Hank and Westborough Public Schools BSEA # 10-7439



<br /> Hank and Westborough Public Schools BSEA # 10-7439<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Hank1 and Westborough Public Schools

BSEA# 10-7493

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 these statutes.

A hearing in the above-entitled matter was held on May 24, 2011 at the Bureau of Special Education Appeals in Malden, MA; and on May 25 and June 13, 2011 at the offices of Catuogno Court Reporting in Worcester, MA. The record remained open for receipt of written transcripts and written final arguments until July 18, 2011.

Those in attendance for all or part of the hearing were:

Mother

Father

Uncle Via Speakerphone

Christine Robinson Educational Consultant

Susan Marakovitz Pediatric Psychologist

Maureen Ferguson Director of Special Education, Westborough Public Schools

Doris Whitworth Out of District Coordinator, Westborough Public Schools

Kelly Barrett Parent Trainer, Westborough Public Schools

Karen Bunton Special Education Teacher, Mercy Centre

Patricia Waterhouse Director, Mercy Centre

Matthew MacAvoy Attorney for Westborough Public Schools

Melissa Deutschmann Director of Special Education, Middleborough Public Schools

Kathleen Ciampoli Attorney for Middleborough Public Schools

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

The evidence consisted of Parent’s Exhibits labeled P-1 through P-34 excluding P-12B and P-19;2 Westborough Public Schools’ Exhibits labeled S-1 through S-25; and approximately 11 hours of oral testimony.

HISTORY/STATEMENT OF THE CASE

Hank is a 13 year old young man who lives primarily in Westborough, MA with his mother. Hank’s father lives in Middleborough. Parents share legal custody of Hank while Mother has physical custody. Hank spends time with both parents (testimony, Mother, Father).

Hank has lived in Westborough, MA since 2007. In March 2007 Westborough Public Schools (WPS) developed an Individual Education Plan (IEP) for Hank which placed him at the Mercy Centre, a Massachusetts Department of Elementary and Secondary Education (MDESE) approved private day school placement for special education students. Hank has attended Mercy Center (MC) since that time, i.e; for the remainder of the 2006-2007 school year and for the 2007-2008, 2008-2009, 2009-2010 and 2010-2011 school years. The last IEP for Hank accepted by Mother was the 2008-2009 IEP. Hank’s last agreed upon placement/placement pending appeal/stay put placement is the 2009-2010 IEP at MC accepted by Father. Neither the 2010-2011 IEP nor the 2011-2012 IEPs for Hank at MC have been accepted by either Mother or Father. (See testimony, Mother; Father; Ferguson; Bunton; P-15, 17, 18; S-1, 5, 15.)

In June 2010 Mother filed a Hearing Request with the BSEA (S-11) seeking a different private day school placement for Hank at the Kennedy-Donovan Center. WPS agreed to at least explore the possibility of other private day school placements for Hank and informational packets were sent to a number of such placements. Numerous pre-hearing conference calls took place. Hank was either not accepted/found inappropriate by such placements or such placements were found not to be appropriate for Hank. Parent then requested a residential placement for Hank. In September 2010 hearing dates were scheduled for January 2011 so that Parent could obtain update evaluations on Hank. In November 2010 Parent retained counsel who amended Parent’s Hearing Request to request residential placement rather than another day placement. In December 2010 there was a joint motion for postponement of the January hearing and the hearing was re-scheduled for February 2011. In late January 2011 another joint motion to postpone the February hearing was filed and hearing dates were scheduled for March 2011. In February 2011 Parents filed a Motion to Join the Department of Developmental Services (DDS)3 which was opposed by DDS, followed by another joint motion for postponement. On March 2, 2011 a motion session took place followed by final submissions regarding the joinder motion. On April 8, 2011 the Hearing Officer denied Parent’s Motion to Join DDS. On April 14, 2011 the MDESE found Middleborough Public Schools (MPS) jointly responsible with WPS for Hank’s education. On May 4, 2011 Parent filed a Motion to Join MPS to this BSEA appeal which was opposed by MPS. On May 10, 2011, the Hearing Officer granted Parent’s Motion to Join MPS. On May 13, 2011 the BSEA hearing was scheduled for May 24-25 and June 3, 2011. Also on May 13, 2011 Parent amended her Hearing Request to include Parent’s rejection of WPS’ newest IEP for Hank (covering the 2011-2012 school year) and specifically requesting placement at the Evergreen Center, a residential placement. On May 16, 2011, eight days prior to the hearing, Parent’s attorney filed a Notice of Withdrawal. Parent was offered the option of a postponement of the hearing in order to retain new counsel, but she refused any postponement and declared her intention to represent Hank’s position pro se. The hearing then took place on May 24-25 and June 3, 2011.

