In Re: Khaled1 and Northampton Public Schools
BSEA 07-2902
RULING ON PARENTS’ MOTION FOR INTERIM PLACEMENT
This matter comes before the Hearing Officer on the Motion of the Parents for an Interim Placement, filed on March 28, 2010, and the School’s opposition thereto. A hearing was held on the Motion on May 21 and July 9, 2010 at the Springfield Offices of Catuogno Reporting Services. By agreement, each party presented the testimony of one witness in support of its position. In addition, the Parents submitted exhibits labeled P-1 through P-12 and the School submitted exhibits labeled S-1 through S-20.
This matter has been pending before the BSEA for several years. At the parties’ joint request no administrative hearing has been held to date. Instead the parties have continued to work together, with the Hearing Officer’s supervision, encouragement, and occasional intervention, to craft an appropriate special education program for a young student with complex, unique learning needs. To their credit, despite significant logistical, resource, communication and implementation challenges, the parties have had substantial success in moving the Student from a home-based to a public school-based educational program. They have demonstrated commitment and creativity in adapting to a fluctuating landscape of needs, preferences and recommendations. They find themselves now at a pivotal point for the Student as he moves into his middle elementary school years. More than any real disagreement between the parties about Khaled’s educational services or placement, it is this maturation of the planning and negotiation processes that prompt their request for concrete direction from the BSEA at this time.
Issue
Whether the Parents are entitled to public funding of an interim home-based special education program they developed for Khaled after they withdrew him from school on March 29, 2010?
Summary of the Evidence
Although there is a wealth of contextual historical and evaluative information in the files of this ongoing matter, the facts pertinent to resolution of the issue of Northampton’s responsibility for funding a parentally designed and provided “interim educational placement” to Khaled are not voluminous:
1. Khaled is a nine year old with at least average cognitive potential who is assigned to a 3 rd grade classroom in the Northampton Public Schools. Khaled has a complex set of interlocking disabilities, including: quadriplegia due to Cerebral Palsy, mixed tone type; Cortical Vision Impairment; Apraxia and Dysarthria. He has grossly age appropriate receptive spoken language skills. Due to physical limitations on voice production Khaled is learning to use a variety of augmentative communication devices for expressive language. He is dependent on the assistance of others for all self-care needs, including eating. He uses an adaptive wheelchair in and around the school. Khaled is capable of following and benefitting from regular third grade curriculum content. He requires assistive technology as well as physical, timing, presentation and production modifications to access the curriculum. Khaled benefits from exposure to and integration with his third grade peers (ICCD Evaluation, 7/09).
2. There has never been a fully accepted Individualized Education Plan for Khaled. Nonetheless the parties have developed and implemented accepted portions of IEPs for the 2007-2008 and 2008-2009 school years. Khaled’s program for the 2009-2010 school year was a “stay put” placement referring back to the 2008-2009 school year (S-1, S-2). Accordingly Khaled was assigned a full time one-to-one certified special education teacher and an individual aide. A separate learning space was created for him by using movable walls/dividers in a small corner of the regular 3 rd grade classroom. The separate space was used when Khaled became overwhelmed with the demands of the regular 3 rd grade, or when he needed a quieter environment for parallel individualized instruction. Khaled also participated in some academic instruction, practice, therapies and lunch in a small group of other children with disabilities in a substantially separate classroom at the opposite end of the hall from the 3 rd grade class. Khaled received related services in both pull out and integrated settings: 2 hours per week (four 30 minute sessions) of speech-language therapy; 2 hours per week of physical therapy; 1 hour per week of orientation and mobility training with the teacher of the visually impaired; 75 minutes per week of occupational therapy; as well as augmentative communication and assistive technology consultations. Khaled was absent frequently during the 2009-2010 school year due to illness and appointments for outside evaluations and therapies (Mahony; S-1, S-2; Parent; see also S-11, S-12, S-13, S-14, S-15, S-16, S-17, S-18, S-19).
