David v. Boston Public Schools – BSEA # 06-2007



<br /> David v. Boston Public Schools – BSEA # 06-2007<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: David1 v. Boston Public Schools

BSEA # 06-2007

DECISION

This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. § 794; and the regulations promulgated under each of these statutes.

A hearing in the above-entitled matter was held on November 22, 2005 at the Bureau of Special Education Appeals in Malden, MA. The record remained open for receipt of final exhibits until December 1, 2005.

Those in attendance were:

Mother

Grandmother

Loren Singer May Institute

Meredith Garrity May Institute

Matthew McNamara Attorney, May Institute

Elizabeth Kurlan Boston Public Schools (BPS)

Alissa Ocasio BPS

Jill Murray BPS

Andrea Alves Thomas Attorney for BPS

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

The evidence consisted of Parents Exhibits labeled P-1 through P-8; Boston Public Schools’ Exhibits labeled S-1 through S-9; and approximately 3 hours of oral testimony.

It is noted that the Hearing Officer informed Mother of her right to representation and her right to call witnesses at this hearing. Mother chose to represent David’s position without an attorney or advocate. Mother called no witnesses other then testifying herself.

STATEMENT OF THE CASE

David is a 15 year old young man who lives in Boston, MA with his mother. Since March 2005 David has attended the May Center for Child Development (May Center). From March 2005 through August 2005 David attended the May Center in Braintree. The Braintree campus closed and since September 2005 David has attended the May Center in its new location in Randolph. The May Center in Randolph is a program of the May Institute. David is publicly funded at the May Center by the Boston Public Schools (BPS).

On October 21, 2005 Mother rejected David’s proposed Individual Education Plan (IEP) and requested a hearing before the Bureau of Special Education Appeals (BSEA). On October 24, 2005 an initial hearing date was scheduled for November 25, 2005. On Friday, October 28, 2005 Mother requested an emergency hearing for November 22, 2005 due to transportation/safety issues. On Monday October 31, 2005 Mother again requested an emergency hearing on transportation issues. On October 31, 2005 the Hearing Officer scheduled a pre-hearing conference for November 10, 2005. Also on October 31, 2005 BPS requested a postponement of the November 25, 2005 hearing date; a postponement of the November 10, 2005 pre-hearing conference; and a conference call. On November 2, 2005 the Hearing Officer scheduled a pre-hearing conference call for November 7, 2005 and a pre-hearing conference for November 9, 2005. The pre-hearing conference call took place on November 7, 2005 with the parties reaching agreement regarding the transportation/safety issues and several other issues. A pre-hearing order was issued on November 7, 2005 memorializing the parties’ agreement and ordering written status reports by November 21, 2005.

On November 9, 2005 Mother requested an emergency hearing on the issues of May Center’s use of physical restraints with David and alleged child abuse of David at May Center on November 8, 2005. Also on November 9, 2005 Mother revoked her consent for May Center to use physical restraints with David. On November 9, 2005 the Hearing Officer scheduled a hearing for November 22, 2005 limited to the restraint and safety issues raised in Parent’s November 9, 2005 hearing request. On November 14, 15, 16, & 18, 2005 Mother filed additional documents with the BSEA. On November 15, 2005 the Hearing Officer scheduled a pre-hearing conference call for November 21, 2005. The pre-hearing conference call took place on November 21, 2005 and the hearing took place on November 22, 2005.

ISSUE IN DISPUTE

Was David inappropriately restrained and abused at May Center on November 8, 2005 and is David being inappropriately restrained in his placement at May Center?

STATEMENT OF POSITIONS

Parent’s position is that David is being inappropriately restrained, face down, at May Center resulting in bruises and scratches on his body and that this constitutes child abuse. As of November 18, 2005 Mother is keeping David home from school and providing him education at home. Mother does not want David to continue to attend May Center. Mother seeks a home tutorial program from BPS until David can be enrolled in another program/placement.

BPS’ position is that David has made progress reducing his aggressive behaviors since his May Center placement in March 2005, but that he requires the option of physical management/restraint when necessary to insure his safety and the safety of staff and other children at May Center. BPS contends that May Center is appropriate for David but that David’s behavior plan must be fully in place, including the use of physical restraints when necessary. BPS contends that home tutoring is inappropriate and a risk to David’s safety. BPS believes that David should return to May Center as his last agreed upon placement.

