arts she recommended the use of a multi-sensory, systematic language approach with 1:1 or small group instruction. She recommended that Student be taught beginning phonological awareness skills, letter formation, decoding and encoding skills, sight vocabulary, reading for fluency and accuracy, comprehension, written expression, and mathematics. She recommended a number of strategies and accommodations to be used in the classroom. (S-11, P-2)

5. Kimberly Haley conducted a speech and language evaluation on October 14, 2003 using the Preschool Language Scale-4 (PLS-4) and Rosetti Infant-Toddler Scale. She noted Student’s normal hearing acuity and middle ear function as assessed by an audiological evaluation on October 14, 2003. She noted Student was active and resistant to participating in formal testing. She observed Student’s inconsistent attention to tasks and inconsistent eye contact. Student used a lot of jargoning with intonation and echolalic responses during the evaluation. She noted Student responded well to increased affect, repetition of verbal directions, combining signs and words, and a firm voice when setting limits. Both clinician observation and parent report were used to assess language comprehension and expressive language skills. Student responded appropriately to one step, contextual directions and was noted to benefit from combining simple signs with verbal directions to aid comprehension. Student showed solid expressive language skills at the 18-21 month level with scattered skills at the 27-30 month level. He was observed to use single words frequently, “use sentence-like intonation patterns, imitate two and three word phrases, and spontaneously used two-word phrases.” During play, Student was noted to be very verbal, combining words, word approximations, jargoning and echolalic speech. He primarily used intelligible single words or two word phrases but was noted to occasionally use longer, rote phrases such as “help me open.” (S-9, P-6)

6. Ms. Haley summarized that Student is active and has significantly delayed receptive and expressive language skills. She noted his speech production skills were functional at the one word level. She recommended the continuation of school-based speech and language services three times per week for thirty minutes and regular consultation between the teacher and therapist. She recommended home-school communication including sending home any pictures/symbols Student uses at school. She recommended his goals continue to focus on increasing his receptive, expressive and pragmatic language skills. (S-9, P-6)

7. Jennifer Porfilio, MS, OTR/L administered an occupational therapy evaluation on October 14, 2003. She noted Student had difficulty sitting at the table and had an extremely difficult time attending to verbal and visual instructions. He did make any eye contact with the evaluator. He spoke in jargon words and verbally perseverated on words during the last half of the evaluation. Student was unable to follow directions for standardized assessments. She opined that Student is unable to make social connections with people in his environment due to avoidance of eye contact and inability to attend for long periods of time. Student’s fine motor skills were found to be within functional limits. He demonstrated an immature pencil grasp, although he used it functionally to write letters and draw basic shapes. The immature grasp impacts his ability to manipulate and control the writing utensil for precise movements. Ms. Porfilio reported that Student is able to write uppercase letters and numbers with proper formation and legibility. She noted that the size of letters and numbers is inconsistent due to fleeting vision attention and immature pencil grasp. He is able to imitate and copy basic shapes and was unable to copy complex intersecting shapes. (S-13, P-3)

8. Ms. Porfilio summarized that Student’s sensorimotor skills are within functional limits. He shows over-responsiveness to sensory stimuli in his environment. His fine motor skills are within functional limits, except for his immature pencil grasp. His poor visual attention impacts his ability to write or draw shapes and letters precisely. She recommended that Student continue to receive occupational therapy at school three times per week for 45 minutes with a focus on sensory processing and vision motor skills. She also recommended 51 accommodations. (S-13, P-3)

9. Vincent Cerce, M.Ed/C.A.G.S., Brockton’s Autism Specialist, conducted a functional behavior assessment of Student and wrote a report of his findings dated January 10, 2003. (P-16) Mother had requested the assessment due to her concerns regarding Student’s behavior at home and his school behavior support plan. The purpose of the assessment was to review Student’s behavioral status at home and school and identify his primary areas of need and recommend interventions. Mr. Cerce interviewed Mother, Student’s teacher, and Student’s private therapist. He collected data from the classroom and observed Student at home and school and reviewed records. (p-16)

10. Mr. Cerce noted that the degree and level of the target behaviors at home and school were very different. Mother reported that the behaviors occurred multiple times a day and that some outbursts could last for periods up to an hour. School reported far fewer individual behaviors and when they occurred their duration was only a few minutes. Self-stimulation was found to be high at both home and school. Mr. Cerce recommended that Student continue to participate in a school program that offers a highly structured classroom setting with visual cues and where methods of Applied Behavior Analysis are used. He noted the need to reduce the amount of self-stimulation that occurs during the day. He stated that the rest of Student’s behavior support plan should be used to maintain his gains in reducing aggression and self-injurious behavior and increasing on-task behavior. He recommended a visual communication system to help Student communicate his needs and to assist with transitions and routine changes. He recommended Student continue to be exposed to same age typically developing peers for social and behavioral modeling. Finally, he recommended that Parents work with school staff in the home to increase structure and develop reinforcement strategies that are practical for the home setting. He stated that Student’s aggression toward his mother and grandmother were of particular concern. (S-15, P-16)

11. The IEP for the period from March 5, 2003 to March 5, 2004 was rejected by Parent on March 26, 2003, but amended by a mediation agreement and accepted by Parent on May 30, 2003. The Service Delivery grid outlined direct service in the general education classroom in the area of “Comm/Soc/Cog/Mo” with “SPED/Reg Ed St” 5 x 3.5 hours per week from March 5, 2003 until June 30, 2003. The IEP provided for the following direct services in other settings: “Cog/Comm/Soc/Mo” with “EC Sp Nds Teach” 5 x 1.5 hours per week from 3/5/03 – 6/30/03; “Acad/Comm/Social” with sped staff 5 x 5 hours per week from 9/02/03-3/5/04; Communication with the speech pathologist 3 x .5 hours per week; fine motor/sens with the OT staff 3 x .5 hours per week and gross motor with the APE teacher 1 x .5 hour per week. The IEP indicated that Student would participate in a six-week summer program where goals and objectives on his IEP would be addressed. (S-14)

12. The mediation agreement modified the IEP in the following ways. A communication book would be implemented. The OT and speech sessions would be delivered 2 x 30 minutes per week as co-taught sessions with the speech language pathologist, 1 x 30 minutes as occupational therapy and 1 x 30 minutes as SI therapy. A behavioral specialist would consult with the classroom teacher regarding Student’s program once per month and with the summer program staff weekly. The behavioral specialist would consult at home with Parent for one hour per month and classroom and home consultants would confer with one another regarding Student’s program. Student was to spend one hour per day with the inclusion class accompanied by an aide and would continue to be included for art, p.e., lunch, etc. (S-14)