ISSUE IN DISPUTE

1. Does WPS’ proposed IEP for Hank covering April 15, 2011 to April 15, 2012 (P-11; S-1) appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?

2. If not, does Hank require a residential placement in order to receive FAPE?

3. If so, is Evergreen Center an appropriate residential placement for Hank?

STATEMENT OF POSTIONS

Parent’s position is that WPS’ proposed 2011-2012 IEP for Hank is inappropriate to address his special education needs so as to provide him FAPE in the least restrictive educational environment. Parent contends that Hank’s special education needs require a year round residential placement in order for him to receive FAPE in the least restrictive educational environment. Parent contends that Evergreen Center is an appropriate residential placement in which to address Hank’s special education needs.

WPS and MPS take the position that WPS’ proposed 2011-2012 IEP placing Hank in a private day school placement at MC is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. WPS/MPS contend that Hank does not require the restrictiveness of a year round residential placement in order to receive FAPE.

PROFILE OF THE STUDENT

Hank has a complex profile. He has been followed at Boston Medical Center’s Center for Human Genetics since 1999. Genetics testing in 2010 confirmed a diagnosis of Angelman Syndrome:

Angelman syndrome (AS) is a rare genetic disorder characterized by developmental delay (especially in expressive language), gait impairment, and unique behavioral characteristics, such as frequent laughing, smiling, and excitability. Language impairment is usually severe. Appropriate use of even one or two words in a consistent manner is rare. Receptive language skills are always more advanced than expressive language skills. Most older children and adults with AS are able to communicate by pointing and using gestures and by using communication boards. Effective fluent use of sign language does not typically occur. Hypermotoric (hyperactive) behavior and a short attention span are frequently seen. Some of [Hank’s] behaviors, such as drooling and excessive chewing, are also common in AS.

A full range of educational training and enrichment programs should be available. Children with gait instability like [Hank] benefit from physical therapy. Occupational therapy may help improve fine motor and oral-motor control. Speech therapy is essential and should focus on nonverbal methods of communication. Augmentative communication aids such as picture cards or communication boards should be used wherever possible. Special physical provisions in the classroom, along with teacher aides or assistant, may be needed for effective class integration. Individualization and flexibility in the school are important educational strategies. (see P-1; S-14.)

Hank has been extensively evaluated. He received a multi-disciplinary evaluation at Children’s Hospital (Children’s) in September and November 2008 (P-13, 14) which was followed by a Children’s mental health and developmental disabilities consultation in February 2009 (P-11; S-19); a Children’s speech therapy-clinical feeding evaluation in march 2009 (P-6; S-18); a Children’s occupational evaluation in March 2009 (P-9); and a Children’s developmental follow-up also in March 2009 (P-10; S-17). In April 2009 a Functional Behavioral Assessment was performed by WPS’ Kim Tynan, a Board Certified Behavioral Analyst (BCBA). (See P-8; S-16.) In May 2009 an Assistive Technology and Augmentative Communication Assessment was performed at the Pace Assistive Technology Center, a program of Cotting School (P-7; S-20). On October 10, 2010 Hank received an ophthalmic evaluation at Children’s (P-6). Also in October 2010 Hank received a home assessment by WPS’ Ms. Tynan (P-5; S-9). Finally, in November 2010 Hank received a neuropsychological evaluation and educational consultation from Susan Marakovitz, Ph.D., of the Integrated Center for Child Development in Newton (P-4).
(Refer to the above evaluations for specific and detailed findings and recommendations.)

All of the developmental/medical/psychological/neuropsychological evaluations have found Hank to be functioning in the moderate to severe range of mental retardation.

On the Performance Section of the Stanford-Binet Intelligence Test-Fifth Edition (SB-5) administered by Children’s in 2008, Hank received a score of 43, with significant cognitive and developmental delays and severe delays in receptive and particularly expressive language. (See P-14.)

