Ludlow Public Schools – BSEA #s09-2236 and 09-2395



<br /> Ludlow Public Schools – BSEA #s09-2236 and 09-2395<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Ludlow Public Schools

BSEA #09-2368, #09-2395

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.; as amended by P.L. 108-4461 ); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.

This case involves a six-year-old child with multiple disabilities, including pervasive, global developmental delays, epilepsy, Childhood Disintegrative Disorder and autism. At all relevant times, the Student has been placed in a substantially separate classroom within the Ludlow Public Schools. Parent and the Ludlow Public Schools filed reciprocal hearing requests, which the BSEA consolidated into a single appeal. In sum, Parent alleges that because of injuries that Student allegedly has suffered while enrolled in Ludlow’s special education program during the 2008-2009 school year, he must be placed in a private day program in order to receive a free, appropriate public education (FAPE). Ludlow asserts that its IEP and services for 2008-2009 are appropriate. Ludlow also alleges that Parent’s language and conduct towards the Ludlow members of Student’s special education Team are abusive and intimidating, and that the BSEA should appoint an educational surrogate parent and/or facilitator to represent Student’s interests and/or assist the members of Student’s Team.

Procedural History

On October 1, 2008, Parent filed a request for an expedited hearing based on alleged physical abuse and neglect at school as well as alleged failure by Ludlow to implement occupational, physical and speech therapy sessions as well as safety precautions outlined in Student’s IEP. The hearing request stated that Parent had “withheld” Student from school since September 19, 2008 and had “[filed] a 51A with the Department of Children and Families.” On October 2, 2008, the BSEA granted expedited status to Parent’s appeal and issued a notice scheduling a hearing for October 16, 2008.

On October 7, 2008, the School requested a postponement of the October 16 hearing date.

On October 8, 2008, the Ludlow Public Schools (Ludlow or School) filed its own hearing request (BSEA No. 09-2395) in which it asserted that Student’s IEP and services were appropriate, that the private program sought by Parent (the May Institute in Springfield) was overly restrictive for Student, and that Parent’s refusal to send Student to school after September 19, 2008 constituted a denial of FAPE. Ludlow also alleged that Parent’s “repeated use of profanity and verbally abusive conduct” at Team meetings and interactions with School administrators have interfered with Ludlow’s ability to complete Team meetings and work cooperatively in Student’s best interest. The School’s hearing request sought (1) a declaration that the IEP for 2008-2009 was reasonably calculated to provide Student with FAPE in the least restrictive environment and (2) appointment, by the BSEA of an “educational surrogate parent and/or facilitator to represent [Student’s] interests at a Resolution Meeting and future Team meetings in light of [Parent’s] past abusive and profane language and conduct.”

On October 9, 2008, the BSEA issued a notice scheduling a hearing on the School’s request for October 28, 2008.

After a conference call held on October 14, 2008, the hearing officer issued an order granting the School’s uncontested request to consolidate the two hearing requests and postpone the hearing on the Parent’s request, scheduling a hearing for October 28 and 29, 2008. The order also directed the School to file a written status update describing the home-based educational services to be provided to Student pending resolution of the matter, as well as to make best efforts to begin service delivery during the week of October 20, 2008.

A hearing on the merits took place on October 28 and 29, 2008. With the consent of both parties, the hearing took place at the office of the School’s counsel, Doherty, Wallace, Pillsbury and Murphy, P.C., in Springfield, MA. Parent appeared pro se , and Ludlow was represented by counsel.

Those present for all or part of the proceeding were:

Student’s Mother

Christine DeBarge Director of Student Support, Ludlow Public Schools

Brett A. Bishop Principal, East Street School

Jill Yarkey Adaptive Physical Education Teacher, Ludlow

Kimberly L. Sarnecki Physical Therapist, Ludlow Public Schools

Wendy Gage Health Care Coordinator, Ludlow Public Schools

Lisa M. Rouillard Speech/Language Pathologist, Ludlow Public Schools

Tina M. Mosher Special Education Teacher

Alissa McLean Special Education Teacher, Ludlow Public Schools

Shara Secondo Social Worker, Dept. of Children and Families

William Hearn Transportation, Lower Pioneer Valley Collaborative

Claire Thompson Attorney for Ludlow Public Schools

M. Pires Court Reporter

L. Cyr Court Reporter

The official record of the hearing consists of Parent’s Exhibits P-1 through P-13,2 School’s Exhibits S-1 through S- 49, tape recorded testimony and argument, and the written verbatim transcript created by the court reporters. After the close of the evidence on October 28, 2008, the Parent made an oral closing argument. The School requested and was granted a postponement to and including November 12, 2008 to submit a written closing argument. On November 6, 2008, the School filed an unopposed emergency request to extend the deadline for filing its brief and was granted such extension to and including November 21, 2008. The school filed its written closing argument on November 21, 2008 and the record closed on that day. On December 24, 2008, the School filed certain documents regarding post-hearing events. As the record has closed, and no motion has been made to reopen same, I have neither added these documents to the record nor considered them in issuing this decision.