13. The Team convened on January 15, 2004 to review independent evaluations, review progress and discuss placement. (S-3) The IEP describes Student as having a diagnosis of Autism with intellectual functioning in the moderately limited range. It describes Student’s communication skills as being able to use one word to “get what he wants if within his vision” or using picture symbols to communicate his wants and needs. It states that he demonstrates echolalic speech and is able to follow a picture schedule board. It states that he can expand requests to three words with verbal and picture supports. It states that he generally follows one step directions with verbal and visual cues. Student can choose an activity when given two choices and will say no if he does not want a choice that is presented. It states that he can identify basic action pictures in picture stories with language modeling and he is responsive with a verbal greeting (“hi”) 50% of the time. In the readiness area, Student counts and identifies numerals in sequence and in random area. He has demonstrated 1:1 correspondence and continues to work on consistency. He prints his first and last name and inconsistently names 15 letters. Student recites the alphabet, prints 14/26 upper case and 8/26 lowercase letters. Student is able to remain with his APE class for ten to fifteen minutes. When included in the general education program accompanied by support staff, Student is observed to be compliant and comfortable and appears to attend to activities. He does not spontaneously interact with peers. (S-3)

14. The IEP lists a number of accommodations. It states that Student requires a highly structured predictable routine and the maintenance of eye contact during verbal instruction. It states that Student requires the use of consistent language, repetition of short simple directions with visual cues and a non-distracting environment. He requires short activities with frequent breaks and frequent progress monitoring in addition to frequent breaks and delayed response time. Student requires weekly data collection on academics and a behavior support plan with daily data collection. He requires books on tape, a cueing system to help him follow instructions and motor breaks. He requires opportunities for vertical and slant writing surfaces and for body repositioning and boundaries. He requires a variety of pencil diameters and boundary identifiers for worksheets. His workspace must be altered according to his ability to tolerate movement and contact with people and objects. (S-3)

15. The IEP indicates Student’s instruction is provided at his developmental level and he is working on access and readiness level skills. It states Student requires a highly structured multi-sensory approach using augmentative communication when needed, a visual schedule, task analysis and discrete trial training. He requires hand over hand instruction and total communication. He requires repetition and “over learning” of concepts. He requires adult modeling of social schemes and language scripts to expand utterances. He requires a Behavior Support plan. Student requires therapeutic sensory-based activities. He requires therapeutic fine motor constructional tasks. (S-3)

16. Student’s proposed service delivery grid contains a behavior consultation with the behavior specialist for one hour per month. The IEP proposes direct services in the general education classroom in the area of behavior/communication/academics with the special education and regular education staff five times per week for one hour. It proposes speech/OT co-treat 2x .5 per week (individually). It proposes services in the area of academics/communication/social with the special education staff 5 x 3.5 per week in a substantially separate environment. It proposes communication services with the speech pathologist 2 x .5 individual and 1 x in a small group. It proposes fine motor/sensory services with the OT staff 1 x .5 per week and gross motor services with the APE teacher 1 x .5 per week. The IEP indicates that Student participates in a 6-week summer program in which the goals and objectives in his IEP are addressed. The IEP states that the behavior specialist will consult with the parent during the summer program. (S-3)

17. The “Additional Information” section of the IEP described the range of placement options for Student that the Team discussed. It indicates that Student would be included in a first grade class for one hour per day and would participate in a regular education class for non-academics. It states that student would be accompanied by a special education support staff person for all inclusion activities. The Team recommended that the Behavior/Autism Specialists continue to consult with the school staff and the parents. It states that monthly meetings with the parent and service providers would continue and the special education teacher and regular education teacher would consult regularly. Data collection for behavior in the general education program would be initiated. It states that an after school program (Math Games) once per week accompanied by support staff is available to Student. The Team recommended a substantially separate classroom for Student. (S-4)

18. Mother presented a letter dated January 15, 2004 to the Team that states, “I am requesting that [Student] be referred out of district. This will give me an opportunity to observe other programs that meet his needs.4 ” Parent rejected the IEP. (S-3)

19. Student stopped attending the Brockton Public Schools on January 5, 20045 . (S-2) Brockton filed its request for a hearing on January 27, 2004 alleging that Student was being denied FAPE as he had not been attending school since January 6, 2004. (See School’s request for hearing.)

20. Kathleen Thissel McCorrison testified that she was Student’s classroom teacher at the Downey School during the current school year. She is a certified in special needs N-9 and elementary education 1-6. She has been a special education teacher and has taught in the Brockton Public Schools for 17 years and has been working with children on the autism spectrum for 13 years. She has taken additional courses in augmentative communication, assistive technology, the use of “Boardmaker”, modifying curriculum and has learned the “PECs” system. Dr. Putnam has set up many training sessions for her and her staff and has brought people from the May Center to do in-service training. (McCorrison)

21. Ms. McCorrison testified that there are nine students in her class this year. Some students are working at grade level academically and some working significantly below grade level. The students have varying language skill levels. Some students can carry on a conversation and some are dependent on their augmentative communication and picture symbols to communicate their wants and needs. All of her students require instruction regarding social skills. Academically and language-wise, Student is the lowest functioning student in her class. She has first through third graders in the class and some third graders are not much higher than Student academically. There are three paraprofessionals in the class and one teaching assistant. (McCorrison)

22. Ms. McCorrison prepared Student’s daily classroom schedule. (See S-32) The school day begins every day at 8:25 a.m. and there is a “pre-school period” during which students arrive and work on morning work and wait until it is time to go to their inclusion class taught by Leah O’Reilly. Students who arrive after 8:35 are marked tardy. Student generally arrived at school between 8:40 and 8:45. When he arrived it was time for him to go to inclusion. At the beginning of the year when he arrived he would do a great deal of flopping. He did not want to go and did not want to carry his communication book. He required many prompts to get there and he walked slowly and behind the other students and dropped his board often. Three other students and two staff members from Ms. McCorrison’s class went to Ms. O’Reily’s class with Student. Ms. McCorrison was usually one of the staff who went with Student. While the students were in Ms. O’Reily’s class, Ms. McCorrison and the other staff members took data or facilitated interactions between Ms. McCorrison’s students and the inclusion students and prompted the students to use their communication boards. The students would all say hello to one another and he did not want to have contact with the other students. Initially, Student resisted sitting down with the other students and preferred to lean on the student next to him or lie down. (McCorrison)

23. The students then returned to Ms. McCorrison’s class for circle time. Students reviewed the days of the week and the weather and there are a number of social activities where students use their communication boards to communicate with one another. They would ask questions to one another with the board and answer the questions with the board. One staff member would direct the circle time and other staff members took data and prompted the students. Ms. McCorrison testified that she draws from a social skills curriculum in her classroom. She testified that she writes social stories to help students understand their environment and new experiences such as going to the dentist. She offered to write one for Student when he was going to a doctor’s appointment, but Mother thought he would do fine without one6 .