PROFILE OF STUDENT

David is a 15 year old young man. He is 5 feet 10 inches tall and weighs 247 pounds. His primary diagnosis is autism. He has limited speech. He was also recently diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). David’s last placement within BPS was in a substantially separate program with a 1:1 aide at the Gavin Middle School. BPS initiated a hearing before the BSEA during the 2004-2005 school year because David could no longer be safely maintained within BPS’s substantially separate program. As a result of an agreement between the parties, David was placed out-of district at the May Center as a day student beginning in March 2005. (See testimony, Mother; see also testimony, Singer; P-8; S-9.)

David is significantly limited in his cognitive functioning ability, falling within the severe range of mental retardation. He functions significantly below his chronological age level with delays in both expressive and receptive communication skills, socialization skills and academic skills. David also exhibits numerous maladaptive behaviors which include: 1) aggressive episodes- (a) aggression or attempting to aggress while moving towards an individual from a standing position or (b) sitting or flapping and aggression or attempting to aggress while rising from a chair or the floor to a standing position; 2) isolated aggression-making contact or attempting to make contact with another person by biting, punching, kicking, hitting, pulling hair or pulling clothes; 3) out of seat behaviors; 4) flopping – any episode of dropping to the floor without permission and lying down, sitting or kneeling on the floor; 5) noncompliance – not responding to a direction within 5 seconds; and 6) hands to/under pants. (See testimony, Garrity; P-8; S-1, 2, 3,9.)

DAVID’S BEHAVIORAL SUPPORT PROGRAM AT MAY CENTER

Each May Center employee goes through a three day comprehensive training at the corporate level (May Institute) regarding May policies and procedures, CPR and first aid training, and physical management techniques. This training is followed by mandated training within the May Center program itself of approximately two weeks in length. All staff are trained in Applied Behavioral Analysis ( ABA); teaching techniques and strategies; managing the classroom; fire safety and emergency equipment; and incident management and reporting. Additionally, all staff are trained in Psychological/Physical Management Therapies (PMT), a curriculum which teaches staff how to manage and de-escalate behavioral situations; how to intervene in a non-physical way; and as a last resort physical management/restraint techniques. Finally, staff are trained regarding specific students, their IEPs, and their indivual behavioral support plans.

Each student has a clinical director assigned to his/her case who works with teachers and staff to develop and implement each student’s individual behavioral support plan (BSP). The clinical director examines each student’s entire clinical picture, reviews all behaviors, data and progress, and modifies/adjusts the BSP as necessary. There is a monthly peer review process for all students who have physical management techniques written in their BSPs’ in which a clinical psychologist from the May Institute reviews each student’s BSP and data collected. The entire clinical support team – teachers, supervisors, behaviorists and staff – carefully follow the BSP written for each student which details very clear steps regarding staff action/intervention to various student behaviors.

Dr. Garrity is David’s clinical director at May Center. She has a Ph.D. in clinical psychology; is board certified in ABA; and is in her post doctoral clinical fellowship prior to taking the state licensing examination. Dr. Garrity has worked in the field of autism since 1995; has been a clinical director at May since 2003; and has worked as David’s clinical director at the May Center in Randolph since September 2005. With David’s clinical support team of his senior teacher, classroom supervisor, education coordinator, behavioral specialist, and classroom staff, Dr. Garrity discusses/reviews David’s BSP and progress or lack thereof; which strategies and techniques work well and which do not; and makes changes or adjustments as necessary. A BSP can be reviewed anytime, even daily when warranted, often weekly, with a scheduled meeting at least every other week. Dr. Garrity observes David a minimum of several times per week, sometimes daily. David’s BSP and all data is peer reviewed monthly by May Institute’s vice president for peer review and applied clinical research, licensed clinical psychologist, Dr. James Luiselli.

Of the six maladaptive behaviors listed under PROFILE OF STUDENT, above, David is restrained only for #1, Aggressive Episode, pursuant to his BSP. The remaining five maladaptive behaviors listed in David’s BSP (see PROFILE OF STUDENT , above) are all addressed without the use of physical restraints. If David has met the criteria for an aggressive episode, the following consequence strategies are employed: 1) block immediate aggression; 2) implement modified supine protective hold with one staff member on each arm; 3) start timer; 4) if David begins to kick, use a third staff member to hold legs; 5) release hold after one minute, non-contingently; 6) instruct David to go to his table or seat; 7) if aggressive episode continues re-implement protective hold Step 2 and repeat procedure; 8) if David complies with instruction to go to table or seat, continue with original demand.

Under a modified supine protective hold David is laid down on the floor, on his back, arms spread out horizontally, with a staff member on each arm and 1-2 staff members on David’s legs if necessary. Under David’s BSP, all holds last only one minute. He is then released, non-contingently, with regard to his behavior i.e., he is always released after one minute. If David re-aggresses, the modified supine protective hold is re-implemented and the procedure is repeated.
(See testimony, Singer; Garrity; S-1, 2, 3, 4, 8.)