ISSUES PRESENTED

The issues presented for hearing are:

1. Whether the IEP and services that Ludlow has offered and provided for the 2008-2009 school year are reasonably calculated to provide Student with a free, appropriate public education, or whether Ludlow has caused or allowed Student to be injured to the extent that the program is inappropriate.

2. Whether Ludlow failed to implement portions of the 2007-2008 IEP so that it is liable for compensatory services to Student.

3. If Ludlow’s program is inappropriate, whether Student requires placement at the May Institute in Springfield, MA in order to receive FAPE.

4. Whether the Student requires an educational surrogate parent (ESP) or facilitator to represent Student’s interests at Team meetings and in various interactions with Ludlow staff in order to ensure that Student receives FAPE.

POSITION OF PARENT

Student has been injured at school on numerous occasions and has suffered worsening of medical conditions such as diaper rashes because of the School’s failure to adequately protect him and attend to his needs during the school day. The School has not adequately responded to Parent’s concerns about this issue. Moreover, the School has failed to provide Student with speech therapy and other related services listed in his IEP. For these reasons, Student cannot receive a FAPE in the Ludlow Public Schools and must be placed in the May Institute in Springfield.

POSITION OF LUDLOW PUBLIC SCHOOLS

Parent has not met her burden of proving that the IEP and placement for 2008-2009 was not reasonably calculated to provide Student with FAPE. The 2008-2009 IEP was substantially similar to the IEP for 2007-2008, and called for the same placement. Parent had accepted the prior IEP in full. Moreover, the record shows that Student made significant, meaningful progress in all domains during 2007-2008, and Parent has presented no evidence to the contrary. In light of Student’s excellent progress during 2007-2008, It is reasonable to conclude that Student would make similar progress in 2008-2009.

Parent’s objection to the 2008-2009 IEP is based on her allegations that Ludlow has caused or failed to protect Student from injuries at school; these allegations are baseless and irrational. At all times, Ludlow has provided Student with a safe educational environment.

On the other hand, Parent’s behavior at Team meetings and in interactions with Ludlow staff has been highly inappropriate, verbally abusive and disruptive. This conduct, coupled with the unfounded accusations referred to above, have intimidated staff and undermined the Team process, to Student’s detriment. Ludlow requests, therefore, that the BSEA appoint either an educational surrogate parent or the BSEA Mediation Coordinator to facilitate Team meetings and other interactions to protect staff from Parent’s harassment.

Finally, the School acknowledges that Student missed several speech/language sessions because of the temporary unavailability of a therapist. At all relevant times, the School has been willing and able to make up the missed sessions immediately.

FINDINGS OF FACT

1. Student is a six-year-old child with disabilities who lives with his family in Ludlow. Student’s eligibility for special education and related services is not in dispute.

2. Student is described as a sweet, friendly, active child. He has global, pervasive developmental delays and carries diagnoses of Childhood Disintegrative Disorder, autism, and epilepsy. Student is primarily non-verbal, although his ability to use words is emerging. Also emerging is Student’s ability to communicate with formal signs, gestures, PECS, and low-tech communication devices. (S-5)

3. Student’s receptive language skills are somewhat better than his expressive skills. As of June 2008, when the Ludlow Team drafted his IEP for 2008-2009, Student could follow one-step directions paired with a visual sign. With help (sometimes hand-over-hand) and some simple adaptive equipment (such as a weighted pencil or slant board), Student can perform such fine motor activities as tracing his name, feeding himself with a spoon, cutting with scissors, and coloring. (S-5)

4. Student has many age-appropriate gross motor skills, but, because he is impulsive, needs to have his hand held when he walks around the school, and needs adult attention at all times, for safety reasons (S-5) On occasion, while walking, Student might drop to his knees or bump into furniture. (Mother, Mosher)

5. As of June 2008, Student was learning to dress and undress and to brush his teeth, but was not yet toilet trained. (S-5)

6. At all relevant times, Student attended the East Street Elementary School, in a self-contained special education classroom designed for young children on the autism spectrum, pursuant to an accepted IEP running from October 17, 2007 to October 17, 2008.

7. This IEP contained ten goals, with corresponding benchmarks/objectives as summarized below:

· Communication: increase receptive and expressive functional communication skills using total communication (pre-speech activities, sign language, PECS).

· Gross motor skills: With physical therapy, learn to safely mobilize in school setting.

· Fine motor/Visual motor: improve attention to table-top and self care activities to 30 minutes, including writing first name, managing clothing.

· Adapted Physical Education (APE): participate in structured gross motor activities.

· Academic: Develop a basic foundation of gross motor and vocal imitation skills.

· Academic: Improve visual performance by matching items, objects and pictures when distractors are present.

· Behavior/social skills: Increase ability to follow verbal instructions.

· Behavior/social skills: Improve ability to attend to auditory and visual stimuli, i.e., respond to name, use greetings, follow one-step instructions, complete consecutive table-top activities.