24. Ms. McCorrison testified that she teaches Student math in a small group with one other Student and works on one to one correspondence and counting. She uses books with velcro and various manipulatives. Student works in a math workbook as well. He knows the numbers 1-10 and they just started working on adding. (McCorrison)

25. Ms. McCorrison testified that Student was working at the Kindergarten level in Reading. She would review stories with him by first reviewing vocabulary. Student was not required to read words, but to understand the vocabulary words. She explained that she uses flashcards with Mayer-Johnson symbols to show the meaning of the words in the book. She hangs the flashcards up on the board and continuously refers back to them. She testified that Student requires a great deal of prompting. She would ask Student questions about the book and require Student to pick out the card that corresponds to the answer. She testified that Student knew a lot of the alphabet when he came in to her class and he liked books. (McCorrison)

26. Ms. McCorrison testified that 11:00 a.m. was initially a difficult time for Student because the second and third graders went to lunch and he received math instruction. (McCorrison) Dr. Putnam testified that this time was difficult for Student because he wanted to go to lunch instead of having math instruction. He testified that they modified his activities at that time to make it more enjoyable for him. He explained that they could have sent him to have lunch earlier, but they wanted him to attend lunch with his inclusion class peers and they also wanted to teach him a way to handle that difficult time. (Putnam) He would do a great deal of flopping and wandering from the work area at that time. To reduce the flopping and wandering behavior Ms. McCorrison made that time period more of “choice time” for him. She testified that Student did much better during that time, but still liked to wander around and use different items in the classroom. (McCorrison, Putnam)

27. Ms. McCorrison testified that Student went to the cafeteria with the other students for lunch. He would carry his tray and pay for his lunch with prompts. He would not talk to the other students except for when he was prompted with his communication board. He went to recess with the other first graders and he liked to follow behind the other students. Other students were prompted to ask him if he wanted to play and he would for a short time. (McCorrison, O’Reilly)

28. Ms. McCorrison testified that Student received an individual math lesson in the afternoon and a language lesson using books which she called autism stories with picture cards. She explained that sometimes they would use the Peabody language program. She testified that she uses a modified Orton-Gillingham program to practice letters, letter sounds and comprehension. She has been trained in the program and has the book and cards. She stated that the staff was often keeping data and someone was always prompting the students and trying to encourage social interactions. The staff tried to encourage the use of language all day long. (McCorrison)

29. Ms. McCorrison explained that Student’s communication book contained several different topic boards. One board contained a visual schedule she used to prompt Student as to where he was going. (See S-4) There was one that he used in inclusion that contained greetings and words associated with the calendar work they did in class. There was a topic board about colors they would use if they were using crayons. There were words associated with money and shapes in the book. She described one of the boards as a beginner communication board for students with difficulty expressing what they want. She explained that they can add words to the board. One of the boards contains the major rules in the classroom which include, “quiet”, “sit nicely” and “have good hands.” She explained that the staff always point to the pictures and verbalize at the same time. The book also contained a visual schedule to assist Student with transitions. (S-4)

30. Ms. McCorrison testified regarding what methods she uses to reinforce good behavior in her class. She uses edibles with most of her students and has found them to very useful. Mother requested that they not be used with Student in September. (McCorrison, Putnam) The staff complied with Mother’s request and it is noted in Student’s September Behavior Support plan. (Putnam) The school staff sought to find something to use with Student in lieu of edibles to reward good behavior. Ms. McCorrison testified that she remembers filling out a preference survey and remembers that Mother was asked what Student likes. She testified that she also uses a token economy in her class. Students earned poker chips for positive behavior and good performance. At the end of the day they could buy toys from a cart with their chips. Student was able to use his chips to buy things by the end of his time in school. (McCorrison) Student also could earn a puzzle piece that would enable him to partake in preferred activities. Dr. Putnam testified that he feels Student would have been able to make more progress if the staff was able to continue using edibles as a reinforcement mechanism for Student. (Putnam)

31. Ms. McCorrison testified that she does not have much academic data regarding Student. He is difficult to assess in the area of reading although she has tried to take data. She testified that during the January Team they discussed doing additional tracking of academic data. Janis Bisio, the classroom behavior consultant, discussed wanting to take more academic data in her room and in the inclusion setting. (McCorrison)

32. Ms. McCorrison testified that Student was her only student with a detailed written behavior plan. She found that the plan was important for him because he could attend to his academics more when his behavior was better. (McCorrison)

33. Ms. McCorrison testified that she noticed Student making progress between September and December. Where he initially had difficulty getting to Ms. O’Reilly’s classroom he was getting there more easily. By December, he would enter the classroom and sit down at a place he preferred and open up his communication book to the calendar page. When other students put their hands out to him to shake he would shake hands and with prompting he would use his board to say “Good morning” and “How are you?” He would also use his communication book to greet his peers when prompted. He enjoyed going to the front of the room to participate in the calendar activities. He also showed improvement during circle time in Ms. McCorrison’s class. In September he did not readily join in the lessons, but flopped and left the area. By December he was listening to the stories during reading class and with prompts he could complete work relating to character and setting. In September he resisted lining up for lunch and carrying his communication board. By December he would carry his communication book with him and line up and go with the class. Ms. McCorrison testified that by December he was more compliant and was not testing her as much. He was sitting much better and attending more to lessons. He enjoyed going out of the classroom and brought his communication book with him. His behavior improved a great deal. She testified that if he was still attending school he would be working on letter sounds, comprehension of stories, and working toward sight vocabulary. In math he would be working on addition, telling time, and money recognition. (McCorrison)

34. Leah O’Reilly testified that she has been a first grade inclusion teacher for five years and Student was in her class this year. She testified that she attended the autism institute 3-day training in the summer of 2000 and has taken graduate classes pertaining to autism and PDD. Student came to her inclusion class for 2 hours each day. She testified that there are 6 typically developing students and 7 students on IEPs in her class. There is also a monitor teaching assistant7 and a paraprofessional in her class. When Student is in her class there are an additional two staff members and an additional four students. She testified that in September Student did not make eye contact and did not like to say hello to his peers. When he was prompted Student would say hello and use his communication book. She testified that students practice oral language and shaking hands and asking questions to one another during “morning message.” She stated that after Student had been in her class for a while he would raise his hand to participate and he would repeat the answer to her question when she prompted him to answer. She stated that she never saw any noncompliance from Student in her class and attributed that to the lesser academic demands that she placed upon him. She stated that Student required one to one assistance for art or writing activities. He was able to write his name and for other writing assignments he might receive dotted out letters to connect or receive hand over hand assistance. (O’Reilly) Ms. McCorrison believes that Student benefited socially from being in an inclusion program for part of his day. She stated that he probably was not picking up as much of the content as he did in his small group classes. (McCorrison)

