E.R and Worcester Public Schools – BSEA #05-2967



<br /> E.R and Worcester Public Schools – BSEA #05-2967<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

DECISION

In re: E.R. and Worcester Public Schools

BSEA #05-2967

This decision is rendered pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. 1401 et seq., 29 U.S.C. 794, and the corresponding regulations.

A hearing was conducted on May 17 and 18, 2005 at the Catuogno Court Reporting Service in Worcester, Massachusetts. At the request of the parties, the record closed on June 1, 2005 upon receipt of the parties’ closing arguments.

Persons present for all or part of the hearing were:

Ms. R. Mother of E.R.

Marjorie Soforenko Attorney for Mother and E.R.

Anne Ferioli Advocate

Mary Ellen Rogers Director, teacher, YMCA

Joanne Emerle Clinical Director, Crossroads Center For Children

Jeffrey Rubin Director of Special Education, Worcester Public Schools

Mary Joanne Reedy Attorney for Worcester Public Schools

Denise Haley Children Service Coordinator, Massachusetts Department of Mental Retardation

Laurie Dlugos Special Education teacher, Worcester Public Schools

Laurie Halpin TEAM Chairperson, Worcester Public Schools

Bette Carr Principal of Worcester Public School’s Gates Lane School

Paula Cardaci Speech/Language Pathologist, Worcester Public Schools

Ann Boule Director of Physical and Occupational Therapies, Worcester Public Schools

Jeffrey Robinson Behavioral Consultant, Behavioral Concepts, Inc.

John Geentz Attorney for the Massachusetts Department of Mental Retardation

Maryellen Coughlin Court Reporter

The official record of the hearing consists of Parent Exhibits marked as P1 – P701 and School Exhibits marked as S1 – S27 and approximately 400 minutes of recorded testimony.

ISSUES2

Does the Worcester Public School’s (Worcester) individualized educational plan (IEP) calling for E.R.’s educational placement at its Gates Lane School SAIL program (SAIL) provide her with appropriate teaching methodologies so that she is physically safe and so that she receives a free and appropriate public education (FAPE) in the least restrictive setting?

Does Worcester’s IEP offer a sufficiently intensive program of therapies so that she receives FAPE?

If not, is the Crossroads School (Crossroads), a private Chapter 766-approved school in Sudbury, Massachusetts, able to provide E.R. with appropriate teaching methodologies and with sufficiently intensive therapies so that she would be physically safe and so that she receive FAPE in the least restrictive setting?

PARENT’S POSITION

Worcester’s staff is unable to provide E.R. with a safe and appropriate educational setting. While attending the Gates Lane School, she frequently returned home from school with unexplained bruises on many parts of her body. Further, while the staff worked with E.R. in her home, E.R. cried so frequently, it was clearly not a good program for E.R.. Additionally, Worcester offers insufficient hours of speech/language, occupational, and applied behavioral analysis (ABA) therapies. Finally, by virtue of its shortened fifth day of each week, it fails to provide a sufficiently intensive summer program. Crossroads offers a program with smaller classrooms, one that uses more gentle ABA techniques – a three-step approach – and is therefore safer and more appropriate for E.R.. Further, it offers more therapies and a five-day rather than four and a half-day summer program. Finally, it includes parents at school much more frequently, and is therefore, more appropriate for E.R..

SCHOOL’S POSITION

E.R. is safe at school. With few exceptions, E.R. has not been bruised while attending school. Worcester’s ABA methodologies are appropriate for E.R.. Mother’s assertion that Crossroads offers a different “more gentle” methodology is unfounded. To the extent that Worcester’s program has been unsuccessful, it is because Mother is having difficulty accepting the fact that her daughter requires a highly structured program using ABA methodologies. It is critical that E.R. attend such a program, given her age and her low functioning. Further, Worcester offers a sufficient amount of speech/language, occupational, and ABA therapies, and is capable of offering more, if necessary for E.R.’s education. Worcester’s program is not only appropriate for E.R., but it is offered in the least restrictive setting. Parent’s chosen school, Crossroads, is more restrictive and lacks mainstreaming opportunities. Further, it currently lacks a CCC certified speech therapist and a PhD level behavioral specialist. Finally, it fails to offer a home component so necessary for carryover of skills in to the home.

STATEMENT OF THE FACTS

1. E.R. is a five-year old3 girl diagnosed with autism and pervasive developmental disorder. She is essentially nonverbal and uses gestures to communicate her interest in objects and activities. She enjoys activities at the YMCA as well as books, music and puzzles. She exhibits stereotypical behaviors, including virtually no communicative functioning or eye contact and frequently exhibits tantrums, aggressive and self-injurious behaviors, crying, screaming, hitting other/herself, and throwing herself down on the floor or a chair. Accordingly, her behaviors require direct supervision at all times in order to ensure her safety. She is not toilet trained. (S1, 2, 3, 6, Mother, Rogers)