· Self care: Beginning steps of toilet training

· Self-care: improve dressing and toothbrushing skills. (S-1)

8. In addition to academic services in the substantially separate classroom, Grid A of the service delivery grid called for consultation services from an autism consultant, speech language and occupational therapist. The grid did not specify the person(s)—Parent or School employees—who would receive consultation services. Grid C provided for weekly speech/language therapy (4×30 minutes), physical therapy (1×45 minutes), occupational therapy (1×30 minutes) and APE. Accommodations included use of multisensory cues, cueing for attention, sensory strategies and breaks, and routine and structured environment, and a 1:1 aide (S-1)

9. In addition to his IEP, Student had a health care plan which stated protocols to be followed if he had a seizure. (Gage)

10. Student attended the substantially separate program specified in the 2007-2008 IEP. His primary teacher was Ms. Tina Mosher, who is certified in severe special needs and experienced with teaching students on the autism spectrum. Student had a 1:1 aide at all times, who both helped deliver individualized instruction, and accompanied Student throughout the school day. (Mosher, S-1)

Alleged Injuries :

11. The “Parent/Student Concerns” section of the IEP reports that Mother had expressed concerns for Student’s safety in school, on the playground, and on the bus. Parent requested that the School not allow Student to climb on high playground equipment and provide Student with a properly fitting car seat for transportation. Additionally, the IEP noted that Mother expressed concerns about bruises on Student, and had filed a 51A report with the Department of Social Services (now Department of Children and Families, or DCF).3 Parent had requested a daily communication log for documenting any injuries, as well as a description of how and where the injury occurred, a statement of who was present, and a report of whether or not Student was taken to the nurse. (S-1)

12. Student’s home-school log indicated back and forth communication regarding bruises, scratches and the like appearing on Student during the 2007-2008 school year (including September 2008) as follows:

· 9/11/07: Sore, reddened area behind knee (Noted by Parent; School took Student to nurse) (P-3)

· 10/15/07: School comment—Student bumped elbow on door handle. Parent comment—“[Student] was absent on Friday because I took him to doctors for bruises he has come home from school with on his leg! I have filed another 51A on the school because of these bruises! They have been documented with his doctor! Someone at school should have noticed this! Especially since there is also always 2 people with him! As his diapers are changed you don’t see these? Both people? Someone is leaving fingertip bruises on his legs! Restraining him wrong?” “I have circled the bruises on his legs from Thursday so I can see if there are any new ones today.” (P-3)

· 10/16/07: School comment—Student holding hands with staff while jumping on trampoline, scratched cheek on staff’s nail after bringing face to staff’s hand. Student also bumped head in back, no mark or bump. (p-4)

· 10/17/07: Parent comment—“Could we please keep my son free of scratches and bruises today.” (P-4)

· 10/19/07: School comment—“[Student”] has a red mark/pimple on right cheek.” (P-4)

· 10/22/07: Parent comment—“On Friday you wrote…that “[Student] has a pimple/mark on right cheek,” How about the bruise on left leg? Again.” School comment in response—“I can not tell you where the bruise on his leg came from…[he]came in with the bruise on left shin, scratch on left knee, and two scratches on the outside of his left leg.” (P-4)

· 10/22/07: Vocabulary Selection Worksheet completed by Parent: “Items activities your student/child DOES NOT LIKE: “Being abused @school.” (P-4)

· 10/31/07: School comment—Student got a scratch on his arm from the corner of a filing cabinet. (P-4)

· 11/2/07: School comment—Student dropped to knees. (P-5)

· 11/8/07: School comment—Skin on neck caught in coat zipper, child to nurse, no bleeding. (P-6)

· 11/16/07: Parent comment—Student must have 1:1 para at all times. Parent wants to be called to pick up Student if para is out and there is no substitute. “As far as Tina Fisher [classroom teacher] returning on Monday I will do everything in my power [legally] to have her removed from the special ed. Classroom.” (P-6)

· 11/28/07: School report—Student has large bruise on left shin, knee. Had done much dropping onto knees. Maintenance person looking at areas in school to pad to prevent injuries. (P-6)

· 12/12/07: School report—Padding of surfaces, boxing of pipes, securing bookcases has been completed. (P-7)

· 1/30/08: School report—small scratch on arm from para’s fingernail. (P-8)

· 2/12/08: School report—bumped head falling off scooter. (P-9)

· 3/4/08: School report—Student dropped to knees, tripped over rocker board, hit left leg. (P-10)

· 3/5/08: Parent response to above—“Did the nurse check his leg yesterday? I wasn’t called.” School reply—“I didn’t have the nurse look at it because there was no red mark. Do you want me to have her look at no matter what?” (P-10)

· 3/6/08: School comment—[Student] fell in the library on the stairs. He saw the nurse. He will have a bruise.” Student was holding teacher’s hand, had turned quickly, pulling teacher’s hand; teacher let go to avoid falling on Student, child fell on steps.4 Teacher was unable to reach Parent on home phone. (P-10)

· 3/708: Parent response to above—“How is it 2 days in a row his left [unreadable] got hurt? [And] no one called the first time! Then the nurse didn’t even check it! I don’t understand why no one called my cell #? And that you were holding on to him but he still fell?” School response—Child not taken to nurse because there was no mark. (P-10)