3. Katherine Mahony, who has masters level training in intensive special needs, organizational development and guidance, is designated as the coordinator and inclusion facilitator for Khaled’s program. In that role since 2007 she organizes the provider meetings and schedules, ensures the availability of appropriate equipment, maintains communication with the parent and school staff, and oversees implementation of Khaled’s school-based program. Ms. Mahony testified that Khaled’s program was originally designed as a way to move his intensive therapies out of the home into a community setting where he could have more exposure to peers and access to an age appropriate academic curriculum. As the therapists, teachers and peers have gotten to know Khaled, and as he has grown and developed over the years, the program evolved to include a more assistive technology and augmentative communication orientation, in line with the then current recommendations of outside evaluators. Currently the Team is responding to the most recent evaluations, conducted during 2009, by concentrating on ways to improve Khaled’s literacy skills (Mahony).
During the 2009-2010 school year Ms. Mahony was responsible for maintaining communication with the Parent. She maintained the WIKI pages to which all Khaled’s Team members had access. She testified that she communicated with the Parent about Khaled’s program a minimum of several times a week, by phone, email, or WIKI. She communicated with Khaled’s provider team members several times a week. She also coordinated contacts with the outside neuropsychological evaluators and classroom observers (Mahony; S-8, S-9, S-10, S-20).
4. The Team received one component of an independent evaluation conducted by the Integrated Center for Child Development (“ICCD”), the neuropsychological evaluation conducted by Dr. Rafael Castro, just before the start of the 2009-2010 school year. The other component, classroom observations and recommendations, was conducted by Kathy Rielly over the the course of the fall 2009. The final report was not available to the Team until the end of January 2010.
Due to Khaled’s withdrawal from school and the pending hearing process the Team has not met to consider the results of that independent evaluation. Ms. Mahony testified, however, that Khaled’s service providers were pleased with the expertise of and the suggestions made by the ICCD evaluators and did not disagree with any of their substantive educational recommendations (Mahony).
5. Ms. Mahony testified that Khaled’s 2009-2010 special education program incorporated the recommendations of all the evaluators and the service providers who had worked with Khaled while he was a student in Northampton. She further testified that the Team did its best to meet each parental request presented, even when the requests were conflicting or confusing. For one example, the Parent and the occupational therapist agree that Khaled needs a specialized feeding program both for safety and to develop appropriate oral-motor skills. This program, best implemented individually or in a very small group, can take up to the time allotted for 2 school lunch periods. The Parent and teachers also believe that Khaled can benefit from integration into the social environment of the regular 3 rd grade lunch period. Khaled cannot do both on the same day. Ms. Mahony acknowledged that it is very difficult to meet all of Khaled’s therapeutic and educational programming needs in the time available in one school day (Mahony, see also Parent).
Nevertheless, Ms. Mahony testified, all accepted components of Khaled’s special education program had been delivered to him while he was attending the Northampton Public Schools during the 2009-2010 school year. She noted that some of the assistive technology/augmentative communication consultation to the Team was delayed due to the death in November 2009 of the Team member who had been providing that service, but that the AAT/AG consultation resumed by February 2010.
6. The Parent testified that she withdrew Khaled from the public school on March 29, 2010 because it was “not safe” for him. She testified that she was dissatisfied with the focus and vision of the school program. She claimed that Khaled’s special education program was not individualized, was poorly organized, and lacked a focus on social pragmatics. In her opinion, Khaled had made minimal progress in the acquisition of effective communication and literacy skills and needed a program that concentrated on systematic instruction in literacy and intensive use of appropriate communication technology. She stated that without that type of educational emphasis Khaled would not have the skills necessary to support a transition to the Perkins School as planned (Parent; but see S-4-7). The Parent maintained that communication between the Parents and the school was poor and infrequent (Parent; S-8,9,10).
7. The Parent testified that she developed a Home Education Program for Khaled which emphasizes the development of reading skills and increasing generative language. The Parent is the teacher and allots 2 ½ hours per day for “school”. She teaches 3 guided reading activities per week and expects Khaled to read independently each day. Khaled sees a speech-language therapist two hours per week to support training in and development of his use of augmentative communication devices as well as to improve his conversational skills. He receives four hours per week of physical therapy to address mobility. He also travels about 2 hours each way weekly for consultation with ICCD consultant Kathy Rielly and/or an augmentative communication specialist at Boston Children’s Hospital. During the spring 2010, Khaled successfully attended an event and a cooking class with typical peers at a community center. The Parent uses a behavior program involving tickets to reduce episodes of whining and reactive behaviors. The Parent acknowledged that the Interim Home Program is a “work in progress”, has had technology hardware and programming glitches similar to those experienced in the public school program, and does not provide for daily access to age peers. The Parent has not kept any data on her interventions or on Khaled’s progress (Parent, P-1, P-4, P-6, P-7).