The most recent evaluation of Hank was the neuropsychological evaluation performed by Dr. Marakovitz in November 2010 (P-4). On the Performance Section of the SB-5, Hank’s non-verbal IQ was 42, consistent with the prior Children’s evaluation. Virtually all of Hank’s scores on the various testing instruments utilized – language, communications, comprehension, graphomotor, fine motor, social-emotional skills, coping skills and activities of daily living (ADL) skills, fall within the early two year old level. (See P-4 for complete breakdown.) Dr. Marakovitz noted:

Hank’s neuropsychological presentation is unique and best interpreted within the context of his genetic condition of Angelman Syndrome. He exhibits a pattern of global delays in intellectual potential and other major domains of functioning consistent with a classification of moderate to severe Mental Retardation. [Hank’s] nonverbal intellect, fine and visual-motor coordinator and daily living skills cluster at the 2 year level. He exhibits a relative strength on some visual perceptual tasks without a motor component and gestural knowledge. His expressive language and functional communication skills as well as his coping capacities in these areas are not as well – developed as in other aspects of his neuropsychological profile (P-4, p 21-22).

PARENT’S PROPOSED PROGRAM

Parent proposes that WPS place Hank as a residential student at Evergreen Center (EC) in Milford, Ma. EC serves a number of different populations including developmentally disabled, language impaired, mental retardation, dual diagnoses, and multiple disabilities. EC’s Center for Basic Skills is designed to teach functional daily living skills to individuals with disabilities. The program focuses on teaching pre-academic and early academic skills, functional communication, meal-time skills, toileting skills and ADL skills. Classroom education is provided through individual and small group instruction which emphasizes functional communication, self preservation skills, community integration, prevocational and vocational training and adaptive social behavior. Student to staff ratio is 2:1. Speech-language therapy, occupational therapy, physical therapy and adaptive physical education are provided.

EC itself (that is, the school and day classes) is in Milford, MA, but the residential component comprises thirteen group homes in neighboring towns to enable students to learn to achieve independence in integrated community settings. Students are bused between the school campus and the various group homes, all of which are within a twenty minute drive from the Milford campus. In each group home 7-8 students live together based upon age, functioning levels, communication abilities, behaviors, and level of assistance required. Students learn increased independence in self care/ADL skills, domestic skills and leisure skills. Two staff are on duty overnight in each group home.
(See testimony, Robinson; Mother; P-3)

SCHOOL’S PROPOSED PROGRAM

WPS’ 2011-2012 IEP proposes that Hank continue to be educated at MC, an MDESE approved, special education private day school located in Worcester, MA. Under this IEP, during the academic year, Hank would receive approximately 4 hours per day of functional academics in his special education classrooms. He would also receive the following therapies: 1) communication therapy for 30 minutes, 3 times per week from the speech-language therapist; 2) occupational therapy for 30 minutes, 3 times per week from the occupational therapist, 3) physical therapy for 30 minutes, 3 times per week from the physical therapist; 4) music therapy for 30 minutes, twice per week from the music therapist; 5) and adaptive physical education for 30 minutes, three time per week from his special education teacher.

During the five week extended year/summer program, Hank would receive 5 ½ hours per day of services from the special education teacher (s); summer speech-language services from the speech-language pathologist twice per week for 30 minutes; summer occupational therapy services from the occupational therapist twice per week from 30 minutes; and a 1:1 summer aide at all times. Recreational therapy/swimming is also built into the summer school day.

There is a significant amount of consultation built into Hank’s proposed IEP. For Mother, 3 hours per week of consultation/parent training services in the home, by a BCBA is proposed, along with 2 hours per week in the home by a trained paraprofessional. For Father,2 hours per month of consultation/parent training in the home from the BCBA is proposed, along with a 1 hour per month consultation in the MC school from Hank’s MC case manager. There is also a 1 hour consultation per month between the MC staff who work with Hank and the BCBA Parent trainer. In addition the IEP proposes a 1 hour monthly consultation between the MC staff working with Hank and each of the following therapists/specialists: communication therapist, occupational therapy, physical therapist; clinical psychologist; and the assistive technology specialist.
(See P-15; S-1; testimony, Bunton; Barrett; Ferguon; Whitworth.)

FINGINGS AND CONCLUSIONS

It is undisputed by the Parties and confirmed by the evidence presented that Hank is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.