· 3/10/08: Parent comment—“[Student] came home on Fri. 3/7/08 with a bruise on his left jaw line going up his cheek, and a bruise on his left collar bone! I have reported this to DSS and took pictures, now who is going to tell me how he was bruised?? I will not tolerate my son being bruised. [Student] was hurt 4x in 1 week! WHY???” Parent had given cell number to staff in November 2007 and asked to have nurse check “everything,” “why is this not being done?” “Furthermore, if my child is falling I would fall first to block him especially on stairs!” (P-10)

· 3/11/08: School comment—“I don’t know how he was bruised.” (P-10)

· 3/18/08: School comment—Student hit lip with toothbrush while brushing teeth, small dot of blood, taken to nurse. (P-10)

· 3/19/08: Parent comment—“his lip seems fine.” (P-10)

· 4/2/08: School comment—Student arrived at school with bruises on his shins and a scratch on his knee. (S-22-C)

· 4/11/08: School comment—Student arrived at school with bruised left elbow and a scratch on his hand. (P-11)

· 4/29/08: School comment—Student arrived at school with small bruise on left hipbone. Student dropped to knees several times. (S-22-P)

· 5/1/08: School comment—Para accidentally scratched Student’s hand with her fingernail. Student did not see nurse. (P-12)

· 5/7/08: School comment—Student was very uncomfortable and crying for 30 – 40 minutes; taken to nurse, no fever. (S-22-V)

· 5/8/08: School comment—Student has long scratch on left leg. (S-22-W)

· 5/13/08: School comment—Student stuck his fingers into hinge area of door while it was closing, finger “squished,” and swollen. Student saw nurse, finger put in cold water. (P-12; S-22-Z)

· 5/14/08: School comment—Student has been hitting his elbow and head on purpose “as a reaction to so not getting something or just as self-stimulation.” (P-12, S-22-AA)

· 6/12/08: School comment—Student fell while getting off bike, scraped right leg, saw nurse. (S-22-SS)

· 6/18/08: School comment—Student tried to throw self out of chair while “not being happy about brushing,” caught corner of desk with the side of his face; taken to nurse. (S-22-WW)

· 9/5/08: School comment—Student hit his knee on bottom of slide when trying to climb up slide from bottom. Student was taken to the nurse. (P-12; S-22-ZZ)

· 9/8/08: School comment—Student cried for a very long time after lunch, holding his head/folding over his ears. (P-12; S-22-AAA)

· 9/9/08: Parent response to above—School should call her if Student cries for a long time, as this may be a silent seizure. “This is neglect.” School reply—“I’m sorry about that. It won’t happen again. Services are now being set up. They will be starting soon.” (P-12; S-22-BBB)

· 9/10/08: Parent comment—“I don’t understand how services are just being set up now. [Student] started school last week…I have informed CFS of the neglect. All of the people working with [Student] should all know that he is to be seen by the nurse for anything, then I am to be called ASAP! This is not being done! Why? School reply—service providers are making up their schedules and “should be starting ASAP.” Parent should direct concerns to Ms. DeBarge or Ms. Tillotson. There was a substitute teacher on the day Student was crying. Subs will now be informed to take Student to the nurse.” (P-12; S-22-CCC)

· 9/17/08: School comment—At 12:30 PM, Student struck his own forehead with a plastic microphone “out of excitement.” No mark initially, taken to nurse at 3 PM after small red dot appeared. Parent response: Why was Christine alone with him? And that’s not bridge of nose!” (S-22-HHH)

· 9/18/08: Parent comment: “The nurse called me yesterday at 3:00 PM about the mark on [Student’s] forehead. She said it JUST APPEARED. You wrote 12:30, who’s [lying]. The nurse also told me that there was no broken skin. There was. Why wasn’t I called? Again.” (S-22-III)

· 9/18/08: Parent comment: “I am [filing] a 51-A on all of you.” (S-22-JJJ)

13. In addition to the written exchanges listed above, the record contains considerable testimony regarding the injuries described in the home-school log. Parent testified that the school should have informed her immediately when Student cried for long periods or was unusually tired, since these symptoms sometimes indicated seizures. (Parent). On the other hand, school nurse Wendy Gage5 testified that on at least one such occasion (May 7, 2008), after Student had been crying for some time, she saw Student, determined that he had no fever, spoke to Parent by telephone, and received Parent’s permission to send Student back to class. (Gage)

14. Parent further testified that some injuries occurred because Student was not being supervised adequately or had only one adult with him instead of two. Additionally, Parent testified that some injuries were more severe than the school had reported. For example, Parent stated that the scratch that Student received on his hand on May 1, 2008 was actually a puncture wound that had not been cleaned adequately. Parent took Student to the pediatrician for treatment of that scratch. (Parent)

