COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Ludlow Public Schools & Janelle1
BSEA 10-3822
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C.§794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on July 6, 13 and 27, 2010 at the Springfield offices of Catuoguno Court Reporting Services. Those present for all or parts of the proceeding were:
Ms. J. Parent
Susan J. Grandparent
Tom J. Family Friend
Bonnie Manchester Teacher, SIP Classroom, Ludlow Public Schools
Don Casella Clinical Consultant, SIP Program, Ludlow Public Schools
Sean Kane School Adjustment Counselor, Ludlow Public Schools
Wendi Lawson Teacher- Ludlow Public Schools
Regina Momnie Psychologist, Ludlow Public Schools
David Kelleher School Adjustment Counselor, Ludlow Public Schools
Lynn Cerruti Teacher, LLD Program, Ludlow Public Schools
Odette Nunes-Turcotte Teacher, Ludlow Public Schools
Kathleen Salamone School Psychologist, Ludlow Public Schools
Ingrid Jones Teacher – Compass Program
Eva Tillotson Special Education Supervisor, Ludlow Public Schools
Claire Thompson Attorney for Ludlow Public Schools
Lindsay Byrne Bureau of Special Education Appeals Hearing Officer
also testifying, by speaker phone:
Bruce Waslick Psychiatrist – Baystate Medical Center
Brian Willoughby Neuropsychologist – Mass. General Hospital
Joyce Morris Autism Consultant – Ludlow Public Schools
The official record of the hearing consists of exhibits submitted by the School marked S-1 through S-66, exhibits submitted by the Parent marked P-1 through P-6, P-8, P-11-14, P-16-18, P-20, P-22-32, P-34-58, P-60-90, P-93-P-110, P-111 except last page which is excluded, P-112, and approximately 18 hours of recorded oral testimony and argument. The parties made oral closing arguments on the last day of hearing, July 27, 2010, and the record closed on that day. The Parent was pro se throughout the proceedings. The School had legal representation.
ISSUES :
I. Whether the 2009-2010 IEP developed by Ludlow Public Schools which called for Janelle’s placement in a substantially separate SIP classroom at the Baird Middle School was reasonably calculated to provide her with a free, appropriate public education?
II. Whether Janelle was entitled to receive a home education program from June 3, 2009 through the date of the hearing pursuant to 603 CMR 28.03 (3)(c)?
III. Whether the proposed IEP calling for an extended evaluation to be conducted during the summer 2010, was appropriate?
IV. Whether the proposed 2010-2011 IEP calling for Janelle’s placement in
a substantially separate Compass Program classroom in Ludlow High School is reasonably calculated to provide her with a free, appropriate public education?
SUMMARY OF THE EVIDENCE
1. Janelle is a fifteen year old who is assigned rising 9th grade status, though she has not attended school since at least May 2009. Janelle has at least average cognitive potential and has been diagnosed with high functioning autism, sensory modulation issues, low muscle tone, and a language based learning disability. These disabilities result in functional communication deficits and social skills impairments that interfere with her ability to access and benefit from the mainstream educational environment. At this point, however, the most significant factor impeding Janelle’s educational progress is Depressive Disorder. This has resulted in marked levels of emotional distress in the school setting and precipitated multiple visits to the emergency room and inpatient hospitalization in the spring 2009. (Willoughby; Waslick; S-18; S-19; S-22, P-35; S-11, P-26).
2. During the 2008-2009 school year, Janelle attended the Compass Middle School program in a neighboring town. The Compass Program, part of the Lower Pioneer Valley Educational Collaborative, was a self-contained class offering individualized academic instruction in a small group of students with pervasive developmental delay. (P102) In the spring 2009, Janelle’s emotional status began to deteriorate. She expressed sadness and suicidality at school, prompting the Compass Program to development and implement a safety plan. The safety plan required consultation with the school nurse and referral to off-site crisis management resources when Janelle indicated she had suicidal thoughts. These referrals resulted in both inpatient and day hospitalizations. (S-22, P-35, S-26).
3. Ludlow conducted a three year re-evaluation during the spring, 2009. Eva Tillotson, Ludlow Special Eucation Director, testified that when she became aware of Janelle’s difficulties in the Compass Program, she offered to transfer Janelle to the SIP Program at the Baird Middle School in Ludlow. The SIP Program is a small, self-contained academic program designed to meet the educational needs of students with significant interfering emotional concerns. The Parent visited the SIP Program on April 16, 2009 and declined to enroll Janelle. (Tillotson,Manchester, Parent; S-23, 24, 25).