35. Maurine Levine testified that she is a speech language pathologist and she specializes in oral language. She has a Master’s degree in speech language pathology and is Board certified by ASHA, registered in Massachusetts, and certified by the department of education. Under Student’s current IEP she provided direct services to Student four times per week. She testified that his IEP required her to provide services three times per week, but she actually saw him four times per week. Ms. Levine testified that she consults with Ms. McCorrison twice per week. She testified that Student has significant language needs. She described his speech as echolalic and said he uses a great deal of jargon. She explained that he has a limited fund of expressive vocabulary and it is at the one word level. She finds that the single words he uses are purposeful and one word he has used is “computer.” He can follow one and two step directions when given a context and with repetition. Her objective when working with Student was to address receptive and expressive language skills as well as attention. She testified that she used activities, visual supports, and pictorial representations when working with him. She produced Student’s communication board using Board Maker. She testified that Student knows some colors and some numbers and he likes books. (Levine)

36. Ms. Levine testified that in November she met with Mother and Ms. Bisio and discussed the importance of Student’s communication book to enhance his communication. He was using the communication book at home and the Brockton staff thought it would be helpful if he used the same symbols at home. Ms. Levine gave Mother a checklist of symbols that might be useful (S-5) and asked her to check off the items she thought would be helpful to Student and to return it to school. Ms. Levine explained that she could provide symbols that would communicate Student’s feelings, such as a picture of a child feeling ill that would enable Student to express that to his family. She could also use pictures of foods and activities that Student likes. She explained to Mother that she would create a communication book that could be used at home and school. Mother never returned the form to her. (Levine) Dr. Dunn testified that Ms. Levine spoke to Mother about creating the communication board during a September meeting and asked Mother to complete the paperwork with her. Mother stated she would complete it later. (Dunn) Mother testified that she did not complete the form and return it because she was expecting to have Easter Seals do an independent evaluation and thought the whole Team could look at their recommendations when they completed it. (Mother)

37. Ms. Levine testified that Student’s skills have improved since she has been working with him. His expressive communication has improved, although he does not communicate on demand. He is able to follow one and two step classroom directions with repetition and gestural support. Ms. Levine believes that his receptive language is at a higher level than his expressive language skills and she has been able to use visual supports with him with more consistency over time. She stated that consistency is an issue in working with Student because his attention is variable which impacts his demonstration of language skills. She stated that he repeats what she says and explained that is good progress because that is how students learn language. (Levine)

38. Ms. Levine testified that she finds verbal praise to be effective with Student except when he is inattentive. When he is inattentive she is able to refocus him by continuing with the activity and using gestures. She described Student as “primarily self-directed” and explained that he tends to do what he wants to do. She testified that he has made progress in behavior and is able to sit in a chair, has improved eye gaze and has become more attentive. She saw his ability to sit on his chair and refer to the activities and to engage in them. She saw him enjoying the activities they did. (Levine)

39. Robert F. Putnam, Ph.D., testified that he holds a Ph.D. in special education and Rehabilitation. He is a licensed psychologist and health care service provider and a board certified behavior analyst. He testified that he has spent the past thirty years working with students similar to Student. He is senior vice president of Consultation and Positive Schools at the May Institute and he oversees 25-30 consultants that provide consultation to public schools, private agencies and collaboratives. About 50% of the individuals they serve have PDD. He also has a private consulting business primarily with the Brockton Public Schools in which Dr. Dunn and Mrs. Bisio work with him in providing consultative services. He is currently on staff at the Harvard Medical School and at Northeastern University. He is the principal investigator of a federal grant funded by the federal department of education. The grant focuses on the training and dissemination of positive behavior support practices. The sole purpose of the grant is to effectively disseminate and provide technical assistance to states regarding the development of positive behavior support practices. He publishes research in this area regularly. He is a consulting editor for the Journal of Positive Behavior Supports and Interventions which he described as the foremost journal in the area of positive behavior supports in the world. He has provided over 100 different trainings in the areas of PDD, challenging behaviors, positive behavior supports to school systems, to autism support centers, at regional, local and national conferences. He does a lot of training with parents regarding effective practices with students with PDD. (Putnam)

40. Dr. Putnam testified that he has been consulting with the Brockton Public Schools for about fifteen years. About twelve years ago he was asked to help Brockton to develop an elementary PDD program. The focus of the program has always been to develop and provide evidence-based services for students with PDD with a focus on developing social skills that would allow students to be included. He did a lot of training and consultation at that time. Mrs. Bisio joined his practice about eight years ago as a behavior consultant to the classroom. Dr. Putman testified that he is in the classroom about once per month, but provides consultation to Mrs. Bisio two or three times per week. He reviews the data and behavior support plans from the students in the class and reviews the outcomes in terms of academics and ADLs. He makes suggestions regarding curriculum, behavior interventions and functional and social skills. (Putnam, S-1)

41. Dr. Putnam testified that he and his consultants became involved in Student’s program last summer pursuant to the terms of a mediated agreement. They began providing consultation on a weekly basis to the summer program and on a monthly basis to Mother. They began to develop services for Student at that time. Given Mother’s concerns regarding Student’s behavior plan, Dr. Putnam was reviewing the plan on a weekly basis at that time. Mother had concerns about the behavior support plan and the effectiveness of the program, so they were spending significantly more time consulting than the hour listed on Student’s IEP. When school started they had monthly meetings where they reviewed data gathered relating to his behavior support plan and IEP. They reviewed the behavior support plan itself with Mother to keep her apprised as to what was being done with Student. He testified that they collected data regarding Student’s challenging behaviors and were beginning to collect data regarding his academics and they planned to do data based assessments and progress monitoring on his other IEP objectives. Student was administered a LAP-D8 every year until last year. (Putnam)

42. Dr. Putnam reviewed the Franciscan Children’s Hospital neuropsychological evaluation. (S-10) He tried to determine what the age equivalents would be relative to Student’s cognitive levels obtained by the evaluator. The vocabulary score of 30 translates to an age-equivalent of 3.1 years. His comprehension was at the 2.6 year level. In verbal reasoning, his age equivalent was 2.10 years. His pattern analysis was at a 3.8 year level. The copying sub-test was at the 4.6 year level. The quantitative area (matching dominoes) was at the 5.3 level and memory (involving bead patterns) was at the 5.11 year level. Memory for sentences was at the 2.4 year level. Looking at the language areas, Student scored low. The functional skills were around the two year level. In the intelligence tests he was at the approximately four year level with a great deal of scatter. His adaptive behavior score on the Vineland was around the four year level. The Vineland is an adaptive behavior scale that looks at daily living skills, socialization and motor skills, functional skills from a real world perspective. (Putnam).