15. The record establishes that Student frequently had diaper rashes that could appear suddenly and become quite severe. (Parent, Gage, Mosher) Parent testified at the hearing that School staff used medication on Student (Vaseline and/or Balmex) to which Student was allergic, thereby causing his diaper rash to worsen. (Parent). The school nurse testified, on the other hand, that the ointments used were pursuant to district-wide standing orders, and that Parent failed to produce the necessary medical documentation to allow or require the School to use different medications, and also failed to send in prescribed rash medications that she had at home. (Gage) The contemporaneous home-school logs indicate that Student’s rashes were unpredictable, sometimes appeared to be caused by reactions to the diapers themselves, and that both Parent and School made efforts to treat and prevent the rashes. (P-3 through P-12)

16. The record contains no medical testimony or documentation regarding Student’s injuries, diaper rash, or any other health condition. Parent filed 51A reports at various times with the DSS and/or DCF, but the record does not indicate that any of these reports was “screened in” for further investigation. The same is true for 51A reports filed by the School. (Secondo) Parent’s DCF caseworker noted that Student seemed to have received injuries at school, but did not file 51A reports, at least partially because she had no direct knowledge of the circumstances of the injuries. (Secondo) Parent has provided no witness testimony or documentary evidence indicating that the environment at the East Street School is unsafe for Student.

Student’s Progress Under 2007-2008 IEP; IEP for 2008-2009

17. Parent had fully accepted the IEP for 2007-2008 (which included a summer program and extended until mid-October 2008). According to testimony of providers and school progress reports, Student made progress in all areas covered by this IEP. Among other things, Student showed measurable growth in communication (including improved use of PECS, signing, and assistive technology, increased jargoning, and the emergence of both words and occasional two-word combinations), as well as in self-care (e.g., self-feeding, beginning undressing), behavior, interaction with others, gross and fine motor skills and pre-academic skills (including cutting, tracing, matching, and attending to the teacher). Much of this growth was documented by data from discrete trials. (See, generally, Ex. S-21, S-26 – 34; Mosher, Yarkey, Rouillard, Sarnacki)

18. Parent neither rejected this IEP during its term, nor provided documents or testimony indicating that the IEP was inappropriate. Rather, Parent made statements to the effect that the IEP was not being fully implemented, services were missed, and substitutes were used too often. (Parent) The School has acknowledged that Student missed a number of speech/language therapy services during the summer and fall of 2008 because no therapist was available, and has offered compensatory services. As of the hearing date, Parent had not yet availed herself of these services. (Parent)

19. In June 2008, and on September 18, 2008 the TEAM met to develop the IEP for the 2008-2009 based on a three-year evaluation conducted in the spring of 2008.6 (S-5) The September 18, 2008 Team meeting adjourned early because Parent had become angry at various staff members, was using vulgar language, and making accusations. Nonetheless, the Team generated an IEP, which, as stated above, continues the same placement and essentially the same services as the IEP for 2007-2008, with more advanced goals and benchmarks to reflect Student’s increased age and skill level. (S-5) Parent rejected this IEP on September 28, 2008. (S-5)

20. On that date, Parent also wrote a letter to Ludlow requesting placement of Student in the May Center in West Springfield, based on an “overwhelming amount of injuries sustained at school…failure to follow simple safety precautions, lack of speech services…failure to provide the safest, least restrictive environment…lack of proper, safe, transportation…7 ” and failure to meet medical needs. (S-5)

21. On or about September 19, 2008, Parent removed Student from the East Street School. As of the date of hearing, Parent has continued to keep Student at home. (Parent, Bishop) Pursuant to agreements reached during pre-hearing conference calls, Ludlow arranged for interim, home-based services to be provided beginning October 22, 2008. The assigned tutor, Ms. Alissa McLean,8 reviewed Student’s IEP and programs and appeared at the Parent’s home on that date, at what she believed to be the agreed-upon time. Parent and Student were not there. Parent and Ms. McLean have different explanations as to why the meeting did not occur. As of the hearing dates, tutoring services had not begun. (Mother, McLean).

Program Proposed by Parent

22. The Parent seeks an order directing Ludlow to place Student in a day program operated by the May Institute at its West Springfield site. Parent provided no information about the program other than a brief statement printed out from the May Institute web page, which indicates that the program provides “individualized education and/or vocational training support to children (aged 3 through 22) diagnosed with autism, pervasive developmental disorder (PDD) and other developmental disabilities.” (P-1)

23. Parent testified that she has had telephone conversations with May Center staff which have led her to conclude that the school would provide Student with breadth and consistency of service and monitoring of progress that she believes Student has not received from Ludlow. Parent also believes that Student would receive services in an open classroom setting at the May Center, rather than in a small cubby, where, Parent testified, Student spends much of his time at the East Street School. The May Center, therefore, would be less restrictive than the East Street School, according to Parent. (Parent) Parent has been told that there is an opening available at the West Springfield site. (Parent) Neither Parent nor any witness on her behalf has observed the May Center program directly. There is no evidence on the record that May Center staff members have met Student, reviewed any of his records, or otherwise taken steps to determine whether they view their program as appropriate for Student.