2. In August and September of 2003 when E.R. was four years old, Worcester assessed E.R.’s speech/language, gross motor, and fine motor skills. (S20) Its TEAM convened and developed an IEP calling for a half-day preschool program, speech therapy twice weekly, speech, occupational, and physical therapy consultations, and two hours daily home ABA therapy. In October, Mother rejected this preschool program but accepted the ten hours weekly home ABA services. (S19) In addition to this ABA therapy, E.R. also attended a nursery school at the YMCA for two and one half hours, three days weekly for the period September 2003 through the summer 2004.4 Mother served as a 1:1 aide there until the YMCA hired an aide. . According to Mother, E.R. was very happy at the YMCA program and never was bruised there. Apparently, with the Y’s 1:1 aide, E.R. would go for a walk, be taken to a mirror, or allowed to roam (and maybe sing) in a quieter room so that she could self-calm. (Mother, Rogers) In contrast, E.R. cried at length and tantrumed daily with the ABA therapist. Mother discovered that this therapist had never worked with autistic children and was interning with her daughter. (Mother, Rogers) According to Mother, she would intervene in order to calm her daughter down, and after many sessions, Mother terminated them. According to Worcester, Mother disrupted the home-based therapy in order to “rescue” her daughter from the demands of the therapy. (Mother, Robinson)

3. In December 2003 and February 2004, Dr. Manea, a clinical geneticist from the MGH/LADDERS Clinic assessed E.R.’s educational needs and recommended a highly structured self-contained preschool program with staff that is ABA trained, with the incorporation of speech/language, occupational therapy, and individualized discrete trial training. She stressed the need for a one-to-one aide who is ABA trained, the need for intensive discrete trial training with a minimum of 20 hours weekly, occupational therapy geared to sensory integration a minimum of three one-hour sessions individually weekly, intensive speech/language services, and a social skills group. (S14)

4. On June 15, 2004, Worcester’s TEAM convened and proposed a June 2004 – June 2005 IEP calling for SAIL’s substantially separate kindergarten at the Gates Lane Elementary School. (S12, S13, P54-70) It is a six hours / day, five days per week program serving 80 – 85 children under the autism spectrum (preschool through age 13 year old). The children vary in their ability to handle inclusion settings – from full inclusion up to a substantially separate setting. E.R.’s class is taught by a special education teacher and an instructional assistant. The IEP also called for speech, occupational, and physical therapies as well as consultation services. Finally, it called for mainstreamed lunch and music sessions. (Halpin, S12, S13) Although not on the IEP, occupational therapy was also offered and provided. (S7)

5. In July 2004, E.R. began attending Worcester’s SAIL program. (Mother) According to Mother, E.R.’s behavioral changes were striking. “She was like an animal when she came home. Her behavior changed, changed completely. Bruises all over, increasing bruises every day, each day.” (Tra.1 at 28) The bruises were on her thighs, back, elbow, back of knees, front of legs, two on her spine, one on her belly, one on her chin, a few on her forehead, but mostly on her legs behind her knees and thighs. (Tra.1 at 39-40) According to Mother, she notified the TEAM chairperson during the summer program, asking that the staff be gentler with her so that she didn’t self-injure. Her behaviors at home worsened, so Mother kept E.R. at home until she calmed down before returning her to school. E.R. awoke in the middle of the night, traumatized, frightened, punching Mother. She resisted going to school, running back in to the car, refusing to let go of the car seat, crying. This behavior was different from her behavior when she went to the YMCA. (Mother)

6. On September 9, 2004, Mother accepted Worcester’s June 2004 – June 2005 IEP after having rejected a similar version the day before. She had rejected the use of discrete trial ABA services, saying that family values, convictions and culture cannot allow such use. (S12, S13, P54-70) E.R.’s class included approximately seven children, one teacher, and an aide. (E.R. did not have a 1:1 aide assigned to her). (Dlugos, S12)) She attended three of the four weeks in September, few if any days in October, a few days in November, and a few days in December. She did not attend thereafter. (S8)

7. According to Worcester’s staff, E.R. made some gains in that she was not having a lot of self-injury, she was not tantruming, and was sitting longer. Her gains, however, were compromised by her spotty attendance. Her teacher acknowledged that there were a few occasions where she bruised herself during a tantrum, however, she asserted that the staff used blocking techniques to stop her from hurting herself. (Dlugos)

8. Although E.R. stopped attending Worcester’s program, she continued attending the YMCA where she participated in gymnastics, swimming, and dance/music classes. According to Mother, she participated and modeled after peers. (S3)

9. In November of 2004, E.R. was seen at the Spaulding Rehabilitation Hospital and Ladders Pediatric Program (Spaulding) for an occupational therapy evaluation, based on Mother’s as well as Dr. Manea’s concerns regarding E.R.’s sensory processing. The occupational therapist recommended a sensory based occupational therapy sessions two 35-minute sessions weekly5 for 10 – 12 weeks. Among her list of recommendations, she called for movement breaks during the course of the day when agitated or anxious; active recess periods; deep pressure/heavy work activities prior to dressing, grooming, or “any activity to which E.R. displays tactile hypersensitivity”; have her suck a thick substance (such as applesauce or pudding) through a straw in order to calm her. (S7, P36-39)