43. Dr. Putnam testified that he reviewed the protocols of the LAP-D assessment that was given to Student each year between March 1999 and January 2003. He and Dr. Dunn reviewed Student’s first test results in March 1999 when Student first entered the Brockton Public Schools and compared it to the January 2003 results. Student showed progress in all areas. In several areas where there had previously been no basal, Student showed progress, in that he was able to attain a score. In order to ensure that the most recent test results were accurate, he asked Ms. McCorrison if Student could actually do the tasks that the assessment showed he could and she confirmed it. He testified that the LAP-D scores do not show whether Student made progress from September to December 2003. (Putnam)

44. Dr. Putnam testified that he was familiar with the behavior support plans and behavior management plans that he and his staff developed for Student since September 2003. He is familiar with the changes that transpired in the plans and that are reflected in P-18 through P-209 . The staff in consultation with Mother first determined what behaviors they thought should be increased given Student’s skill deficits in pro-social skills and behavior. He reviewed the “Behaviors to Increase” listed in the plan and explained the reasons for including each in the plan. Student had difficulty staying at the table and working. They wanted to teach him to remain in the appropriate area. They also wanted to teach him not to self-stimulate because it would take away from his ability to attend to academics. He had issues around appropriate personal space and they wanted to help him to define that. Much of his behavior was escape motivated, so they wanted to teach him an appropriate way to indicate that he needed to take a break. Mr. Cerce’s prior functional behavior assessment shows that a lot of Student’s behavior was escape motivated. Student had difficulty transitioning from one place to another and they wanted to address that. They wanted to show him a better way of requesting attention and most significantly, on task behavior. Compliance was a big issue in terms of getting Student to follow directions. The behaviors they targeted to increase were taken from the IEP and also were behaviors that were observed by his staff during the beginning of the year. Dr. Putnam also explained the “Behaviors to Decrease” listed on the plan as follows: “flopping” to the floor, hand self-stimulation, self-injury, aggression, throwing or clearing objects, out of his seat/area, and behavioral outbursts. He explained that the goal of positive behavior supports is to look at prevention strategies to prevent behaviors from occurring. He explained the reasoning behind each prevention strategy to be used with Student. (Putnam)

45. Dr. Putnam testified that he was involved in determining what behaviors would be targeted. He stated that best practice would be to look at the most socially valid targets and to talk to the Team and Student’s parents about what behaviors they would like to target. He explained that they would want to address behaviors that would make the biggest difference in Student’s life, in his parents’ lives and in his functioning in school. He explained that changes were made to Student’s behavior support plans during the months that Student attended the Brockton Public Schools to address concerns raised by Mother. He stated that Mother was concerned that the use of visuals would impede the development of oral language. He testified that the research indicates that the use of visual supports will accelerate the use of verbal language. Dr. Putnam testified that they changed the language of the behavior plan to ensure everybody knew that verbalizations were to be used in conjunction with the visual supports. He wanted it to be clear to Mother that they were addressing the development of Student’s oral language and using whatever would be the most effective way for Student to communicate with staff and for staff to communicate with Student. (Putnam)

46. Dr. Putnam testified that his staff made graphs from data they collected regarding Student’s behaviors. He explained that the charts were taken in five-minute intervals showing the presence or absence of the behavior. He explained that the chart regarding Student’s flopping behavior (S-36) shows a nice decrease in the flopping behavior and the last five days that data was taken, there were no occurrences. There were no incidents of aggression and no behavior outbursts and self-injurious behavior was only seen on one occasion very early in the year. Student’s out of seat behavior occurred during almost 25% of the intervals initially and was down to around 4% of the intervals by the end of the data collection. Dr. Putnam considered this a nice gain. Student’s hand self-stimulation increased from about 17% to about 41%. The staff thought they needed to conduct a more refined data analysis of this behavior. Dr. Putnam testified that he and his staff were in the process of moving toward tracking his academics and if he were still in school they would be tracking all of his IEP objectives using the same methodology. He explained that hand stimming was not a major problem for Student in comparison to some of his other challenging behaviors. He concluded that the behavior support plan had been very successful in extinguishing all of the behaviors except for the hand stimming. He and his staff would want to do a more “fine grained” analysis of the behavior and what was precipitating it. (Putnam)

47. Dr. Putnam testified that at the beginning of the year Mother was concerned that Student’s behavior seemed to be more problematic than it had been in the past. He did not know Student previously and was not able to ascertain whether that was true. His staff wanted to document that either Student’s behavior was improving or it was not. They would then be able to make modifications to the behavior support plan based upon the data that they collected. (Putnam)

48. Dr. Putnam reviewed the recommendations of the Franciscan Children’s Hospital educational evaluation regarding Student’s educational placement. It recommended “a small, specialized, self-contained classroom for students having similar cognitive skills and language and learning needs. The teacher needs to be experienced in teaching children with autism.” (See S-11, P-2) Dr. Putnam testified that he agreed with the recommendation and that Student’s Downey School program is just what is recommended. He testified that Student is in the middle to bottom third as compared to the other students in his class. He testified that Ms. McCorrison is very experienced in teaching children with autism and there is a ratio of 9 children to 5 adults in the classroom. The program is based on the principles of applied behavior analysis and positive behavior supports. The staff has worked hard to have good communication with the parents and to share information with them. There is a communication notebook that goes home on a regular basis and Mother came in every day and spoke to Ms. McCorrison. There is more than one PDD/autism specialist on staff, Dr. Putnam, his staff, and Mr. Cerce. They have data showing that Student’s behavior in school and motivation to learn has improved. (Putnam)