Parent-School Relationship

24. The relationship between Parent and the staff at the East Street School has been strained almost from the beginning of Student’s tenure there. The principal, Mr. Brett Bishop, testified that in September 2007, he observed Parent speaking angrily to a teacher. When Mr. Bishop had a private conversation with Parent about her concerns, Parent accused Student’s aide and the school nurse of negligence and demanded that they be fired. Parent further accused the school nurse of negligently pushing Student so that his head struck a cabinet, as well as falsely stating that Student had a fever in an effort to have Parent take Student home, and “be rid of him.” (Bishop)

25. During the conversation, in which Mr. Bishop assured Parent that he would investigate the allegations, Parent allegedly used inappropriate language, threatened to report her situation to a television station, and to get a lawyer. Parent also allegedly entered Student’s classroom after being told not to, and raised her voice to staff. (Bishop)

26. Mr. Bishop testified that despite his efforts to develop a good working relationship with Parent, and to solve problems collaboratively,9 Parent became inappropriately loud and angry on at least ten occasions. (Bishop)

27. Finally, Mr. Bishop testified that Parent’s response to relatively routine problems, that could be solved collaboratively was so angry that staff were “tentative” with Parent, and problems could not be solved. Staff had come to his office in tears. Student’s 1:1 aide for 2007-2008 asked for a transfer at the end of that school year because she felt she could not handle the stress of dealing with Parent. Other staff felt intimidated by Parent’s threats of filing 51A reports. The principal suggested that Student always be accompanied by at least 2 staff, to protect the staff members from potential allegations of abuse or neglect. (Bishop)

28. As stated above, Parent reportedly yelled, used profanity, and accused staff members of lying and neglecting Student during the TEAM meeting of September 18, 2008, leading to early adjournment of the meeting. (Bishop, DeBarge, S-6).

29. Finally, Parent has reportedly yelled and used vulgar language with other personnel connected with the Ludlow Public Schools, including an employee of the transport company and the assistant to Ms. DeBarge. (DeBarge, Hearn)

30. Parent asserts, on the other hand, that if she used profanity, it was because she was concerned for the health and safety of her son, who is very young, vulnerable, severely disabled, and incapable of speaking for himself. Parent has been highly frustrated with his repeated injuries and what she views as the School’s inadequate response to those injuries and other concerns. Parent believes that her conduct, to the extent it has occurred, is entirely reasonable and understandable under these circumstances. (Parent)

31. Mr. Bishop and others believe, on the other hand, that Parent’s outbursts and accusations are irrational, and that a “neutral” facilitator is necessary to enable the Team to engage in ongoing collaboration on Student’s behalf without staff being intimidated or thwarted by Parent’s volatile presentation. (Bishop)

FINDINGS AND CONCLUSIONS

After reviewing the testimony and documents on the record, I conclude that Parent has not proved that the program and services offered by Ludlow for 2008-2009 are inappropriate, or that Ludlow has failed or is likely to fail to provide Student with a safe school environment.10 I further conclude that the IEP and services proposed for 2008-2009 are reasonably calculated to provide Student with a free, appropriate public education (FAPE). Because the School’s proposed program is appropriate, I need not reach the question of whether the May Center program proposed by Parent would meet Student’s needs.

On the other hand, the School has failed to establish any legal basis under which the BSEA has the authority to appoint an Educational Surrogate Parent (ESP) or in any other way diminish the Parent’s authority to represent her child’s interests, or even to order the presence of a neutral facilitator at Team meetings or other interactions between the school and the Parent. My reasoning follows.

Appropriateness of Ludlow’s IEP for 2008-2009

The Parent and School agree that Student is a child with significant disabilities who is entitled to a free appropriate public education (FAPE) as defined in federal and state law.11 The parties also agree that Student needs an intensive, substantially-separate, full-day, full-year program designed for children on the autism spectrum, which provides highly individualized, data-based instruction and which addresses Student’s communication, pre-academic, social/emotional, behavioral, motor, and self-help skills. The parties agree that the 2007-2008 IEP and placement met these criteria, as indicated by Parent’s acceptance of that IEP. The parties’ dispute is based on Parent’s assertion that Ludlow failed to provide Student with a safe educational environment while the accepted IEP was in effect. Parent rejected the successor IEP for 2008 – 2009 because she believed that the School would continue to fail to ensure Student’s safety.

For her argument that the School has failed to provide a safe environment, Parent has relied on reports of injuries to Student over the course of the 2007-2008 school year, through the first part of September 2008. There is no dispute that Student has been injured on numerous occasions during that period, as detailed above, and it is understandable that Parent would be concerned. The fact that Student got hurt on occasion, however, would not render the School’s program inappropriate unless the injuries or circumstances leading up to them deprived the Student of FAPE, i.e., interfered with his receipt of services under his IEP or prevented him from making progress. The record here simply contains no evidence of such deprivation. In fact, the documents and testimony presented by the School establish the opposite—that Student made effective progress in all identified areas of need under the 2007-2008 IEP, and likely would continue to make progress under the rejected IEP.