10. On December 6 and 13, 2004, Dr. Samant wrote medical notes regarding phone calls with Dr. Saleh, E.R.’s child psychiatrist at U Mass, wherein Dr. Saleh was concerned about lack of services, considered filing a 51A, and then did file a 51A, feeling that Mother was resistant to meeting her child’s needs. (S9)

11. On December 27, 2004, Mother filed a hearing request with the Bureau of Special Education Appeals. Mother asserted that her daughter had become more aggressive and violent at home, that she punches herself more, is afraid to go to school, lost her appetite at home, and comes home with a hoarse voice and with bruises on her back, stomach, legs and arms and one on her forehead. She sought a different school having an autistic program. (P4) Thereafter, Mother amended her hearing request, stating that E.R. required short walks in order to calm her down, and the school was refusing to do this, for the staff must “abide by rules and one of the rules is that the children cannot be taken out of the classroom.” (Tra. 2 at 57, P5-6)

12. On February 4, 2005, Dr. Sealy from South Bay Mental Health wrote a letter stating that restraining E.R. may not be the best mode of intervention. (P52)

13. In March of 2005, E.R. was seen at the UMass Pediatric Neurology Clinic by Drs. Markowski and Sharif. They assessed her for a possible movement disorder. They noted her ritualistic behaviors, her self-stimulating behaviors, and her increasing self-injurious behaviors, such as slapping and hitting herself, as well as more aggressive behaviors towards her mother. They noted Mother’s report that E.R. had been more irritable over the past several months. Finally, they noted Mother’s statement that E.R. had done well in the preschool where she had 1:1 supervision, but “since moving to a regular class in kindergarten, she has been increasingly difficult to manage with inattention, irritability and assaultive behaviors”. They found that her movements were consistent with autism, not with a primary movement disorder or with seizures. Further, they were consistent with children with a poor ability to express themselves through language. They would not recommend any changes in her medication regime, noting that she was taking Ritalin and this improved her attention and ability to focus, and that she would soon be taking Risperdal. (S4, P40-42)

14. In March of 2005, E.R. was also seen at the MGH/LADDERS Clinic. The speech/language evaluator found her receptive language to include some routine phrases and directions if spoken in context and paired with cues. However, she did not respond to single step instructions spoken without contextual cues. Expressively, she had limited communication through physical actions, and did not participate in turn-taking or social routines, use vocalizations, gestures or eye gaze to indicate needs/wants. She recommended a small class size with a high student/teacher ratio, and speech/language therapy two times per week. (S6, P47-49)

15. On April 28, 2005, Dr. Susan Manea from the MGH/LADDERS Clinic, conducted a follow-up exam of E.R.. She noted that E.R. was taking Risperdal medication and that her behavior had improved significantly.. She noted that E.R. continued to have no functional play, was not communicative, and had limited eye contact, spending most of her day engaging in sensory seeking and repetitive behaviors. In stating her impressions, she stated that the public school programming was inappropriate without services or individualized attention. She “absolutely requires a highly structured full day specialized program [with ABA based style and format] such as Crossroads in Sudbury where all of the individuals are trained and experienced in caring for children with autism spectrum disorders.” Her recommendations call for the individualized discrete trial training throughout the day; a full day, full year program including summers at the same level of intensity to prevent regression; a minimum of 30 hours of individualized discrete trial training weekly; individualized speech/language services three sessions weekly; occupational therapy with a sensory integration basis and sensory diet three sessions weekly; social skills training; and finally, a 1:1 aide at all times to ensure her safety, to mediate social skills, and to incorporate a sensory diet. (S2, P30-31)

16. This same month, E.R. was also evaluated by a physical therapist at Spaulding. She noted that a few weeks earlier, E.R. had discontinued taking Ritalin and was taking Risperdol and that Mother reported that she is now less anxious and less self-injurious. The therapist found that E.R. required modeling of all tasks first, and that she required high cuing (verbal and hand held) in order to complete/participate in tasks. She did not recommend physical therapy, but recommended continued participation in community activities (swimming, gymnastics, etc.). (S3, P43-46).

17. Worcester convened a TEAM on May 10, 2005 to review the various evaluation reports and issued an IEP calling for E.R.’s continued placement at SAIL, but calling for differences from her previous IEP in several ways. E.R. would now have a 1:1 ABA therapist who would be with her throughout the day. This person would not be a typical instructional assistant, but a trained therapist, probably from Behavioral Concepts. Further, the IEP called for consultation services not previously called for – consultation by the ABA Coordinator 195 minutes per week, and the behavioral consultant 21 minutes per week (as well as the speech/language staff 30 minutes per week and the occupational and physical therapists 15 minutes per week each). The IEP’s direct services included two hours / day of 1:1 ABA therapy outside of the classroom, two hours/day 1:1 ABA therapy at home, four hours / day 2:1 ABA services with the ABA therapist and/or the special education teacher; two 30-minute sessions per week speech therapy, and one 30-minute co-therapy session per week wherein the speech therapist works with the occupational or physical therapist. Finally, it called for a summer program consisting of a four day program plus on the fifth day, two hours / week home ABA services. This program included the two hours daily 1:1 ABA therapy, four hours daily 2:1 ABA therapy with the therapist or the special education teacher, and two 30-minute sessions per week speech therapy. The IEP detailed the specially designed instruction, calling for the ABA approach including discrete trial training, task analysis, prompting and chaining. It included data collection with a communication notebook between teacher and home in order to maximize consistency of approach. Monthly clinics were called for to review her progress. It called for a total communication approach, using body language, facial expressions, gestures, basic signs, objects, photos and pictures. It called for visual cues, modeling, and prompting. It stated that she would require hand-over-hand manipulation to engage in non-preferred activities. (S-1, Halpin, Dlugos, Carr).