49. Dr. Putnam testified that he is not familiar with Dr. Margolin and has never spoken to him about Student. He believes that he is Student’s outpatient therapist. He testified that he has seen Dr. Margolin’s letter dated May 28, 2003 that recommends that “an outside placement that serves children with autism is critical at this point in time for [Student] to succeed both cognitively and socially. I believe that [Student] will do best in a placement that uses multiple methods including the TEACCH approach rather than a pure ABA approach. The League School in Walpole, MA is one facility that would likely be very appropriate for [Student].” (S-40, P-28) Dr. Putnam testified that the report was written before Student attended his Downey School classroom and he does not believe Dr. Margolin was aware of the gains that Student has recently made since going in to Ms. McCorrison’s class. Dr. Putnam disagrees with above cited opinion and believes Student has done very well in his current placement. (Putnam)

50. Debra A. Dunn, Ph. D. testified that she holds a Ph.D. and M.A. in Child and Developmental Psychology. She testified that she has worked as the Director of Behavior Services at a residential school for students with challenging behaviors and developmental disabilities. She has also worked as program director at a psychiatric unit for people with developmental disabilities. She now works as a behavioral consultant for R.F. Putnam and Associates. She testified that she became involved in Student’s program during his summer program in 2003. She stated that she provided consultation in the classroom weekly and in the home monthly. She met with Mother in July and August. She stated that Mother raised concerns regarding Student’s behavior including aggression toward his siblings, flopping in public and hand flapping. Dr. Dunn testified that she drafted some behavior recommendations for Mother to use in the home. (S-44) She provided a detailed explanation of her methodology in drafting the plan and the reasons for drafting it as she did. She testified that she presented the plan to Mother during their monthly meetings. She stated that her monthly meetings with Mother continued even after Student stopped attending school in January. Dr. Dunn testified that she is not aware of whether Mother used the plan at home or not. She testified that Mother told her that Student’s behavior at home is controllable. Dr. Dunn believes the behavior support plan would have been helpful if it had been implemented. She testified that she often questioned why she was providing consultation in the home because she had been told that the family found Student’s behaviors very intrusive, yet the family told her that Student’s behaviors were “fine.” She testified that she asked Mother what she wanted to work on in the home. (Dunn)

51. Dr. Dunn testified that her consultation services are not listed on the grid of the January 15, 2004 IEP. She stated that was an error and there had not been any intention to discontinue her services. In fact, she continued meeting with Mother in the home. (Dunn, Malonson)

52. Dr. Dunn testified that she decided to conduct a preference survey to determine what activities would be reinforcing for Student. (S-7, P-15) She testified that she asked Mother for suggestions to include on the survey and Mother suggested bubbles, cartoons, and toy cars. Mother’s suggestions were included on the survey that was completed by school staff. (See S-7, P-15)

53. Dr. Dunn testified that She made suggestions to Mother earlier in the school year regarding Student’s flopping when it was time to go to school. She stated that she suggested that Student arrive at school earlier to allow him to have some time to participate in an enjoyable activity before going to inclusion. She hoped that would make the transition from home to school easier for Student. Dr. Dunn testified that she saw Student act aggressively toward his brother twice while she was at his home and Student was told to leave him alone. She testified that she has seen verbal reinforcement used at home and was not aware of any other positive reinforcement.

54. Janis Bisio has an M.A. in clinical psychology and a B.A. in psychology. She is a board certified behavior analyst awaiting receipt of her certificate. She has been employed by R.F. Putnam and Associates as a consultant behavior specialist since February 1995. She testified that she spends approximately 15-20 hours per week in the Brockton Public Schools. She stated that her role with respect to Student is to provide services to him for one hour per month. She testified that she observed Student in his classroom and the inclusion program on the first day of school and he engaged in a number of disruptive behaviors. She observed Student flopping on the floor, getting out of his seat and leaving the work area, removing his shoes, engaging in hand stimulation, and making jargonning verbalizations. She also stated that he had his arms around Ms. McCorrison’s neck in what started as affection, but could have been seen as aggression. She testified that she devised Student’s behavior support plan and data collection strategies. (See P-18 – P-20) She testified that the targeted behaviors were derived from many sources. One source was from her observations on the first day of school. Additionally, she consulted with Vincent Cerce to determine what behaviors had been present in the past. She learned that self-injurious behavior had been an issue in the past. She added “outbursts” after the first day. She stated that she wanted to take data on a number of items to ensure that they were the items that should be targeted. She testified that the data collection would be based upon whether the behavior occurred during five-minute intervals. She testified that data was not taken regarding Student every day, but it was taken more often than every other day. She estimated that data was taken 65% of the time that Student was in school. (Bisio)

55. Ms. Bisio testified that the targeted behaviors that were not longer occurring in the classroom would be taken out of his behavior support plan. She testified that Student was increasing his hand stimulation and they had discussed changing the data collection system regarding hand stimulation during a December meeting. She testified that Mother’s concerns were addressed in the behavior support plans. She explained that objective number 6 of P-21 was added to the proposed IEP due to Mother’s concern raised regarding on-task behavior. She testified that the reason that hand stimulation was targeted was because it was a concern for Mother. (Bisio)

56. Frances X. Gallagher testified she is a certified and registered occupational therapist. She worked in the Brockton Public Schools for seven years prior to 1998, returned to Brockton in 1998 and continues to work there. She testified that she provided direct services to Student once per week as a co-treat with the speech language pathologist. and a certified occupational assistant (COTA), Rene Westgate, provided his services twice per week. She stated that Student’s primary OT needs pertain to his participation in academics and are attention, coordination, and visual perception skills. She works on using a pencil, writing his name within certain boundaries, and writing letters and numbers. She also works on sequencing activities and therapeutic activities. She reviewed the Franciscan Children’s report (S-13) and found that Student’s functioning is higher than reported in that assessment. She stated that she saw Student once per week from September until December and she’s seen improvement in his ability to track and scan which she explained is important for pre-reading skills. She works with him on his visual motor integration skills which she described as good. She testified that his pencil grip changes and is not always immature as described in Franciscan Children’s report. She stated that he does not always use proper letter formation and therefore letter formation continues to be one of his goals. (Gallagher)

57. Ms. Gallagher testified that many of the activities she uses during her session with Student are designed to assist him with transitions. She stated that she sometimes uses hand over handwriting with Student and she always uses verbalization to identify what they will be doing. She finds the co-treatment with the speech language pathologist to be beneficial to Student. The speech language pathologist tells her when she should use additional language with Student and when she should talk less. She testified that Student has made progress while at Brockton. She stated that by the end of September she could see an increase in Student’s participation and his ability to stay on task. She testified that the COTA reported that he could remain engaged in an activity for twenty minutes at a time. She was familiar with the targeted behaviors on Student’s behavior support plan and testified that none of them had been interfering with their therapy since the beginning of October. Student was able to cooperate and participate to a good degree. Ms. Gallagher described many of the activities that she does with Student to increase his precision with his hands, to increase visual stimuli, to enable him to use colors, and numbers, and to make choices and to increase his gross motor activity. (Gallagher)