Moreover, the School’s evidence is uncontroverted. Parent presented no documentary evidence and no expert testimony suggesting that Student had not made progress. The record contains no medical reports whatsoever relative to Student’s injuries, and no reports or testimony indicating that the injuries that Student did receive had any discernible effect on his educational progress. The record does show that until Parent removed him in September 2008, Student had good attendance, enjoyed school, and made progress in all domains.

Further, other than Parent’s allegations, the record contains no testimony or documentation indicating that Student’s environment was unsafe or that his teachers, paraprofessionals or others were negligent in their care and supervision of him. There is no evidence that Student’s doctor filed a 51A report against the School or otherwise communicated concerns about Student’s safety there. Parent’s 51A reports to DSS and DCF were screened out as unsupported. While Parent’s concerns in no way should be viewed as trivial, there simply is no evidence on the record that the bumps, bruises, and scrapes that Student received were the result of neglect, or caused him to be deprived of a FAPE.

In light of the substantial, uncontroverted evidence of Student’s progress under the accepted 2007-2008 IEP, I conclude that the 2008-2009 IEP, which essentially continues the services and placement of its predecessor, was and is reasonably calculated to provide Student with FAPE. This conclusion is not undermined by the reports of various injuries to Student during the 2007-2008 school year (including September 2008) because there is simply no evidence that these injuries interfered with Student’s educational progress or were the result of poor supervision or an otherwise unsafe environment. Moreover, other than the missed speech therapy services, which the School has acknowledged and is ready to make up, the Parent has presented no evidence of missed or absent services under the 2007-2008 IEP. No compensatory services other than the previously-mentioned speech/language services are owed to Parent with respect to the 2007 -2008 IEP.

Because the School’s program is appropriate, there is no need to determine the appropriateness of the program proposed by the Parent. Moreover, Parent’s failure and refusal to allow Student to participate in the program that clearly is appropriate for him deprives him of a free, appropriate public education.

Appointment of Educational Surrogate Parent or Facilitator by BSEA

It is clear that the relationship between Parent and School staff is strained at best. Mr. Bishop, the East Street School principal testified credibly that at least some of Student’s providers felt and feel intimidated by Parent, and fear false accusations of abuse or neglect. Mr. Bishop further testified that the tense, volatile, relationship between Parent and School employees precludes the kind of ongoing, collaborative problem solving by Parent and School that are essential for Student’s continued success. Mr. Bishop’s view is corroborated by the abrupt termination of the Team meeting of September 18, 2008.

Parent, on the other hand, is adamant that any anger or volatility on her part has been reasonable or at least understandable, in light of the injuries to her son and unsatisfactory response on the part of the School.

Under these circumstances, it is understandable that the School feels that a neutral third party must be present during its interactions with Parent. In fact, the presence of such a third party, or any individual with whom both parties feel comfortable could well help the parties work together in Student’s best interests. The parties are encouraged to explore this strategy.

The School has cited no legal authority under which the BSEA may order the parties to have such a person present, however, or may appoint a particular person in that capacity. In fact, while the IDEA and accompanying regulations, as well as state law, encourage informal dispute resolution, including mediation, and while these provisions certainly could be read to allow for the presence of a neutral person at Team meetings and the like to facilitate communication and resolve disputes as they arise, the relevant provisions emphasize that the process is to be entirely voluntary on the part of both parents and school districts.

Specifically, the IDEA, at 20 USC Sec. 1415(e), requires state and local educational agencies to establish a mediation process that is available to resolve any dispute, including disputes arising prior to requesting a due process hearing. 20 USC Sec. 1415(e)(1). Among the requirements for this mediation process is that it be “voluntary on the part of the parties.” Id., at Sec. 1415(e)(2(A)(i).

In the event that parties do not wish to use mediation, school districts and states may “establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with (i) a parent training and information center or community parent resource center…established under 20 USC, Sec. 1471 or 1472…or (ii) an appropriate alternative dispute resolution entity…” in order to “encourage the use, and explain the benefits, of the mediation process to parents.” Id. at Sec.1415(e)(2)(B)(i), (ii). The implementing Federal regulations track the language of the statute. See 34 CFR Sec. 300.506.

The corresponding state law, G.L. c. 71B, Sec. 3, also explicitly states that the mediation process is voluntary. “At any time, school committees and parents…may voluntarily agree to seek resolution of any dispute through mediation provided by the [BSEA]…” Id. (Emphasis supplied). State regulations provide that a “ voluntary dispute resolution procedure, called mediation, shall be provided by mediators employed by the [BSEA] and may be used by parents and school districts to seek resolution of their dispute… No parent shall be required to participate in mediation .” 603 CMR 28.08(4). (Emphasis supplied).

Clearly, the voluntary , willing participation of all parties to the dispute is an essential element of the mediation process, and, by logical inference, any similar, informal dispute resolution procedure. If parties are reluctant to mediate, states may establish resources to educate them about the benefits of mediation and encourage them to use the process. Neither federal nor state law contains any provisions authorizing a hearing officer—or any other government employee or entity—to turn a voluntary process into a compulsory one.