4. The Team reconvened on May 27, 2009 to consider the results of the three-year re-evaluation and to develop a responsive educational program for Janelle. (P-24; S-18; S-19; S- 17; S-16; S-15). A draft IEP calling for Janelle’s placement in a self-contained, therapeutic academic program was developed. The Team agreed to postpone the final development of the IEP until after the results of a parentally arranged neuropsychological evaluation to be conducted during the summer, 2009 became available. (Tillotson)
5. On May 26, 2009 Dr. Bruce Waslick, Janelle’s psychiatrist, wrote that Janelle required a therapeutic day school setting, with constant availability of therapists/counselors to appropriately address her thoughts of self injury or suicide. (P-27). He completed a “Physician’s Statement for Temporary Home or Hospital Education” on June 3, 2009. He wrote that Janelle required tutoring services at home due to depression and anxiety until “a new therapeutic school program is located” or “sufficient therapeutic supports are added to current program”. (P-28)
6. Ludlow arranged for a tutor to deliver ten hours per week of academic instruction to Janelle at home beginning June 8, 2009. The in-home tutoring has continued, with a few staff changes, even after the Mass DOE/PQA advised Ludlow on February 16, 2010 that Dr. Waslick’s statement did not meet threshold regulatory requirements for justifying home tutoring. The Parent never filed, or requested approval of, a plan with the Ludlow Superintendent for an independent home-education program. (Tillotson; S-1).
7. Dr. Brian Willoughby, a psychologist associated with the Learning and Emotional Assessment Program at Mass. General Hospital, conducted a Neuropsychological Evaluation of Janelle over the course of four hours on July 28, 2009. Dr. Willoughby did not visit any educational programs proposed by Ludlow, review any IEPs, speak to any Ludlow Public School staff, nor to any of Janelle’s mental health service providers. In a report dated August 18, 2009, Dr. Willoughby reported findings largely consistent with the evaluations of the Ludlow Public Schools. He found that Janelle had average intellectual potential as measured by standardized intellectual function tests, and grossly average academic and language functioning consistent with her potential. He found her weaknesses in social communication and executive functioning to be consistent with her diagnoses of High Functioning Autism, Generalized Anxiety Disorder and Depressive Disorder. He also found her difficulties with phonological processing and working memory to be consistent a language based learning disability. Dr. Willoughby concluded that Janelle required:
an educational placement (that focuses) on adolescents with a combination of learning, emotional and autism spectrum disorders…(1) is substantially separate, (2) has a very small student-teacher ratio, (3) serves students with similar profiles whose primary diagnosis is an autism spectrum disorder, (4) can accommodate students with marked emotional concerns and manage crisis as they arise (ie. has a significant mental health component), and (5) can provide remediation in language based academic areas.
He further recommended that she receive a multi-sensory, phonics based reading program (such as Wilson, Lindmood-Bell or Orton-Gillingham), direct speech- language services, occupational therapy, a social skills group, and specific academic accommodations her for processing and production weaknesses. The setting should be calm, quiet, predictable, integrated and flexible. There should be regular consultation with her mental health service providers, a behavioral intervention plan, and activities in which Janelle could be successful. (S-11, P-26)
8. The Team met on September 11, 2009, to consider Dr. Willoughby’s recommendations. The Team adopted them in full as consistent with the findings of its own evaluators. The Team also acknowledged the universal recommendations for “therapeutic” program. The Team concluded that either the Compass Program Janelle had attended before being removed from school in the spring 2009, or the SIP Program at the Baird Middle School, could meet Janelle’s needs. The Parent refused continued placement in the Compass Program. (Tillotson)
9. On November 24, 2009, Ludlow proposed an IEP calling for Janelle’s placement in the substantially separate SIP Program at the Baird Middle School. The IEP included a “Safety Plan” for addressing any potentially risky behaviors or language in the school setting. Bonnie Manchester, the teacher in charge of the SIP classroom proposed for Janelle, described the program as a small, therapeutic, academic remediation class. (S-30) She concentrates on creating a calm, relaxing environment in which students with autism spectrum disorders, communication disabilities and emotional disabilities secondary to trauma, can learn. Ms. Manchester testified that during the 2009-2010 school year she served 7 students, 3 of whom had an autism spectrum disorder, 2 of whom had a primary emotional disability (one due to trauma, one school reluctant). None of the students had aggressive or acting out behaviors. Ms. Manchester had 2 classrooms in which to group the students and three paraprofessional staff assistants. She collected data on each student daily, marking attitude and behavior for planning educational interventions, developing functional behavior plans if necessary, and monitoring medication effects. The students also earned points for rewards each day. (Manchester).
