COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Helen1 and Boston Public Schools
BSEA# 10-2292
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 13, 2010 at the Massachusetts Department of Elementary and Secondary Education in Malden, MA. The record was left open until June 7, 2010 for receipt of a final written document.
Those in attendance were:
Mother
Student
Godmother
Carmen Henriquez Lopez Interpreter, Catholic Charities
Julie Connors Classroom Teacher, Boston Public Schools (BPS)
Anne Minichino School Nurse, BPS
Matthew Tondorf Special Education Director, English High School, BPS
Elizabeth Kurlan Program Director, Litigation, BPS
Julie Muse-Fisher Attorney for BPS
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Pupil’s Exhibits labeled P-1 through P-7; Boston Public Schools’ exhibits labeled S-1 through S-15; and approximately 4 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Helen is an 18 year old young woman who resides with her mother in Boston, MA. Helen is enrolled in the Boston Public Schools (BPS) currently attending Boston English High School (BEH). Helen has always been a special education student educated under an Individual Education Plan (IEP). On October 29, 2009 Mother filed a Request for Hearing with the BSEA and a hearing date was scheduled for December 2, 2009. On November 5, 2009 BPS challenged the sufficiency of the hearing request. On November 10, 2009 the Hearing Officer ruled that the hearing request was insufficient because no information was submitted regarding either the nature of the problem or issues or the proposed resolution to said problems or issues. On November 20, 2009 Mother filed an Amended Hearing Request and a hearing date was scheduled for December 28, 2009. During a December 9, 2009 pre-hearing conference call (PHCC), a full pre-hearing conference was scheduled for December 15, 2009. On December 14, 2009 BPS requested a postponement of the December 28, 2009 hearing date. On December 14, 2009 BPS also filed a Motion To Stay BSEA Proceedings Pending Full Adjudication of Guardianship Determination. During the December 15, 2009 pre-hearing conference it was determined that Helen had turned 18 years of age in August 2009, well prior to Mother’s original filing of the hearing request on October 29, 2009. The Hearing Officer stayed all BSEA proceedings and ordered status reports in one month, which were duly submitted. On February 25, 2010 Mother filed executed court guardianship papers appointing her as Helen’s guardian. A PHCC was scheduled for March 12, 2010 at which time issues were clarified and a hearing date of May 11, 2010 was selected, later re-scheduled to May 13, 2010.
This appeal originally involved two issues. However, prior to beginning the hearing on May 13, 2010, BPS agreed to resolve one of the two issues, Mother consented, and the hearing went forward on the one remaining issue. The hearing took place on May 13, 2010 and testimony was concluded on that date. However, the hearing remained open for BPS to confirm, in writing, that the settled issue had been implemented. On May 27, 2010 BPS filed such written confirmation with the BSEA. The Hearing Officer then allowed ten days for Mother to respond if she challenged such written confirmation that the settlement was being implemented. Mother did not challenge BPS’ written confirmation and the record was closed on June 7, 2010.
ISSUE IN DISPUTE2
Does Helen require her own 1:1 aide when in school at BEH?
STATEMENT OF POSITONS
Parent’s position is that Helen requires her own 1:1 aide in her classroom and while in school at BEH in order to receive a free and appropriate public education (FAPE) in the least restrictive educational environment.
BPS’ position is that Helen’s program at BEH is such that she does not require her own 1:1 aide in her classroom or at BEH in order to receive FAPE in the least restrictive educational environment.
PROFILE OF STUDENT
Helen is an 18 year old young woman. She is diagnosed with multiple disabilities including: 1) Moderate Mental Retardation (MR); 2) Cerebral Dysfunction (CD); 3) Oppositional Defiant Disorder (ODD); and 4) Hyperactivity and Impulsivity (HI). Helen also has a metabolic disorder, Propionic acidemia, which requires careful management of her medical condition. Individuals with propionic acidemia cannot breakdown parts of proteins and some types of fats because they lack the enzyme responsible for doing so. The inability to breakdown such proteins and fats causes a buildup of dangerous acids and toxins which can cause damage to organs, seizures, and developmental delays. Helen takes several medications for her metabolic condition and must be fed a special formula through a gastric tube. Helen’s cognitive functioning and ability to manage everyday tasks of living are significantly compromised and are significantly below her age and grade level. Helen’s behaviors and impulse control are erratic and at times have a behavioral/manipulative component. Helen takes the medications Strattera and Clonadine to help her behavioral and impulse controls. (See P-2, 3, 4,; testimony Minichino.)