18. In October of 2004, Mother reported to the Department of Mental Retardation that E.R. was being repeatedly bruised at school, and then apparently apologized to the teacher for doing this. (Dlugos) In addition, because E.R. was not attending school and Mother was so resistant to allowing E.R. to be served, Worcester also filed a report with DSS. (Carr) Mother asserts that this was filed in retaliation for her having filed a complaint. (Mother)

19. On May 9, 2005, Mother filed a report with the Massachusetts Department of Education asserting in detail that her daughter was being bruised at school, that it is not a safe environment and that she seeks a private school setting. She stated that she was very aggressive at home, would awaken in the middle of the night, frightened, that she would hold on to the car seat crying, not wanting to go to school. She stated that the school staff failed to file incident reports. (P7-10)

20. The evidence regarding bruising is as follows:

· · In July 2004 when E.R. began attending Worcester’ summer program, Mother testified as to her daughter’s behavioral changes and as to the extensive bruising. (supra, par. 5), and stated that she spoke with her teacher and notified the TEAM chairperson during the summer program about the self-injurious behavior, asking that the staff be gentler with her so that she didn’t self-injure.. (Mother)

· · Her teacher testified that when she (teacher) reported a bruise to Mother, Mother sympathized, saying that she experiences the same problem. (Dlugos)

· · Mother called Ms.Ferioli asking for advice, saying that her daughter had returned home from school with bruises. She called saying this six or seven times (in the fall of 2004). Mother told her that sometimes, she would see the bruises after undressing her, and would bring it to the school’s attention the next day, and no one seemed to know where they were coming from. Mother told her that at a meeting, the staff said that they felt that the bruises came from home, not from school. (Ferioli).

· · At the September 9, 2004 TEAM meeting, the TEAM Chairperson testified that Mother brought up the concern regarding E.R.’s self-injurious behaviors, but Mother made no mention of bruising and made no complaints regarding E.R.’s treatment at school. It is noted that the witness remembered no discussion regarding the need to address her self-injurious behaviors, and the IEP makes no mention of this and has no specific goal regarding such. It is further noted that this TEAM did not include a behavioral specialist. (S12, Halpin)

· · On September 30, 2004 a school nurse reported a reddened chin and small grayish bruises on her shins. The teacher had reported “E.R. was hitting her chin with her own hand more often than usual today”. (P-21) After seeing this report, Mother went to the nurse to show her an ankle bruise, saying that it also should be on the report. The nurse told her that it was unclear whether that bruise occurred at school or home and therefore could not be on the report. (Mother)

· · On September 30, 2004, a medical note reports of a bruise on E.R.’s forehead; Mother reported that it happened at school. Mother also reported frustration with a lack of a consistent teacher. (S-9, P-25)

· · On October 4, 2004, a medical note reports that Mom is not happy with the school/ABA. Lots of bruises at school. Feels they are too tough on her. Thinking she needs another school. PE [physical exam?] – two round brownish baby bruises on thigh, back. (S9, P25)

· · Medical notes before September 2004 and after November 4, 2004 make no mention of observed bruises, but on December 13, 2004, it is noted that Mother would not send her child to the “school’s bruising”. (S9)

· · The principal testified that she never received a report from Mother (or any staff person) of a specific bruise. Rather, Mother reported a vague statement that bruising was occurring. (Carr)

· · Dr. Robinson testified that he was never told of E.R.’s bruises. If told of a pattern of recurring self-injury, it would trigger the need for data and maybe a functional behavioral assessment to develop strategies for extinguishing the self-abusive behavior. He testified that E.R.’s attendance deterred Worcester from developing a plan and strategies. (Robinson)