Ms. Manchester testified that the structure, routine and environment in her class is designed to address the sensory and social-emotional concerns of students with autism spectrum disorders. Most, like Janelle, have significant anxiety and aversion to noise, sudden or unpredictable movement, transitions, and large groups of people. Most, like Janelle, need assistance and support in language based activities, and, in particular, social communication. Most respond positively to the quiet, ordered, reward-based approach to learning in the SIP Program. (Manchester)
While mainstream access is available when a student is ready, the SIP classroom has a separate entrance and separate lunch from the rest of the Middle School. Ms. Manchester teaches academics in language based clusters such as English/ reading/social studies in order to infuse a social/emotional component and coach prosocial skills. She uses art, manipulative projects, games and physical activities to reinforce academic skills, build successes and keep bodies moving, (which, according to Ms. Manchester, helps ward off depression). She often brings regular education teachers into the classroom to enrich math and science instruction when sending students into the mainstream is not indicated. The class also has off-site activities to develop problem solving and leadership skills. (Manchester)
10. In addition to the SIP classroom instruction, the 2009-2010 IEP proposed for Janelle included: a weekly therapeutic social pragmatics group conducted by Don Casella, the clinical consultant to the SIP program and Ms. DelPreet, the speech- language therapist; a weekly lunch bunch social skills group conducted by the autism consultant Joyce Morris; weekly individual counseling with the school adjustment counselor or school psychologist; adaptive physical education three times per week; consultation by the occupational therapist; and daily classroom check-ins and crisis response by nursing and school adjustment staff (S-21, P-22, 23; Manchester; Casella; Cerruti)
11. Adjacent to the SIP Program is the Baird Middle School substantially separate language learning disabilities classroom (“LLD”). Lynn Cerruti, the LLD classroom teacher explained that the classroom services and instruction would be available to Janelle if she could manage a less intensive therapeutic environment. There are 12 students with one teacher and one paraprofessional. None of the students has an autism spectrum disorder. All students attend homeroom and lunch in the mainstream; some attend regular education classes for part of the day. The substantially separate class instruction concentrates on remediating deficits in decoding/encoding, reading comprehension, working memory and math in a quiet, relaxed environment. (Cerruti)
12. The Parent rejected the proposed 2009-2010 IEP on December 3, 2009. (S-21)
13. On March 12, 2010, Janelle’s psychiatrist Dr. Bruce Waslick submitted a Physician’s Statement for Home-Hospital Education stating that Janelle could not tolerate school due to severe depression and anxiety and required home schooling until a therapeutic school could be arranged. There is no expected date of return on the form. (P-28).
14. Seeking clarification of its responsibilities for Janelle’s educational services, Ludlow requested a due process hearing on March 15, 2010. Over the course of the next few months the parties engaged in several formal and informal discussions in an attempt to reach agreement about the appropriate educational placement for Janelle. One result of these discussions was that Ludlow sent “referral packets” to five therapeutic day programs: Hampshire Educational Collaborative, Poet Seat, Valley West, N.E.A.R.I., and Tri-County.