Pursuant to Schaffer v. Weast 126 S.Ct. 528 (2005), the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case, Parent bears the burden of proof in demonstrating that WPS’ proposed 2011-2012 IEP is inappropriate to address Hank’s special education needs so as to provide him with FAPE in the least educational environment; that Hank requires a residential education placement in order to receive FAPE; and that EC would provide Hank FAPE. Based upon three days of oral testimony, the written documentation introduced into evidence, and a review of applicable law, I conclude that Parent has not met her burden of proof. I conclude that WPS’ proposed 2011-2012 IEP is appropriate to address Hank’s special education needs so as to provide him FAPE, and does so in the least restrictive education environment4 ; that it is a comprehensive, specific, and highly detailed document in articulating Hank’s functioning levels, and objectives.5 Hank’s behavioral intervention plan has been reviewed and/or revised every year since his enrollment at MC in 2007 (P-15; S-8). I further find that WPS/MC has been responsive and flexible regarding Parents’ suggestions and concerns and has communicated with/responded to Parents in a timely manner. (See testimony, Bunton; Ferguson; Mother; Father.)

My analysis follows.

Based upon the extensive and comprehensive evaluations that Hank has received over the years, it is clear that Hank’s intellectual potential/cognition is significantly impaired, placing him in the moderate to severe range of mental retardation. This global impairment extends to Hank’s receptive language skills and particularly his speech/language/communication, motor, and ADL skills, as well as his attention. (See BRIEF PROFILE OF STUDENT, above.) In sum, as a result of Hank’s AS, at age 13 he functions in the 2 year old range. Mother cites a lack of perceived progress since Hank has been at MC. However, progress, in order to be accurately considered, must be viewed within the context of Hank’s significant intellectual impairment and severe disabilities.

This case is unusual in that Hank has had the same special education teacher at MC since his placement there (in March 2007) through June 2010. In September 2010 this teacher, Karen Bunton, became the Associate Director of MC, but remained in Hank’s classroom until November 2010 and remains Hank’s case manager. Thus, Ms. Bunton is in the unique position of having seen Hank on a daily basis in an educational setting for almost 4 years. Ms. Bunton testified at great length regarding how Hank presented when he first arrived at MC, and how he has progressed over the last 4 years in all areas including self
regulation/compliance skills, functional cognitive skills, functional communication skills, human awareness skills, personal development/ADL skills, interpersonal skills, and eating skills/therapeutic lunch program. (See testimony, Bunton regarding progress made in all of the above areas; S-6, 7.) Data collection sheets, which record Hank’s progress on each of his IEP goals, are collected weekly, summarized on spreadsheets and graphed and reported on a quarterly basis via Hank’s progress reports (Testimony, Bunton).

Given her extensive experience working with Hank in an educational setting, and thus her unique perspective, I find Ms. Bunton to be an exceptionally credible witness. She impressed me not only with her professional competence and detailed knowledge of Hank, but also with her obvious commitment to him. In response to a question regarding the significant reduction of Hank’s maladaptive/aggressive behaviors, Ms. Bunton testified as follows:

Q. Okay. So, overall, you feel like he’s really made progress in this area.

A. I have been thrilled. It’s been—you know, as special education teacher, it’s – you don’t often get these kinds of opportunities. You know you work very hard, especially when you work with students who have a lot of behaviors and a lot of cognitive deficits. And, you know, you often measure your successes strategically, meaning like – you know, things we get very excited about the average person would likely not, you know, get the same pleasure from, in terms of how we define progress. And to have an opportunity to watch someone like [Hank], who came with so many needs and came with such a high level of behaviors, and very serious behaviors, to be able to have had the opportunity in what I really consider to be remarkably short period of time, to watch him come from where he was to where he is now has been – it’s the kind of stuff that makes you want to keep teaching. You know, it’s been – it’s been amazing. It’s –

I’m proud of him because this isn’t just – it isn’t just a matter of what everybody else has done for [Hank]. [Hank] gets to own this too. He – he grew up. He would – made himself – through our structure, he made himself open to learning the things we were trying to teach him. He made himself available to it, and he gets – he gets to own this progress too.

Testimony Bunton, Transcript Day #2 p139-140.

Similarly, in response to a question regarding why she was continuing to advocate for Hank attending MC, Ms. Bunton responded as follows:

A. I’m advocating for him to attend Mercy Centre because his progress is not merely just anecdotal. It’s not merely just people saying. “He looks good. He looks like he’s done better.” It’s data-based….

A. You know, it’s date that’s been collected. It’s not somebody’s opinion. It’s data. And it’s information that tells us the story: It tells us how often he’s doing something, how often he’s not doing something. It tells us if he’s progressing, if he’s not progressing. The data also tells us what his need areas still are. And I believe, all that being said, the data clearly shows he is progressing nicely, which – which completely acknowledges that he’s been responsive to the approaches, he’s been responsive to the strategies, he’s been responsive to the support of the therapies. And I don’t see any evidence, through the data, that suggest that that is going to stop.