20. Crossroads is a Chapter 766 approved private day school for students ages 3 – 14 years old who are diagnosed with Pervasive Developmental Disorder, Autism Spectrum Disorder, and Asperger Syndrome. It offers a database program implementing ABA techniques. It teaches the discrete trials, then teaches fluency and generalization of that skill. It uses direct and naturalistic teaching methods. Further, its teaching methodology includes a “three-step” compliance technique wherein a verbal direction and then modeling are used before physical hand-over-hand assistance is used. The goal is “errorless” teaching so that the child succeeds each time, but as independently as possible. The program also provides a toilet training regime of 5 – 15 minute toileting intervals. The class proposed for E.R. has five students, ages five – seven, a teacher with a Master’s degree in severe special needs who has worked at NECC for several years. The two assistants may not have college degrees, but would have had an extensive two-week training plus ongoing weekly trainings. Further, the teacher is always in the room with them and therefore supervises them. The staff does not include a behavioral consultant, though the executive director is a board certified behavioral analyst. Crossroads has two speech assistants and is in the process of hiring a speech therapist. Further, it has two occupational therapists (without sensory integration certification). Crossroads does not provide home services, however, parents can attend monthly sessions at school for hands-on and consistency meetings. Crossroads offers a five-day a week summer program. (Emerle, P11-20) Mother asserts that Crossroads staff encourages parent participation and training. She noted that although taking students for walks is the exception, given the need to learn to follow rules, they will if necessary, or they will take a child to a quiet room if highly sensitive to noise. (Mother)

21. Since E.R.’s removal from Worcester’s program, she has received limited services in her home, serviced in part by a privately-hired ABA therapist, and in the last few weeks, by Worcester’s speech/language therapist and occupational therapist. Worcester had offered the daily two-hour sessions of home ABA therapy (in addition to rejected school-based program), however, Mother had refused these services. The speech/language and occupational therapists reports that E.R. has made gains in her ability to sit, to focus, and to learn. (Cardaci, Boule, S5).

FINDINGS AND CONCLUSIONS

I. I find Worcester’s prior handling of E.R.’s behaviors to be fraught with problems, however, I find that its proposed May of 2005 – May of 2006 IEP, as modified by this decision, is reasonably calculated to provide E.R. with a FAPE in the least restrictive setting. Finally, I find that the Crossroads School, although offering an intensive ABA program, is more restrictive and accordingly, not appropriate for E.R.. This finding is supported by several sub-findings. That is, with modifications deemed necessary in this decision,

· Worcester is able to provide a safe setting;

· Worcester’s use of ABA discrete trial instruction is the appropriate teaching methodology for E.R.;

· Worcester is able to provide the intensive occupational and speech/language therapies called for by Dr. Manea, if such is needed;

· Worcester’s summer program is sufficiently intensive to easily achieve the necessary intensity by adding a few hours more services on the fifth day.

It is this case’s history that has so influenced the parties’ divergent views, and it is this same history that now influences the determination of E.R.’s educational needs. The fact is that the parties agree as to E.R.’s profile; that is, she is essentially non-verbal, and presents with tantrums, aggressive, and self-injurious behaviors such as hitting herself or others, and throwing herself against chairs or the floor. (S1, Mother, Dlugos, Haley, Carr) Also, the parties substantially agree as to her educational need for a highly structured, full day, full year ABA program with individualized discrete trials and with speech/language and occupational therapies. (S1, P30-39, Mother) In fact, both Worcester’s Sail program and Mother’s requested Crossroads provide for such. Yet, the parties’ history together has polarized their positions as to whether Worcester is able to provide for E.R.’s needs. From Mother’s point of view, E.R. “became like an animal” when exposed to Worcester’s severe ABA program and continually hurt herself in their care. From Worcester’s point of view, Mother refused to accept the fact that E.R. needs the ABA-based teaching methodology, and E.R. did not hurt herself in their care.

After thoroughly reviewing the evidence in this case, I find that Mother was historically reluctant to accept ABA services, however, she ultimately accepted both the home-based ABA therapies as well as the school-based programs.6 (S12) In both settings, Worcester fell short of meeting E.R.’s needs, fueling Mother’s fears and leading to her polarized position that she will never put her child in Worcester’s hands. In October of 2003, Worcester’s first home-based ABA therapist working with E.R. had no experience working with autistic children and no experience providing ABA services. (Tra.2 at 229-230) (Note Dr. Manea’s clear recommendation that E.R. needs staff trained and experienced in working with autistic children.) Dr. Robinson accompanied the therapist several times during this period, for he was aware of the problems, yet rather than providing a more experienced ABA therapist to work with E.R.’s difficult behaviors (for “people have to be trained”, he testified), he decided that Mother’s attempts to comfort her child were the problem. (Tra.2 at 231) The end result was that both parties found this experience with the in-training ABA therapist unsuccessful. E.R.’s second experience with the Worcester program began approximately in July of 2004. This is the time when Mother asserted that E.R. became “like an animal” and repeatedly became bruised at school. Clearly, she and her teacher discussed the self-injurious behaviors and bruising, and both acknowledged that it happened at home and at school.7 (Tra.2 at 77-78, 82, 85-90, 130). However, Mother was not persuasive that the bruising was as extensive or reoccurring as she claimed. If it was, she surely would have brought specific evidence to the administration, rather than just the general concern of self-injury raised at the September TEAM meeting. Even so, staff members knew that some bruising and self-injury occurred. Yet, despite this knowledge of self-injuries and bruises, and despite Dr. Manea’s clear recommendation that E.R. be provided a 1:1 ABA-trained aide, Worcester had provided no one-to-one aide, never mind an ABA-trained aide. (S14, Dlugos) Further, when the self-injurious behaviors were brought to the attention of the administration and the TEAM, there were no specific discussions regarding the need for IEP behavioral goals or a behavior plan for extinguishing the behaviors, for providing techniques and accommodations to calm her down or to preempt tantrums. Dr. Robinson is unpersuasive that it was E.R.’s poor attendance that deterred the development of such a plan. (Tra.2 at 257) The fact is, Worcester failed to even start the process, either by Dr. Robinson’s involvement, or through the TEAM process, to develop a behavior plan addressing her self-injurious behaviors. Further, she attended 178 out of the 23 summer days with 5 tardies (S15), and not until October of 2004 did her attendance become so sporadic. (S8) Finally, Worcester’s response to the accusations regarding bruising at school was inadequate, to say the least. It may be that neither Dr. Robinson nor the principal received reports of bruising; it may be that at the September 2004 TEAM meeting, Mother reported self-injurious behaviors and not the consequential bruises. It may be that in Ms. Dlugos’ mind, the bruising was not severe. This does not mean bruising did not happen; it means that the staff knew self-injuries occurred and at least some bruising occurred, and the staff failed to address the problem. The fact is that both parties were aware that this child’s behaviors included self-injurious behaviors at school and at home, so denying any problem in ensuring a safe environment was just avoiding the issue. They not only failed to address the problem at school, but they failed to train Mother to carry over techniques so as to reinforce extinguishing the behavior. Whether the teacher should have requested assistance from the behavioral specialist, or whether the behavioral specialist should have on his own called for a plan is immaterial; the fact is that the self-injurious behavior was insufficiently addressed by the teacher, the behaviorist, and by the TEAM.