All the programs indicated that Janelle could be appropriately served. The Parent visited Hampshire Educational Collaborative and Valley West, but did not complete the intake process. She did not visit the other three programs. The parent informed Ludlow that none of the proposed programs was appropriate for Janelle. (Tillotson; S-45; S-46; S-47; S-48)
15. The Team reconvened on May 27, 2010 to develop an Extended Evaluation. The evaluation sought to determine Janelle’s then current social, emotional academic functioning in order to craft an appropriate IEP for her for the 2010-2011 school year. (Tillotson) The Team offered to conduct the evaluation in any of the out- of-district programs chosen by the Parent. When the Parent declined this option, the Team proposed conducting the evaluation in two settings:
the first part would take place in the Compass Program at the Ludlow High School for the remaining three weeks of the school year; the second part would take place in the summer proram at the Baird Middle School from July 6, 2010 to August 5, 2010. There would be three Team meetings during the diagnostic period. (S-53; S-56; P-1, 2)
16. There were five students, all with an autism spectrum disorder, in the Compass High School Program in June 2010. The teacher, Ingrid Jones, had taught Janelle during the 2006-2007 school year and had a good relationship with her. Ms. Jones, and the classroom paraprofessional, have significant experience teaching students with autism and language based learning disabilities. Ms. Jones testified that the Compass classroom environment and instruction is structured specifically to meet the social-emotional and academic needs of students with Asperger’s Syndrome and Pervasive Developmental Delay. According to Ms. Jones anxiety, depression and learning disabilities are common in this population and therefore a therapeutic approach is necessary and universal. Ms. Jones also has experience in easing students back into a classroom environment after a significant absence. The Compass High School Program is self-contained. The Compass classroom offers a separate entrance and lunch if required. Computers are available in the classroom. Although each student’s academic program is individualized, all follow a high school curriculum. Language pragmatics and social interaction skills are integrated into every course. Explicit language-based strategies and organizational skills are taught and practiced throughout the day. There is a predictable, posted schedule. The teachers model calm, confidence and problem solving. Expectations are clear and concrete. There is regularly scheduled and crisis mental health support available to the classroom teachers as well as to the individual students. The school psychologist’s office is next door to the classroom. The school adjustment counselor works with the classroom group and with individual students on both a scheduled and as necessary basis to address issues of anxiety, feelings of loss of control, stress, being overwhelmed and irritable, all reportedly experienced by Janelle at times in school. (Jones, see S-56, P-2) For the diagnostic period, Ms. Jones planned to make Janelle comfortable and then review academic work Janelle had completed with the tutor during the 2009-2010 school year, as well as conduct some baseline academic testing, writing prompts, and functional behavioral assessments. (Jones)
17. The second component of the proposed Extended Evaluation would take place in a five week summer program at the Baird Middle School. The program runs from 9 am to noon 3 days per week. Odette Nunes-Turcotte has been the summer program teacher for 4 years. She testified that 8 students would be attending the program during the summer but that, due to vacations, not all would be there each day. All the students have diagnoses of high functioning autism with associated difficulties with language pragmatics, weak social skills and social-emotional concerns. The students are entering 6-9th grades. Ms. Nunes-Turcotte uses a lot of “games” to reinforce the academic skills the students have learned during the school year and to build prosocial communication and behavior. They also practice time management, organizational skills, and building navigation to address anxieties and skill deficits relative to middle school. There is an instructional paraprofessional in the classroom. The adults have weekly consultation with the autism consultant Kathleen Salomone. In additional to the academic instruction, the school adjustment counselor at the Baird Middle School, Sean Kane, conducts an hour long social skills group three mornings a week. The goals of the activity-based social skills curriculum are to build relationships in community and to enhance communication skills. (Kane) The proposed Extended Evaluation also provides for Mr. Kane to work one-to-one with Janelle as a social coach or providing brief therapy. The Baird Middle School component of the Extended Evaluation also includes one hour of daily individual Lindamood-Bell tutoring from noon to 1 p.m. with Wendi Lawson. (Nunes-Turcotte; Lawson; Kane; Salamone: S-56, 23, P-1, 2; S-59; S-63; S-64)
18. The Parent rejected the Proposed Extended Evaluation and declined to send Janelle to any portion of it. She testified that it involved too many transitions for Janelle. (Parent)
19. On July 1, 2010, at the Request of the Parent’s advocate, Ludlow waived the Team process and developed an IEP for the 2010-2011 school year calling for Janelle’s enrollment in the Compass High School Program at Ludlow High School. (S-66; see ¶16) On July 27, 2010, the third day of hearing, the parent testified that she has not accepted the proposed IEP.