Testimony Bunton Transcript Day #2 p. 227-228.

Hank’s progress has also been observed by family members not involved in this BSEA hearing. Ms. Bunton testified that on 2 separate occasions Hank’s paternal grandmother called her to thank her for how well Hank was doing. On the most recent phone call, Ms. Bunton described the grandmother as quite emotional, stating:

I’ve just recently seen [Hank]. I took [Hank] out to eat and we went to see a movie. If anybody had told me a few years back that I would be able to do this with [Hank] I would have told them they were crazy. I can’t – you know, and she went on to express her gratitude for what, you know, we’ve done with [Hank] and our work with [Hank] and how she’s being able to enjoy him, as his grandmother, because of that.

Testimony Bunton Transcript, Day #2 P. 161-162.

Indeed, given Hank’s, progress at MC it was recommended at the team meeting in April 2011 (which promulgated the IEP at issue in the instant appeal) that Hank advance to a higher level class at MC:

Q. Okay, I think, jumping forward a little bit, it then states that due to the continuation of improvement at school, you actually recommended that [Hank] move up to the net level, or class, at the Mercy Centre, Did you make that recommendation at the team meeting?

A. We actually had made the recommendation, if I recall correctly, at the meeting when Dr. Marakovitz attended.

Q. Okay.

A. We had actually at that time, in the course of discussion around his current performance, had actually visited the conversation at that time, I believe, at that meeting.

Q. And why were you recommending that? And what were you recommending, specifically?

A. Specifically, what we were recommending, the way our groupings work at Mercy Centre is our students are grouped by age, so the youngest student and the oldest student must be within 48 mouths of age. And that’s in compliance with the law.

And so with [Hank} being thirteen years old, there’s actually two groupings that he, agewise, can be in. He’s been in the current grouping that he’s been in now since beginning at Mercy Centre. And, really, up until this year we felt that grouping was quite appropriate for him in terms of the students were all working on many of the same skills; they were working on many of the same approaches; they had many shared needs; and they had many strategies that were similar, in that it functionally worked very nicely for [Hank].

With these continued improvements, and particularly so with that we’ve seen from him this year, we felt like he wasn’t deriving sort of those same benefits from remaining with those group of students, that he’s actually surpassed those students in terms of his ability regarding his behaviors. He’s surpassed those students with regards to his ability to sit and attend during instruction.

And so we actually came into the team meeting and recommended him moving up to the next grouping, which offers an older group of students, still within the 48-month range, but because it’s an older group of students, we thought there was a nice opportunity both for some peer modeling as well as the opportunity for [Hank] to get some additional support in terms of more natural communication opportunities with his peers.

Testimony Bunton, Transcript Day #2 P. 207-209.

In response to Parent’s September 2010 request for residential placement and concerns regarding Hank’s behaviors in the home setting, the team reconvened and arranged for WPS’ BCBA, Ms. Tynan, to conduct a home assessment (S-4). That assessment was completed in late October 2010, with Ms. Tynan recommending Parent training in the home for a number of reasons. (See P-5; S-9.) The team reconvened in December 2010 and proposed 2 hours per week of Parent training in the home by a BCBA, which Mother then accepted. In January 2011, Kelly Barrett, a BCBA with a masters degree in education and experience working in residential settings, began working with Mother and Hank twice a week in the evenings. Ms. Barrett developed a home behavior support plan, in conjunction with Ms. Tynan, modeled after strategies used effectively with Hank at MC (See P-15(e).) Ms. Barrett has also observed Hank at MC. Ms. Barrett testified regarding the significant progress Hank has made in his showering routine, as well as progress in his tooth brushing and dressing/undressing routines. Ms. Barrett has also begun to work with more frequent utilization of the SL with Hank in the home and in the community. At the April 2011 Team meeting, Ms. Barrett reported that Hank had made progress in all targeted areas, but that he required work on his morning routines. The team then increased Ms. Barrett’s Parent training time with Mother to 3 hours per week, including the summer, and adding 2 hours per week by a paraprofessional to be trained by Ms. Barrett (being advertised); and 2 hours of Parent training a month in Father’s home. Although Mother rejected the 2011-2012 IEP, she has accepted the continuing and increased Parent training by Ms. Barrett as well as the additional services. (See testimony Barrett regarding Hank’s progress and the techniques/strategies Ms. Barrett is using which are effective with Hank; see also testimony, Mother; P-15; S-1, 6) I find this to be an illustrative example of the way WPS and MC have responsively worked with Parents to address Hank’s needs.