8. The Parents are seeking reimbursement for all out-of-pocket expenses, including transportation to related services and software installed on home equipment, which they have incurred in connection with providing home-based special education services to Khaled between the time of his withdrawal from school on March 29, 2010 and the end of the school year in June 2010 (P-10, P-11, P-12).
9. The Parties have agreed on appropriate services through the summer 2010. They also agree that Khaled could be appropriately educated at the Perkins School and are awaiting enrollment confirmation for the 2010-2011 school year (Administrative Record).
Legal Framework
The legal standard for evaluating a parental request for public funding of an “interim educational program” developed and delivered by the Parent at home is indistinguishable from that applied to a parental request for public funding of an established alternate school. The Parents have the burden of proving by a preponderance of persuasive evidence, that the IEP as developed and implemented by the school is not reasonably calculated to ensure that Khaled receives a free, appropriate public education. Schaffer v. Weast , 546 U.S. 49, 126 S.Ct. 528 (2005). If the parents here prove that the special education services available to their son do not meet IDEA 2004 standards, they may be entitled as a matter of equity to retroactive reimbursement of monies they expended to provide substitute appropriate special education to him. 20 U.S.C. § 1412 (a)(19)(c)(ii). School Committee of Burlington v. Department of Education , 471 U.S. 559 (1985). Roland v. Concord School Committee , 910 F 2d 983 (1 st Cir. 1990).
Findings
After carefully considering all the evidence produced in support of the Parents’ Motion, and the thoughtful arguments of counsel for both parties, it is my determination that the Parents have not met the threshold requirement. They have not carried their burden of proving that the IEP developed for Khaled, and being implemented by Northampton throughout the 2009-2010 school year, is in any way inappropriate for him. A comparison of the educational recommendations made by various evaluators and service providers and the IEP document shows that the recommended services, accommodations and strategies are incorporated into Khaled’s educational plan (Cf. S-11-19 and S-3). In addition, there is no evidence in this record that the accepted portions of that plan were not in fact being delivered to Khaled. The Parents’ objections to Khaled’s 2009-2010 special education program center on the difficulty developing and implementing appropriate augmentative communication devices and strategies, as well as the difficulty of improving Khaled’s access to literary skills, both elements that continue to present significant challenges in the home program provided to Khaled after his withdrawal from school.
I am persuaded by the testimony of Ms. Mahony, whom I found to be frank, credible, sympathetic and knowledgeable, that the service provider Team for Khaled is composed of dedicated, creative experts in their fields who communicate well with each other and work together to create and deliver a flexible, responsive and intensive therapeutically-based special education program in the most integrated setting possible, as recommended by all evaluators in the record. There is little credible evidence in this record to the contrary. The Parent’s substantive claims that Khaled is not “safe” in the school-based program, that the school-based team failed to respond to her concerns or communicate meaningfully with her, that Khaled’s program is disorganized, that Khaled is isolated from his peers, that he experienced regression in his communication skills over the course of the 2008-2010 school years and that, as a result, he lacks the skills necessary to transition to a specialized residential school, similarly are not supported by credible evidence in the record. Furthermore, there is insubstantial evidence of lack of parent-school communication, of school failure to implement accepted portions of IEPs, or of school failure to meet IDEA timelines, as claimed by the Parents. No procedural violations which might warrant equitable relief have been proved by the Parents.
Even viewing all the proferred evidence in the light most favorable to the Parents, and drawing all permissible inferences in their favor, I find that as the Parents have failed to demonstrate by a preponderance of the evidence any substantive or procedural deficiency in the special education program from which they withdrew Khaled, and, as that program remained available to Khaled and appropriate for him throughout the spring 2010, they are not entitled to public funding of an alternate home education program.
Order
The Parents’ Motion for an Interim Placement is DENIED.
By the Hearing Officer
___________________________
Dated: September 1, 2010
1
“Khaled” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the Public.