Cognitively, Helen is severely impaired. On psychoeducational testing administered by BPS in 2005 Helen, then 14 years old, scored at an age equivalent of 3 years 2 months in daily living skills; 2 years 7 months in socialization skills; and 2 years 4 months in gross motor skills (S-8). In May 2009 BPS administered the Reynolds Intellectual Assessment Scale (RIAS) to assess Helen’s current level of cognitive functioning. The verbal portion of the RIAS was attempted but could not be completed. On the non-verbal portion of the RIAS Helen’s non-verbal reasoning index and non-verbal memory index were both significantly below average. (See S-8.)
In her 2009 annual report Ms. Connors, Helen’s special education teacher for the last four years, reported that Helen’s academic skills fell within the kindergarten range and that Helen required classroom activities that were hands on, presented in a small group setting, and at a slow pace. Behaviorally, Helen had issues with physically touching, hitting, pinching, spitting, and scratching others. Ms. Connors reported that Helen required a highly structured classroom setting with a behavioral management component. (See P-5; S-6; testimony, Connors.)
PARENT’S PROPOSAL
Parent believes that Helen requires a 1:1 aide with her in her BEH classroom and during transitions to/from her classroom and in other classes in which she participates as well as to/from the bus at the beginning and end of the school day.
SCHOOL’S PROPOSED PROGRAM
BPS’ proposed placement for Helen and the program in which Helen currently participates is the substantially separate classroom (SSC) at BEH for students with multiple disabilities. This SSC can have a maximum of 8 students, but currently has only 5 students enrolled, including Helen. The SSC is staffed by a special education teacher and has two full time paraprofessionals. One student who is blind, wheelchair bound, and has severe cognitive delays has his own 1:1 aide. Ms. Connors, the SSC teacher has her masters degree in special education, is certified in special education and has been the teacher of the SSC for students with multiple disabilities since 2006. Ms. Minichino, the school nurse, has a masters of education degree in school nursing and has been the school nurse at BEH for the last 15 years.3 Ms. Minichino comes into Helen’s SSC twice per day to administer Helen’s tube feedings which takes about 45 minutes each time, one time in the morning and one time in the afternoon. Ms. Minichino also administer tube feeding to one other student in the SSC.
The teaching style employed in the SSC is concrete utilizing simple directions and small steps. There are pictures posted in the SSC for every activity of the day. A number of behavioral modifications are used to address maladaptive behaviors and Helen is rewarded with positive behavioral reinforcements. Most of the classroom instruction occurs on a 1:1 or 2:1 basis. Helen is always accompanied by the teacher or one of the paraprofessionals during any in-school transitions as well as the transition from bus/van to school in the mornings and from school to bus/van in the afternoons. Both of the professionals (Ms. Connors and Ms. Munichino) and both of the classroom paraprofessionals who work with Helen frequently and an on a daily basis are female. The paraprofessionals assist Helen in implementing her toileting, tooth brushing and self care programs. Helen receives adaptive physical education several times per week outside of the classroom, accompanied to and from adaptive physical education by a paraprofessional.
(See testimony, Connors; Munichino; Fondorf; S-4.)
FINDING AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Helen is a student with special education needs as defined by relevant state and federal statutes and regulations. The parties are in complete agreement regarding the nature and manifestations of Helen’s special education needs. The fundamental issue in dispute is specified under ISSUE IN DISPUTE , above.
Based upon the testimony and written documentation introduced into evidence and a review of the applicable law, I conclude that Helen does not require a 1:1 aide in her SSC at BEH in order to receive FAPE in the least restrictive education environment.
My analysis follows.
Pursuant to Schaffer v. Weast 126 S. Ct. 528 (2005), the United State 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 Helen requires her own 1:1 aide. Parent has failed to meet that burden.
Mother and Godmother were the only witnesses who testified that Helen requires her own 1:1 aide in school. While both Mother and Godmother have worked with Helen on a 1:1 basis at home, neither has observed Helen in her SSC at BEH.