FINDINGS AND CONCLUSIONS

Based upon the oral testimony and written exhibits introduced into evidence and a review of the applicable law, I conclude that David was not inappropriately restrained or abused at the May Center on November 8, 2005, nor is David being inappropriately restrained in his placement at the May Center.

My analysis follows.

On November 9, 2005 Mother went to the Randolph Police Department (RPD) and filed a complaint that David had been abused at the May Center the previous day. On November 9, 2005 two RPD officers went to the May Center, examined David without his shirt on, and took photographs (testimony, Mother; Singer). RPD issued a written report on November 9, 2005 that

David had no marks or bruises on his back as described by the reporting party and that no assault took place. (See S-7- RPD Report of November 9, 2005.)2 That same day Ms. Singer reported the incident to the Massachusetts Department of Social Services (DSS) indicating that Mother felt David had been mistreated. DSS later reported to Ms. Singer that DSS was screening out the report i.e., that they were not going to investigate it further (testimony, Singer). It is undisputed by the May Center that David was restrained in a modified supine protective hold on the floor for three one minute periods at the May Center on either November 8 or 9, 2005 for three aggressive episodes, all of which occurred within several minutes of each other; and that May Center had Mother’s consent to use this protective hold and restrain David at that time (testimony Singer; Garrity; Mother; S-7, 8 ). Based upon the findings of the RPD and DSS, I find no basis to conclude that David was abused by the May Center or inappropriately restrained during this incident.

I also conclude that David is not being inappropriately restrained in his placement at the May Center. The unrebutted testimony indicates that five out of David’s six targeted maladaptive behaviors are addressed without the use of restraints. Only the most serious maladaptive behavior – aggressive episodes – result in protective holds/restraints to protect David, staff, and other children. No evidence has been presented that David is being restrained on the floor face down as alleged by Mother. Rather the unrebutted evidence demonstrates that David is always restrained utilizing a modified supine protective hold on his back on the floor, from which he is released, non-contingently after one minute. (See DAVID’S BEHAVIORAL SUPPORT PROGRAM AT MAY CENTER , above; testimony, Garrity; S-3.)

Based upon the data collected by the May Center from August 1, 2005 through November 9, 2005 – appropriately 3½ months – David has required protective holds/restraints on only five occasions: 1) twice in September, once four times (four one minute holds) and once three times; 2) twice in October, once two times and once one time; and 3) the November incident detailed above, three times (S-4). Therefore, on the vast majority of days, David is not protectively held or restrained at all. Further, the data collected by May Center demonstrates a considerable decrease in David’s flopping behaviors and a stabilization of David’s isolated aggressions, which are both handled without the use of any type of physical restraint. (See S-3, 4; testimony Garrity.)

I find Mother’s testimony that she has found bruises, bite marks and scratches on David while bathing him to be credible. However, David engages in self-abusive behaviors such as biting himself, slapping himself, hitting himself and scratching/skin picking (testimony, Garrity; Singer; P-8; S-9). Further, given David’s size, if David is particularly aggressive and resists a protective hold/restraint, it is possible that some bruising or marks could result.

Based upon the totality of evidence presented, I conclude that the May Center’s BSP for David is specific and comprehensive, with highly detailed behavioral strategies and techniques and well documented data collection. I find that the May Center has dealt with David’s challenging behaviors in an appropriate manner and that David has made behavioral progress at the May Center. Some maladaptive behaviors have decreased and David requires restraint only infrequently. I conclude that on those occasions David is put into a protective hold and restrained it is, unfortunately, necessary for his own safely and the safety of others at May Center.

Finally, Mother has presented no evidence justifying a home tutor for David. Given David’s complex constellation of special education needs and maladaptive behaviors, I find no safety or educational basis for such an order. I strongly advise Mother to allow David to return to the May Center, with consent for his BSP, so that all of his special education needs can be addressed in a consistent, comprehensive, and appropriate manner.

By the Hearing Officer

_________________________

Dated: December 20, 2005

Raymond Oliver


1

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


2

There is some confusion regarding whether David was restrained on November 8 and the RPD came to May Center on November 9 or whether David was restrained by May Center on November 9 and the RPD came to May Center on November 10, 2005. The parties are in agreement that the restraint happened on one day and the RPD came on the following day. Given that Mother observed marks on David in the shower and reported the incident to RPD the following day; given that Mother revoked her consent for May Center to restrain David on November 9; and given that the RPD report is dated November 9; I am assuming the restraints took place on November 8, 2005.


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