This is history. Worcester’s currently proposed educational program is far superior to its former program. Whereas the previous IEP makes no mention of ABA methodologies, this IEP calls for such throughout the IEP. Whereas the previous IEP failed to provide for a 1:1 aide, this IEP provides for a 1:1 aide and further mandates that the aide must be an ABA-trained therapist. Finally, this IEP provides for consultation services by the ABA Coordinator, and the PhD level behavioral consultant (in addition to the speech/language and occupational/physical therapists’ consultations). These additional services allow for a safer setting in that the 1:1 ABA therapist will be able to pre-empt or block self-injurious behavior and will be in a better position to extinguish unwanted behaviors and develop communication skills. Further, by adding the consultation services to the IEP, it is clear that a behavioral consultant must be closely involved with this case. Clearly, Dr. Robinson was involved with the oversight of the ABA therapist and was the behavioral consultant to SAIL (Robinson, Dlugos) It is unclear, however, how much consultation he provided. This current IEP specifically calls for such.

Although Worcester’s proposed IEP calls for these additional services, rendering the IEP significantly more appropriate for E.R. than the previous IEP, the history in this case warrants additional outside consultation services, at least for a transition period until the parties are comfortable regarding the implementation of Worcester’s proposed IEP. There were several areas of concern leading to this conclusion:

· First, Worcester intends to continue implementing this IEP with the same BCI services headed by Dr. Robinson, yet it was BCI’s ABA therapist who lacked any experience working with autistic children. Given the severity of E.R.’s disability, given her self-injurious behaviors, and given Mother’s concerns regarding E.R.’s response to the ABA services, Dr. Robinson was unpersuasive that BCI provided an appropriate ABA therapist and was further unpersuasive that his decision was correct not to replace her with a more experienced therapist after becoming aware of the difficulties. She may have been supervised (how much is unclear, however, Mother stated that the supervisor focused on the data sheets, not on the therapist’s work with E.R.), however, this clearly did not remedy the situation. I note that Worcester relies on BCI to provide the ABA therapist, yet BCI uses therapists, some who lack Bachelor’s degrees, and uses supervisors who may lack Master’s degrees. The evidentiary record as to whether such educational backgrounds are sufficient for E.R. is unclear. What is clear is that Dr. Manea stressed the need for staff ABA-trained and experienced in working with autistic children, E.R.’s previous educational experience was not successful, E.R.’s needs are severe, and the ABA therapist and supervisor play a critical part in her education. Worcester may be accurate that Mother intervened too much, however, as stated, Worcester is not persuasive that this was the only problem.

· Second, despite BCI’s integral involvement with E.R.’s education, Worcester had not addressed the self-injurious behaviors by conducting a functional behavioral assessment or otherwise addressing the behaviors through the TEAM process. That previous IEP had included no goals for extinguishing such behaviors.

· Finally, while testifying, Dr. Robinson, BCI’s PhD level supervisor, was told that Worcester’s speech/language therapist allowed E.R. to cry for no more than a minute, yet he showed no concern that with BCI’s ABA therapist, E.R. had cried and tantrumed frequently for 20 to 30 minutes at a time. Dr. Robinson correctly pointed out that E.R.’s behavior may have improved due to the current medication, however, that is only one possible explanation for the difference in staff success with E.R.. His response did not foster confidence that every step would be taken to set up a program providing E.R. with a more positive educational experience.