Finally, there is absolutely no authority for the BSEA to appoint an Educational Surrogate Parent (ESP) for a student who is in the custody of a parent who has full decision-making authority for that student. Federal law authorizes the appointment of an ESP for children “whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State…[or]..an unaccompanied homeless youth.” For children who are wards of the state, the appointment may be made by an appropriate court. 20 USC Sec. 1415(b)(2)(A). This is the only provision of federal law that allows for appointment of an individual other than the parent to make educational decisions for a child.

The corresponding state regulations refer to federal law, directing the Department of Elementary and Secondary Education (DESE), ( not the BSEA),to appoint an educational surrogate parent “when a student is without parental representation and requires an educational surrogate parent to be appointed in accordance with federal law and regulations.”

It is important to note that an ESP is not merely a facilitator of parent-school interactions, but, rather, is a true surrogate, i.e., is authorized, by law to “have all the rights and responsibilities of a parent in making decisions regarding eligibility and services for special education for the assigned student.” 603 CMR 28.07(7). Obviously, a surrogate can only be appointed in the absence of a parent with decision-making authority.

Here, Student has a parent with whom he lives, and who has full educational decision-making authority. The BSEA can declare, as in this case, that a particular IEP is appropriate and reasonably likely to afford FAPE to a child. The BSEA can even rule—as here—that a parent’s failure or refusal to allow a child to participate in the school’s program deprives the child of FAPE. The BSEA may even have the authority to order DESE to appoint a surrogate for a child who—unlike Student–clearly is entitled to one under federal and state law, in the event that DESE has failed to do so.

Unlike a court of competent jurisdiction, however, the BSEA has no jurisdiction or authority to take educational decision-making rights away from parents and assign them to another individual.

RULING AND ORDER

1. The IEP and placement that Ludlow proposed for Student for the 2008 – 2009 school year has been for all relevant times, and is, reasonably calculated to provide the Student with a free, appropriate public education in the least restrictive environment. The Parent has not demonstrated that the IEP and placement are inappropriate for reasons of health and safety or otherwise.

2. The Parent’s failure to allow Student to attend the School’s program deprives Student of a free, appropriate public education.

3. Ludlow does not owe Parent compensatory services attributable to the 2007-2008 IEP other than the speech therapy sessions previously acknowledged by Ludlow and referred to elsewhere in this Decision.

4. The BSEA lacks authority to appoint an Educational Surrogate Parent for Student. The BSEA lacks authority to order the parties to use a facilitator at Team meetings or other interactions, or to appoint a specific individual to serve in that capacity.

Parent is urged and encouraged to allow Student to participate in the educational program in which he made meaningful progress in the past. Notwithstanding #4, above, the parties are encouraged to explore all avenues for improving their working relationship, including but not limited to use of a facilitator at Team meetings.

Student has multiple, severe, complex needs, and also the ability to make significant progress. The parties are urged to take all steps necessary to work together on behalf of Student.

By the Hearing Officer:

____________________ _____________________________

Sara Berman


1

Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”


2

Parent had tabbed but not numbered her exhibits. The Hearing Officer numbered the tabs in the order of appearance in Parent’s binder.


3

As will be discussed further, Mother and School each have filed several 51A reports with DCF. There is no dispute that DCF has “screened out” all reports.


4

Regarding this incident, the teacher who had been with Student testified that the steps in question were broad, carpeted steps in the school library that children sit on to listen to stories. Student fell down one or two such steps. (Mosher)


5

Ms. Gage is the health care coordinator for the entire district and, therefore, is present at the East Street School approximately twice per week. Another nurse is provides coverage at the school on all school days when Ms. Gage is not present. Ms. Gage testified both from personal knowledge when applicable and on the basis of computerized, contemporaneous nursing notes that either she or the on-duty nurse had created in accordance with school policy applicable to all students.


6

The 2007-2008 IEP ran from October 2007 through October 2008. The 2008- 2009 IEP ran from June 2008 through June 2009, and was not delivered to Parent until September 2008. The record contains no clear explanation of the reasons for the effective dates of the IEPs or for why Parent did not receive the IEP until September 2008.


7

Ludlow contracted with the Lower Pioneer Valley Educational Collaborative to provide transportation services to Student. Parent alleged various safety infractions such as failure to use properly fitting car seats, and failure to ensure that the vehicle was properly braked when letting the Student on or off. (Hearn, Parent, P-2). The transportation company denied Parent’s allegations. (Hearn)


8

Ms. McLean is a certified special education teacher who oversees the autism program at Ludlow Middle School. (McLean)


9

Mr. Bishop and Ms. DeBarge arranged for padding of potentially bruise-inducing surfaces. Mr. Bishop suggested that Student be given shin pads, but Parent rejected that suggestion. (Bishop)


10

Pursuant to the U.S. Supreme Court’s decision in Schaeffer v. Weast , 546 US___(2005), the party in a special education case who is seeking to change the status quo has the burden of persuasion. Here, the Parent has challenged Ludlow’s IEP for 2008-2009, and, therefore, must demonstrate that this IEP is inappropriate.


11

The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401. The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs, in light of the child’s potential. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).


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