Parent submitted three letters from the Floating Hospital for Children at Tufts Medical Center (Tufts). The first letter was dated December 11, 2009 written by Dr. Miller and Dr. Smith, developmental – behavioral pediatricians at Tufts (P-4). This letter concentrated upon consistent, positive behavioral management for Helen. Drs. Miller and Smith specifically recommended a 1:1 bus monitor for Helen and indicated that she “may need” a 1:1 behavioral aide in school. The second letter was from Dr. Llosa who is Helen’s pediatrician and was dated December 14, 2009 (P-3). Dr. Llosa primarily concentrated on Helen’s medical problems. Based upon his knowledge of Helen’s disability and for safety reasons, Dr. Llosa recommends an aide for Helen on the bus. The final letter dated April 21, 2010 is written by Dr. Miller and Smith (P-2). This letter dealt with Helen’s bus issues and soiling/staining of clothes and Helen’s needs for positive behavior interventions. Neither Dr. Llosa’s December 14, 2009 letter nor Dr. Miller/Smith’s April 21, 2010 letter made any mention of the necessity of a 1:1 aide in school for Helen. None of the three Dr’s letters recommended a 1:1 aide for Helen’s medical condition . (See P-2,3,4.)
Based upon the above, I find that Helen does not require her own 1:1 in her SSC at BEH in order to receive FAPE in the least restrictive educational environment. No educator has testified that Helen requires a 1:1 aide in her classroom and during her entire school day. Parent’s only professional evidence in support of her position is P-4 in which Drs. Miller and Smith, who have never observed Helen in her SSC at BEH (testimony Connors; Tondorf), state that she “may” need a 1:1 aide in class. Based upon the circumstances in this case, I do not find P-4 sufficient to support an for order a 1:1 aide for Helen in school.
The testimony and documentation demonstrate that Helen has made slow, steady progress commensurate with her cognitive abilities in her BPS placement. Given that one of the current five students has his own 1:1 aide the student to staff ratio is 4:3, and when Ms. Minichino is in the class for Helen’s and one other student’s tube feeding, the ratio is 4:4. Basically there is almost a 1:1 ratio in the SSC already. The evidence indicates that based upon a behavioral assessment done in June 2009 by BPS’ Citywide Behavioral Specialist (S-10), a new behavioral management plan was implemented during the 2009-2010 school year for Helen and that Helen’s behaviors have significantly improved during the school day and during transitions at the beginning and end of the school day. (See S-10; testimony, Connors; Tondorf; Minichino.)
Mother’s main focus in her testimony was that Helen sometimes returns home from school with her underwear (and occasionally outerwear) soiled and/or stained from bowel/bladder or menstruation accidents. Mother testified that she always includes extra clothes for Helen in her backpack in case of accidents during the school day. Ms. Connors, Mr. Torndorf and Ms. Minichino testified that sometimes Helen arrives at school soiled and is cleaned up by school staff; that if Helen has an accident during the school day it is handled by the teacher or one of the paraprofessionals; that paraprofessionals always assist Helen with her toileting;4 and that neither teacher, any paraprofessional or nurse would put Helen on the bus at the end of the day in a soiled condition. (See testimony, Connors, Minichino; Tondorf).
I believe Mother that she always sends Helen to school in a clean condition. I also believe the BPS’ witnesses that Helen’s toileting/accidents are cared for at school and that she is never put on school bus in a soiled condition. Therefore,
if Helen sometimes arrives at school in the morning soiled and sometimes arrives home in the afternoon soiled, such accidents must occur during her transportation between home/school and school/home. The 1:1 bus monitor for Helen, which is now being implemented per agreement of the parties, should resolve this question. If the accidents do occur during transport between home and school, the parties may wish to meet to discuss strategies for solving this issue.
ORDER
Helen does not require her own 1:1 aide during the school day at BEH.
By the Hearing Officer
Dated: July 7, 2010
________________________________
Raymond Oliver
1
Helen is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
The second issue originally in dispute was Mother’s request that BPS provide Helen a 1:1 aide/monitor on the bus/van to and from school. On the day of hearing BPS agreed to provide Helen with a 1:1 monitor on the bus. On May 27, 2010 BPS confirmed, in writing, that a 1:1 bus monitor for Helen had been on the afternoon bus since May 17, 2010; and that a 1:1 bus monitor for Helen in the morning began on May 26, 2010. (See P-15). As stated above, this issue was not litigated before the BSEA.
3
There is also another ½ time school nurse at BEH. (testimony, Minichino).
4
Ms. Minichino also assists Helen with toileting because she must periodically test Helen’s urine for a buildup of ketones due to her metabolic condition (testimony, Minichino).