The outside consultant should work with Dr. Robinson and Worcester’s staff to determine the appropriate expertise and experience for E.R.’s ABA therapist and the therapist’s supervisor. Further, this outside consultant should work with Dr. Robinson in developing a behavior plan for extinguishing the self-injurious behaviors, and in developing classroom modifications and strategies for pre-empting tantrums and protecting E.R. against self-injurious behaviors. This outside consultant must be a person mutually agreeable to Mother and Worcester.

Finally, Worcester’s IEP calls for fewer weekly therapy sessions and during the summer weeks, a shorter day on Friday than recommended by Dr. Manea. Given Worcester’s ability to provide the number of weekly therapy sessions recommended by Dr. Manea, this becomes a non-issue as far as determining whether E.R. should attend Worcester’s or Crossroads’ program. Given that Dr. Manea’s evaluations are the most current in the record, and given the intensity of E.R.’s needs and the many months wherein she received no or too few services, I find Dr. Manea’s recommendations credible, despite the lack of testimony. That is, E.R. should receive the three weekly sessions of occupational therapy with a sensory integration basis and sensory diet rather than Worcester’s proposed weekly co-therapy session. Worcester’s OT expert, Ms. Boule, spoke credibly when she stated that she observed E.R.’s sensory issues to be of insufficient concern to warrant three weekly pull-out services, especially given her difficulties with transitions. However, Ms. Boule qualified her statement, noting that her knowledge of E.R. was based on her work with her in the home, not in a group setting. Accordingly, until Ms. Boule determines and the TEAM agrees, that in the group setting, E.R. does not require the three weekly pull out sessions, they shall be provided three times weekly. Second, as for E.R.’s speech/language therapy, Worcester is proposing the three weekly session recommended by Dr. Manea, albeit, one of those is conducted with the occupational or physical therapist. Ms. Cardaci was persuasive that, based on her experience working with E.R. using this co-therapy model, such model is not only appropriate, but arguably at times the preferable setting. Accordingly, Worcester’s use of one weekly speech/language co-therapy session is deemed appropriate. Third, Dr. Manea recommends thirty hours weekly of individualized ABA discrete trial training. Worcester asserts that its offer of twenty hours ABA training in a 1:1 setting and 20 hours in a small group setting complies with this recommendation. Such assertion is based on an understanding that Dr. Manea’s call for “individualized” sessions does not mean 1:1, but rather, includes individualized training in a group setting. (Halpin) Without Dr. Manea’s testimony clarifying this, it is unclear. However, I note Worcester’s IEP’s statement that “E.R. responds best in a 1:1 discrete trial setting where distractions are limited and positive reinforcement is used at high rates.” (S1 at page 2 of 8) I further note Worcester’s and Dr. Manea’s concern that E.R. has not been in an intensive school program. Based on this, I find that the recommended thirty hours of discrete trial training must be provided in a 1:1 setting unless Dr. Manea clarifies her report as allowing for a small group setting. Finally, Dr. Manea called for a summer program as intensive as the school year’s program. (S2) Again, given the intensity of E.R.’s needs and the fact that she has not been attending a full day program, Dr. Manea’s recommendation is credited as calling for necessary services. As such, Worcester’s Friday schedule must be supplemented so as to provide a full day of services, albeit not in the kindergarten class.

Worcester’s IEP, as modified by this decision, provides significantly more services and expertise than did Worcester’s previous IEP. The ABA therapist will be appropriately experienced and trained. Worcester will ensure sufficient behavioral expertise for oversight, for ensuring a specific plan addressing the self-injurious behaviors, and for developing a system for detecting, reporting, and responding to E.R.’s injuries. Further, Worcester is able to provide the amount of therapies deemed appropriate for E.R.. Finally, several staff members have significant expertise and experience, providing confidence that E.R. is in good hands. Ms. Dlugos is fully certified and has extensive experience at NECC, a private school for autistic children, as well as at Worcester’s program for autistic children. The speech and occupational therapists, Ms. Cardaci and Boule, have extensive experience and expertise working with autistic children, and have in fact, had positive experiences working with E.R. (Dlugos, Cardaci, Boule, S27) As such, I am persuaded that Worcester’s program will offer E.R. the educational services that she so desperately needs in the least restrictive setting. I note that according to Mother, E.R. benefited from her exposure to regular education peers at the YMCA (Tra.2 at 23); this Worcester program allows for integration, where appropriate. The 2004-2005 IEP noted the progress E.R. made in the integrated setting at the YMCA and called for mainstreamed lunch and music sessions (S12, S13). Although Worcester’s currently proposed IEP does not call for mainstreamed experiences, given E.R.’s successful experiences at the YMCA, Worcester should provide for mainstreaming opportunities as the teacher, behavioral specialist and the TEAM deem it appropriate for E.R.. Ms. Dlugos found the lunchroom to be over-stimulating for E.R., however, perhaps Worcester could address the appropriateness of integrating E.R. in gym since she likes activities in the gym and likes to swim. (S12, Duglos).