In reaching my conclusion that the record does not support the educational need for residential programming, I further note the September 30, 2010 letter from Jeff Milunsky, M.D., Director of Clinical Genetics at Boston Medical Center, confirming Hank’s diagnosis of AS. (P-1; S-16) (The two substantive paragraphs of that letter are quoted in their entirety under BREIF PROFILE OF STUDENT, above). After describing the disabilities/manifestations of AS as they relate to Hank, Dr. Milunsky describes the education and therapies which therefore should be made available to Hank. Nowhere in P-1/S-16 does Dr. Milunsky expressly state or imply that students with AS generally, or Hank in particular, require residential educational placements.

I acknowledge Dr. Marakovitz’s testimony and written recommendation for a residential placement for Hank (testimony Dr. Marakovitz; P-4). However, I note that she saw Hank on 2 occasions for 2 hours each, in her office, in a testing situation. She did not observe Hank in his school placement; she did not observe Hank in his home. She has no credentials in the field of education. Therefore, while I found her to be a credible witness, I am unable to give substantial weight to her residential recommendation, given the contrary testimony of Ms. Bunton who has educational credentials and has worked with Hank for 4 hours a day over an almost 4 year period in the classroom.

While not outcome determinative, I note that I find several of Mother’s actions to be inconsistent. On the one hand since September 2010 Mother’s position has been that Hank requires the intensity of a residential year round placement. However, just several months earlier Mother rejected WPS’ offered 2010 summer program at MC (where he would have been in a 5 day per week specialized program, receiving special education, related services and recreational activities with his MC teachers and therapists, and a 1:1 aide), and instead placed Hank at Camp Arrowhead, a recreational day camp for special education students. (I note that at Camp Arrowhead the supervisor was a college student, and the counselors were high school students with only a few days of training. None of the staff had an awareness of Hank’s IEP or behavioral intervention plan.) (Refer to testimony, Mother.) Not surprisingly, Hank had several behavioral incidents over the 2010 summer and in September 2010, Parent altered her hearing request to seek a residential placement. Similarly, while contending that Hank’s behaviors were difficult to manage in the home, Parents had (until December 2010), refused WPS/MC offers to provide Parent training in the home since 2009. (See testimony, Mother; Father; Bunton; Barrett; S-12.)

Finally, a fair amount of testimony involved Hank’s use of the Springboard Lite (SL) device, an augmentative communication device which was recommended by the PACE Assistive Technology and Augmentative Communications Assessment received in May 2009 (P-7; S-20). The SL was purchased and programmed and Hank began using it in early 2010. Although the testimony indicated that Hank’s use of the SL apparently has varied based upon his location (MC, Mother’s home or Father’s home), with Hank regularly using the SL at MC but only occasionally at Mother’s and Father’s home, the testimony also demonstrated that the SL has helped Hank progress in expressive communication and allows MC personnel to more accurately understand what Hank is understanding. (See testimony Bunton; Robinson; Mother; Father.) Given Hank’s AS and extremely limited expressive ability, I find that the SL is a major improvement over a communication board and will increase in value to Hank as he becomes more comfortable with its use and slowly learns more about the SL’s additional functions and capabilities.

Based upon the totality of testimony and documentation presented, I conclude that Hank has made progress commensurate with his abilities in his MC placement. I conclude that WPS’ proposed 2011-2012 IEP provides Hank with FAPE in the least restrictive educational environment, consistent with the mandates of state and federal special education law. Although I am not unsympathetic to Parent’s position, I am unable to conclude that Hank requires the most restrictive of educational placements, i.e., a residential school, in order to received FAPE at this time.

ORDER

WPS’ proposed IEP for Hank for 2011-2012 is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment.

By the Hearing Officer

________________________

Dated: August 5, 2011

Raymond Oliver


1

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


2

Parent’s P-A and P-B Exhibits have been consolidated into one numbering system with the P-B Exhibits following the P-A Exhibits.


3

Hank meets DDS children’s eligibility criteria and receives home services from DDS (testimony Mother; P-21; S-10).


4

Although not specifically before me, I find the same to be true for WPS’ proposed 2010-2011and 2009-2010 IEPs (P-17, S-5; P-18; S-16).


5

Additionally, MC has prepared specific treatment plans for Hank in speech/language/communication; occupational therapy; physical therapy and music-therapy (P-15; S-22).


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