20. Dr. Bruce Waslick, a child psychiatrist, testified that he has been seeing Janelle bimonthly since September 2008. In the spring 2009, Dr. Waslick saw Janelle more frequently as she used crisis, partial hospital and in-patient mental health services to cope with increased school related stress. He recommended that she receive tutoring at home until a therapeutic day school could be arranged. Dr. Waslick testified that Janelle had limited skills to cope with severe levels of stress and anxiety associated with change, unpredictability, peers and fast paced environments. The anxiety overwhelms her otherwise good cognitive skills. He recommends that Janelle attend a small, self-contained therapeutic school staffed by individuals with specific training and experience in teaching students with Asperger’s Syndrome and mental health concerns. There needs to be on-site clinical staff for day to day management of Janelle’s depression/anxiety and for appropriate crisis response. Dr. Waslick stated that the intensity of intervention and support Janelle needs is unlikely to be found in any public school setting. He therefore recommended a private school setting to reduce Janelle’s triggering exposure to the peers, noise, and confusion of a large school environment. Dr. Waslick received all information supporting his recommendations from the Student and the parent. He did not have the opportunity to speak to Ludlow school personnel, other evaluators or clinical providers, to visit any proposed programs, or to review any assessments, progress or incident reports, or proposed IEPs. (Waslick)
21. Dr. Willoughby, the neuropsychologist who evaluated Janelle in July, 2009, testified at the July 2010 hearing. He had not seen Janelle since the previous July, had not reviewed any updated assessments, progress reports or IEPs and had not spoken with Ludlow school personnel. He explained and expanded upon the recommendations in the Neuropsychological Evaluation dated August 2009. Dr. Willoughby testified that there are three primary areas of educational intervention for Janelle: emotional/behavioral; social skills; and academic remediation. The single greatest factor inhibiting her educational progress is her emotional impairment, the depression/anxiety associated with autism spectrum disorders. Thus the focus of any educational placement must be therapeutic. The environment must be small, structured, quiet, calm, safe and predictable. There must be a person immediately available to Janelle to pre-emptively manage triggers and assess Janelle’s emotional state. There must be close collaboration with Janelle’s outside mental health service providers. Strategies for managing and improving emotions and behavior must be explicitly taught and infused into the curriculum. While Janelle does not need daily talk-based counseling, she does need a comprehensive mental health approach to her education. She also needs to have language based instruction and systematic reading remediation to increase her academic success. She needs to have direct social skills instruction and practice in small groups to address social weaknesses particular to adolescents with autism-spectrum disorders. Janelle needs all these components integrated into a single setting with as few transitions as possible. Dr. Willoughby was not aware that Janelle had not attended school during the 2009- 2010 school year. He recommended a re-evaluation to discern Janelle’s current emotional and academic status. (Willoughby)
22. Ingrid Jones, since 2007 the special education teacher for the Compass High School Program proposed for the 2010-2011 school year for Janelle, testified that she had reviewed the most recent assessments of Janelle, including the Neuropsychological Evaluation conducted by Dr. Willoughby, as well as the proposed IEP. She reported that the descriptions of Janelle’s learning strengths and weaknesses in those reports were consistent with her experience as Janelle’s teacher. She also stated that all the recommendations made in those reports, and in particular Dr. Willoughby’s recommendations, could be met in the Compass High School Program. According to Ms. Jones, the Compass High School Program is a substantially separate classroom designed to serve the social/emotional, sensory, and academic needs of high school age students with a diagnosis of high functioning autism. The goal of the program is to prepare students for re-integration into the mainstream and therefore students follow the regular high school curriculum in individualized tutorials and small groups. In addition to the regular academic offerings (math, science, history, English, etc.) the students take courses in language pragmatics and social interactions. These concepts and skills are carried over and integrated into regular academic instruction, all of which is language based and modified for the individual student need. In addition, the speech language therapist and the school social worker conduct weekly social skills group emphasizing language pragmatics. All courses and groups incorporate and teach explicit organizational strategies.
For the 2010-2011 school year the Compass High School Program will have 6 students, one teacher and one instructional aide. Occasionally other mainstreamed students “sit-in” the classroom as it is a “safe” calm space. The classroom is calm, quiet and highly structured with a predictable routine, an emphasis on positive emotional support and the development of social and communication skills. The setting and interventions are designed to address the anxiety and depression commonly experienced by students with autism spectrum disorders. There is on-going mental health support and crisis intervention. Ms. Jones stated that the first level of support and intervention is at the classroom level with trained and experienced teachers who know each student very well and can anticipate and react immediately to interpret, forestall, redirect or intervene when emotional or social challenges arise. Beyond the classroom there are always trained mental health support personnel available to the classroom on a check in basis or on a moment’s notice if necessary. The students and teachers in the Compass Program also receive regular consultation, supervision and assistance from Ludlow’s behaviorist, Inette Dunn, and autism specialist Kathleen Salamone. (Jones)
The classroom has an entrance separate from the regular High School entrance should a student need a quiet beginning. Students may also eat lunch in the classroom rather than going to the High School cafeteria. Computers are available in the classroom. (See also ¶16) Ms. Jones testified that due to specific recommendations in Janelle’s Neuropsychological Evaluation Ms. Jones would be trained in the Lindamood Bell Reading Program over the summer 2010 in order to meet Janelle’s needs for an individualized, systematic reading program within the Compass classroom.