The parties dispute whether movement breaks are helpful to E.R.. It is clear from the record that this is not a simple issue and is one that may need to be addressed by the behavioral specialist, the occupational therapist, the teacher, and the TEAM, for a break may be helpful in calming her down, yet it may also be a diversion strategy not helpful to her learning. (Boule, Emerle) E.R.’s teacher apparently told Mother that movement breaks were not possible. (Mother, Tra. 2 at 57, P5-6) However, Amy Feingold, an occupational therapist, highly recommended after her 2004 evaluation “that E.R. be provided with movement breaks during the course of the day when she appears to be becoming agitated or anxious. It has been observed that E.R. is more organized and attentive after a movement break.” (P38) It is true that Ms. Boule questions the need for or the appropriateness of movement breaks. (Tra.2 at 212) However, Ms. Boule worked with E.R. only in the home and not in the more stimulating school environment. Accordingly, given Ms. Feingold’s findings, until the TEAM determines otherwise, the movement breaks shall be included in E.R.’s program as a possible strategy when she is agitated or anxious.

Finally, Mother is unpersuasive that Crossroads uses ABA strategies that are more appropriate for E.R.. Apparently, Crossroads applies a three-step compliance technique, however Crossroads acknowledged that the technique must be adapted to the skill level of the child. Thus, if it is clear that the verbal prompt or the modeling prompt will be ineffective, the therapist would use the physical prompt. Similarly with Worcester, the staff may more quickly use physical prompts, however, the staff clearly uses verbal and modeling prompts if appropriate. Such is stated in the IEP and described by Ms. Dlugos and Dr. Robinson. (Emerle, Dlugos, Robinson)

In order for Worcester’s staff to be able to successfully implement its IEP as modified, it is important that Worcester solicit input from Mother, but with this input, it is equally important that it be the staff with expertise and the TEAM (including Mother), not Mother alone, who makes the necessary decisions in designing and implementing E.R.’s educational program. In order that this occur, Worcester shall provide, and Mother shall work with, a person – either the outside consultant, or a staff person – who helps Mother understand her daughter’s educational needs, in particular, in regards to the use of ABA methodologies.

II. I find that Crossroads, being in a more restrictive setting, fails to offer E.R. FAPE in the least restrictive setting.

ORDER

Worcester shall immediately obtain an outside mutually agreed upon consultant, to assist in obtaining the appropriate staffing, and in addressing E.R.’s self-injurious behaviors, as detailed in this decision. Worcester shall further amend its May of 2005 – May of 2006 IEP to reflect the modifications called for in this decision.
.

By the Hearing Officer,

_______________________________

Date: June 10, 2005


1

Parent’s Exhibits are marked by the page number.


2

Initially, Parent sought reimbursement for home-based ABA therapies provided by Parent’s chosen service provider. However, Parent withdrew this issue during the hearing.


3

E. R. will turn six years old on June 15, 2005.


4

She attended five days per week for June 21, 2004 – July 9, 2004


5

She recommended 45-minute sessions, with the last ten minutes devoted to consulting parent and writing progress notes.


6

I further find that Mother has difficulty accepting staff’s insistence that Mother not interfere with the teacher’s work. However, I note that Mother did at times accept the teacher’s request to not interfere, both at the “Y” and with Ms. Dlugos. (Rogers, Dlugos)


7

Much was made about the issue as to whether E. R. was bruised at school or at home. It is unfortunate that the parties became so polarized over this issue. Clearly, E. R.’s profile includes self-injury, and clearly some of that happened at school as well as at home, with varying degrees of severity and bruising. Both teacher and parent acknowledge that. The extent of the injuries becomes irrelevant to this case in that, given the self-injurious behaviors, E. R. required and requires a behavioral plan to address this, and Worcester holds the responsibility for setting up a procedure for reporting all injuries, no matter how small. At the same time, the parties must recognize that injuries are not always immediately observable. (Note Mother’s testimony regarding E. R.’s bruised forehead. When she picked her up at school, she thought that E. R. had nothing more than a tiny bruise or an allergic reaction until she got home and discovered a bad bruise that takes a long time to heal. (Tra.1 at 37-38)) Unfortunately, this difficult subject led E. R.’s teacher to provide seemingly contradictory testimony as to whether E. R. bruised at school, testifying several times that it occurred only once when she had a bad day, yet testifying several times that self-injury occurred. She also stated that she would tell Mother about self-injury at school and that she “might see bruising on her elbow or something like that.” (Tra.2 at 82; also, see Tra.2 at 83, 84) Possibly, Ms. Dlugos was struggling with the lack of clarity as to how big a bruise must be in order to be considered an injury needing to be reported, and was further struggling with the fact that bruises do not always become immediately evident. As such, Ms. Dlugos could be confused as to whether she saw much injuring and bruising. Most probably, this dispute also led Mother to exaggerate the extent of the bruising. However, even if her view is correct, I am convinced that under the proposed IEP as modified by this decision, E. R.’s safety will be ensured.


8

Ms. Dlugos testified that E. R. attended 11 of the 23 days, however, the attendance report states only 6 absences, thus attending 17 of the 23 days. (S15)


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