58. Ms. Gallagher stated that Student is not “invested in writing” when he is in OT. She explained that Student is able to write numbers and letters, but does not organize. She stated that a typical eight-year-old student could continue with academic tasks longer than student without prompts. She testified that many of Student’s skills are at the four and five year old level (Gallagher)

59. Mother testified that Student is generally calm and sometimes compliant. She testified that he gets up each morning and turns on the television and sets out the food he will eat before getting somebody to help him prepare it. She stated that he can dress himself, but cannot tie his own shoes. She stated that he is able to use the computer and that he decides what he will do with it. She stated that he selects his food and utensils and he chooses tapes to watch and compact discs to play on the computer. She testified that he loves to draw and to put things together and he loves trains. She stated that she communicates verbally with Student at home and he generally understands her. Sometimes she has to use visuals. (Mother)

60. Mother testified that Student has no difficulty with transitions at home because she knows “what fight to pick” and knows what Student likes and dislikes. She testified that Student speaks to her using more than one to two word phrases. Some examples of what he says are, “what you doing”; “where you going”, and “go to train please.” Mother stated that it is sometimes difficult to know if Student understands what he is saying or is just repeating. She testified that she sees Student’s strengths and believes he can achieve a lot. (Mother)

61. Mother stated that Student had a “wonderful” summer program in the summer of 2003. She testified that he made gains and the staff and she worked well together. Mother stated that although Dr. Putnam’s staff offered to meet with her weekly to review Student’s progress, she did not see the point in meeting that often and instead met with them monthly. She stated that during the December 2003 meeting she informed them that Student’s behavior was good but he was not doing work and he seemed subdued. She stated that she had not requested that Student be in inclusion during this school year, but had requested that his IEP include social skills. She stated that she wants Student to receive social communication skills, but does not object to the inclusion setting. (Mother)

62. When asked what she would like to see in Student’s program Mother testified that she wants to see Student increase his social skills. She testified that Dr. Putnam asked her what she wanted them to work on so that they could start collecting data.

63. Joel Ristuccia testified that he is Massachusetts certified school psychologist. He has a Master’s degree in counseling and psychology. He testified that he worked as a program director for a school for autistic adolescents (from 1974-1975) and he has consulted to various schools regarding students with social and emotional disabilities. He explained that since 1975 he has worked with approximately one dozen students at the elementary school level with autism and several of them had Aspergers Syndrome. Since 1975 his practice has focussed primarily on high school and middle school students who were at risk emotionally and behaviorally. (Ristuccia)

64. Mr. Ristuccia testified that he has never met Student and has not observed his program at the Downey School. He has never spoken to the Brockton staff and did not hear their testimony in this matter. To prepare for testifying he reviewed several documents including a 2000 neuropsychological report, a 2003 neuropsychological report, the proposed IEP, the last accepted IEP, the behavior plan and data sheets, and a psychological report done by Brockton. He testified that based upon said review he believed that he had sufficient information to comment upon the sufficiency of Student’s program. He testified that “there seemed to be a disconnect between the evaluations and Student’s IEP.” Mr. Ristuccia stated that he was concerned that the primary goal of Student’s program appeared to be behavior and thought that should be a secondary concern in working with Student. He stated that the majority of the behavioral interventions were successful and that the behaviors were extinguished quickly. He opined that the May Institute had done its job, but he does not think the Brockton staff knows how to switch the focus to academics. He believes that Brockton thinks Student cannot learn and they are preparing him to be well behaved in some structured work setting. He stated he was concerned because he thought Student was learning “splinter skills.”(Ristuccia)

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)10 and the state special education statute.11 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs12 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).

As discussed in In re: Gill-Montague Public Schools District , BSEA # 02-1776, “the Massachusetts statute defines FAPE as ‘special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education,13 , including the Massachusetts state curriculum frameworks.’”14 The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education

in the State involved; and

(D) are provided in conformity with the individualized education program

required under section 614 (d).”15

As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student16 , through “personalized instruction with sufficient support services …”17 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).

The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs,”18 in the context of the potential of the particular student.19

Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.20 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”21 consistent with the interpretation provided by other courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.22 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.

There is not significant disagreement regarding the Student’s profile. Brockton brought this action because the Student was not attending school and it was seeking to have its proposed IEP deemed appropriate for Student. The persuasive evidence shows that the IEP proposed by the Team in January 2004 was reasonably calculated to provide Student with a free and appropriate public education in the least restrictive environment.

Student’s program at the Downey School offered him personalized instruction with sufficient support services. Ms. McCorrison testified regarding the very small group instruction she provided to Student in the areas of reading and math. She was able to describe Student’s abilities in both areas and credibly testified as to the progress Student had made in each area since he had been in school. She also discussed the improvement in Student’s behavior and explained that his improved behavior would allow him to focus more on academic tasks. She stated that she had been having discussions with Dr. Putnam and his staff regarding utilizing their services to assist her in monitoring Student’s academic progress. She also testified that if Student had remained in school he would now be working on addition, telling time, and money recognition in math. He would be working on letter sounds, comprehension of stories, and gaining sight vocabulary. I found Ms. McCorrison to be knowledgeable with respect to Student’s profile and appropriate methodologies for teaching him. I credit her testimony regarding academic skills that he was working on and improvement that he made in his behavior while he attended school this year.

I find that the behavioral support services offered by Dr. Putnam and his staff were both appropriate and effective for Student. Dr. Putnam and Ms. Bisio testified how they obtained parental input and determined what behaviors should be targeted in the classroom. They set up monthly meetings with Mother to review Student’s progress and offered to have the meetings on a weekly basis. In drafting Student’s behavioral intervention plan they appropriately sought parental input, reviewed prior IEPs and a prior functional behavioral assessment, and observed Student’s classroom behavior first hand. They revised the behavioral plan several times in an effort to alleviate concerns raised by Mother. Dr. Putnam and Ms. Bisio have a wealth of experience in designing and implementing programs to assist students with the same needs as Student. I found their testimony to be credible and relied upon it in rendering this decision.