Ms. Jones testified that Compass could and would provide Janelle with all the elements of a program Dr. Willoughby identified as appropriate for her: small student-teacher ratio; substantially separate; primarily serving students with high functioning autism; a significant mental health component; a language based curriculum; academic tutorials; a phonics based, multisensory reading program; a social skills/language pragmatics group; a social skills/emotional regulation group; flexibility in methods of production and response; flexible schedule and timing; and “therapeutic”. (Jones)
23. The Parent testified that Janelle’s mental health had improved significantly since her removal from school in May 2009. Since then she has “helped out” in a home-based toddler day care a few hours per week, and has followed her tutoring program. The Parent stated that she would like Janelle to attend a private therapeutic school which meets the recommendations of Dr. Waslick and Janelle’s therapist, Ms. Katz. The Parent has identified two private schools acceptable to her: Milestones and Intensive Education Academy. (Parent; P-106; P107)
FINDINGS AND CONCLUSIONS
There is no dispute that Janelle is a student with a disability entitled to receive a free, appropriate public education pursuant to 20 U.S.C.§1401 et seq and M.G.L. c71B nor about her learning profile or needs. The issue here is whether Ludlow has appropriately discharged its obligation to this Student. After careful consideration of all the evidence presented at the hearing, and of the arguments of the parties, it is my determination that it has. My reasoning follows:
The IDEA 2004 and the Massachusetts special education law require a school district to provide a free, appropriate public education to its resident students with disabilities. A free, appropriate public education is one that is tailored to meet the student’s unique learning needs and is reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment. Lenn v. Portland School Committee , 998 F.2d 1083 (1st Cir. 1993). Generally, the party challenging the adequacy of the student’s IEP and seeking an alternative placement has the burden of proving its position by a preponderance of the evidence. Schaffer v. Weast , 126 S. Ct. 528 (2005). Here, however, the school district is seeking a declaration that the programs it has proposed for Janelle would meet the FAPE standard. As the party seeking relief from the BSEA Ludlow then has the burden of persuasion. I find that it has met its burden on each of the four question presented herein.
I.) 2009-2010 IEP
Ludlow showed that the IEP it offered to Janelle on November 24, 2009 pursuant to meetings held on May 26 and September 11, 2009 met the substantive recommendations of all evaluators for a self-contained, therapeutic, language based program geared to the needs of the students with high functioning autism and significant emotional and social impairments. Ludlow also demonstrated that its proposed 2009-2010 IEP could have been implemented either in the Compass Middle School Program in Longmeadow, Janelle’s last accepted placement, or at the Baird Middle School in Ludlow. As the Parent declined to re-enroll Janelle in the Compass Middle School, Ludlow appropriately focused on implementing the IEP at the Baird Middle School. (Manchester; Cerutti) I rely in particular on the testimony of Ms. Manchester, the teacher in the therapeutic SIP classroom proposed for Janelle, that the setting, services and accommodations recommended by Dr. Willoughby were available in the SIP classroom. There is no credible evidence in this record to the contrary. Although the Parent averred that the SIP classroom was inappropriate for Janelle because of its location within a larger regular middle school (see also testimony of Dr. Waslick), and because no trained, licensed mental health professionals were located within the classroom at all times, neither of those recommendations was made by Dr. Willoughby or by any member of Teams that developed the 2009-2010 IEP.2
There are significant procedural difficulties with the 2009-2010 IEP however. For one thing, the proposed IEP was not delivered to the Parent until more than two months after the September 11, 2009 Team meeting. Despite the lapse of time in the production of the IEP document, the Parent was aware of the proposed placement in the SIP classroom at the Baird Middle School, had visited the classroom, understood that it was available to Janelle throughout the 2009- 2010 school year and chose to continue home tutoring.