Although the portion of the IEP addressing how Student’s disabilities affect his progress in the curriculum area should have been drafted with more specificity, the testimony of Student’s direct service providers shows that they all understand specifically how Student’s disabilities affect his performance. The testimony of Ms. Levine and Ms. Gallagher demonstrated that they are well aware of Student’s needs and able to work effectively with him. Ms. Levine was able to articulate Student’s OT needs and explain how they pertain to Student’s participation in academics. Both Ms. Levine and Ms. Gallagher had observed progress in Student’s behavior and his ability to attend to tasks. Ms. Gallagher testified that her COTA reported Student could remain on task for twenty minutes. (Gallagher) Ms. Gallagher’s testimony showed that she works at carrying over skills that Student will utilize in the academic setting. She testified that the she has seen improvement in Student’s ability to track and scan and explained that it is an important pre-reading skill for Student to develop. (Gallagher) Ms. Gallagher explained that she continues to work on writing with Student because his letter formation is inconsistent. It was clear from her testimony that she was working with Student on skills that would assist him in the academic realm. (Gallagher) In addition to assisting Student with his occupational needs, she co-taught with the speech language pathologist which she testified helped her to know how much language she should be using while working with Student. I found that Ms. Gallagher understood Student’s needs and was providing effective services to him.

Ms. Levine’s services were also provided to Student appropriately. She testified that in addition to the direct services she provided to Student she consults with Ms. McCorrison twice per week. She was able to describe Student’s strengths and weaknesses and testified that Student had made progress while she was working with him. She testified that she provided Student with the communication boards that he uses and would have been able to customize a board for Student’s use at home if Mother had provided her with the information she requested. She testified that Student is now repeating what she says to him and noted that was good progress because it is how students learn language. (Levine) I found that Ms. Levine was a credible witness and that she understood Student’s profile and provided him with appropriate services.

The program at the Downey School contained most of the elements recommended by the Parents’ independent evaluators at Franciscan Children’s Hospital. (S-8, P-4; S-9, P-6; S-10, P-5) The testimony of Student’s direct service providers showed that they were in fact providing the services outlined in Student’s IEP. Aside from the letters written by Dr. Margolin (S-40, P-28) and Dr. N. Paul Rosman (S-41, P-28) there were not any recommendations in the record that Student should be receiving any services other than those he was receiving at the Downey School. I did not credit the letters of Dr. Margolin and Dr. N. Paul Rosman. Neither of the doctors testified at the hearing and thus were not able to explain the basis for their opinion. Additionally, both letters were written in May 2003, several months before Student began receiving the services at issue.

The record is unclear as to why Mother objected to the program and what lead her to remove Student from school in January. Although Brockton’s witnesses testified regarding an alleged incident in which Mother believed Student had been mishandled by a staff member, Mother did not testify about the alleged incident. Therefore, I did not make any findings of fact with respect to the alleged incident. Mother did not testify as to what she found objectionable about the IEP at issue. She testified regarding portions of past programs that she had liked and disliked, but that testimony was not relevant to the issues of this hearing. The evidence did show that Brockton was responsive to Mother’s concerns when she raised them. Brockton communicated with Mother regarding Student a great deal. The therapists wrote in one communication book and Ms. McCorrison wrote in another almost every day. (S-50, S-51) Dr. Putnam’s staff met with Mother on a monthly basis to review Student’s progress. They consulted Mother when determining what skill areas they should target with Student. They offered to meet with her on a weekly basis, but Mother declined. (Putnam, Mother) Ms. Dunn consulted with Mother in her home to offer suggestions for managing Student’s behavior at home. (Dunn) They were responsive when she raised concerns as demonstrated by the many revisions made to Student’s behavioral support plan. (P-18, P-19, P-20) Ms. McCorrison spoke to Mother every day when she brought Student to school or when Mother picked him up. (McCorrison) The record shows no evidence of Mother raising any concern that was not addressed by Brockton. Although Mother was able to provide insightful evidence as to the things Student is able to do at home, her testimony did not show that the services provided to Student were inappropriate.

I did not rely upon the testimony of Joel Ristuccia. Although his credentials as outlined in his resume are impressive, I did not find that he is an expert in assessing the needs of an autistic student with Student’s profile. He testified that he has worked with a very small number of students in the autism spectrum and many of those he worked with were higher functioning than Student. He never met Student, did not observe Brockton’s program, and did not speak to Brockton staff. His practice primarily focuses on middle and high school students who were at risk emotionally and behaviorally. (Ristuccia) I found that due to his very limited experience working with students similar to Student, Mr. Ristuccia was not qualified to render an opinion as to the appropriateness of the IEP or the services provided to Student.

There is nothing in the record that would suggest that Student is entitled to receive compensatory educational services.

ORDER

I find that the IEP proposed by the Brockton Public Schools for the 2003-2004 school year was reasonably calculated to provide Student with a free and appropriate public education in the least restrictive environment.

I find that Student is not entitled to compensatory educational services.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: June 21, 2004


1

Arthur is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

The issues to be heard were discussed at the Pre-Hearing conference on March 1, 2004. The Parent’s counsel sent a letter to the hearing officer and opposing counsel on March 26, 2004 requesting that the issue of compensatory services be heard. There was no objection by Brockton’s counsel and the issue was read into the record at the commencement of the hearing. Parent’s attorney sought to raise additional issues during the final day of Hearing and the Hearing Officer would not allow the addition of issues by a represented party during the last day of Hearing without any prior notice to opposing party or the hearing officer. The issues that Parent attempted to raise pertained to alleged violation of § 504 and alleged violations of the No Child Left Behind Act. Additionally, Parents’ closing argument requested that the Hearing Officer consider the League School as a placement for Student. Not only did Parents fail to raise this issue prior to the Hearing, the record does not contain any evidence regarding the League School.


3

Student attended kindergarten for two years in Brockton before beginning the first grade. (Mother)


4

Ms. Malonson testified that if Mother had been requesting a transfer to another school pursuant to NCLB, she would have had to have responded to the school’s letter to parents by September 24, 2003. (Malonson, S-52)


5

The record is not entirely clear as to why Parents did not send Student back to school after January 5, 2004. I have not made findings relevant to the alleged incident which occurred on January 5, 2004 because Mother did not testify as to how she perceived the alleged event or what transpired after it.


6

Mother testified that she did not recall Ms. McCorrison offering to write a social story for Student. (Mother)


7

She explained that a monitor teaching assistant has a degree. (O’Reilly)


8

Learning Accomplishment Profile Diagnostic


9

Dr. Putnam testified that there was one additional behavior support plan that was not in evidence that was dated September 2003 and that was revised in the October 2003 plan. (Putnam)


10

20 USC 1400 et seq .


11

MGL c. 71B.


12

20 USC 1412(5)(A)


13

MGL c. 71B, §1.


14

See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).


15

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.


16

For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).


17

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).


18

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).


19

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).


20

The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).


21

603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”


22

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).


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