The proposed 2009-2010 IEP also has obvious drafting errors: it does not set out the location or name of the school or program in which the services will be delivered; it does not set out a full day of academic services consistent with the self-contained nature of the proposed classroom, it lacks explicit social skills and social communication goals although these are primary recommendations for Janelle as well as primary components of the program described by Ms. Manchester; and it fails to list all the available therapeutic and supportive services identified as integral components of the program by school witnesses. However, it is clear from the testimony of the teachers and the parent that the items missing from the IEP document were not missing from the other information shared with the Parent through visits, Team meetings, and discussions with Baird Middle School and special education personnel. The uncontroverted evidence supports a finding that the Parent had sufficient relevant information on which to base her decision to reject the proposed SIP placement and that no significant procedural harm flowed from the poor draftsmanship. Nonetheless, the document does not inspire confidence.
As the Student had an appropriate placement actually available to her at all times and was receiving home tutoring at the Parent’s election, no educational harm can be presumed to flow from these errors. The parent did not prove that Janelle suffered any actual educational deprivation caused by the timing or drafting deficiencies of the 2009-2010 IEP. Therefore no relief is available or appropriate.
II.) Home-Hospital Education Statement
The Parent complained that Ludlow did not adequately fulfill its obligation to provide a home tutoring program for Janelle during the 2009-2010 school year. She asserted that the tutors were frequently absent, ill-prepared to meet Janelle’s special learning needs and not appropriately licensed or certified. Ludlow responded that it was under no legal obligation to provide home tutoring to Janelle as the physician statements submitted by the Parent in support of such a program did not satisfy the regulatory requirements. Ludlow stated that it contracted with a tutoring services company, Education Inc., to provide Janelle with continuous 10 hour per week tutoring due solely to its concern for Janelle’s educational status and progress after she was withdrawn from school. Ludlow offered to make up tutoring time missed due to tutor absences. (S-28, 40, 42, 49; P-40)
A review of the Physician’s Home-Hospital Education Statements completed by Dr. Waslick, Janelle’s supervising psychiatrist, and submitted to Ludlow on June 3, 2009 and March 12, 2010, indicates that they do not meet regulatory criteria for provision of home tutoring. A school district must provide educational services to a student who, for medical reasons, must remain at home for more than 14 days. 603 CMR 28.03 (3) (c). The Department of Elementary and Secondary Education issued guidelines to physicians and school districts seeking to provide home tutoring services to students.3
These require that the student’s treating physician indicate on the state prescribed form, 28R/3;
the date on which the student’s confinement began;
the medical reason for the confinement;
the expected duration of the confinement;
what medical needs should be considered when planning the home/hospital services.
While the Home-Hospital Education Statements submitted on Janelle’s behalf explain her medical condition, they do not indicate the “expected duration of confinement” for medical reasons as required. Instead the statements indicate that Janelle’s condition is indefinite and dependent on the educational setting she attends. It is not possible to discern from the statements submitted the length of time Janelle would be unable to leave home because of her medical condition. Nevertheless Ludlow accepted the statements and provided tutoring to Janelle for the entire 2009-2010 school year, Ludlow also proposed providing tutoring services during the summer 2010, to compensate Janelle for time missed due to tutor absences throughout the school year. The parent rejected that offer. (Tillotson; Parent) Therefore I find that in these unique circumstances Ludlow appropriately met its special educational responsibilities to Janelle throughout the 2009-2010 school year.
III.) Extended Evaluation
By May 27, 2010, Janelle had been out of school for more than a year. The Parent had rejected every educational option proposed by Ludlow: a total of 8 in- district, collaborative or private day therapeutic programs. The Parent had not responded to requests for updated information or assessments. It was reasonable for the Team to conclude that current information about Janelle’s educational status would be critical to developing a responsive IEP. It was also reasonable for the Team to attempt to secure that information in a setting that met the then current educational recommendations of Dr. Willoughby and was immediately available. In other words, the information available to the Team about Janelle, and about the settings and services she required, supported the development of an extended evaluation. The timing of the proposed evaluation, the end of the school year, permitted the Team to obtain assessments and input from a wider variety of service providers in a number of settings than might otherwise have been possible. (See ¶ 16, 17) This information would have been helpful to all Team members seeking to plan for Janelle’s re-entry into a school environment.
While the Parent and Dr. Waslick objected to the many potential transitions inherent in the “split” Extended Evaluation, both acknowledged that current educational information would be important to developing an appropriate IEP. The parent was aware that she could accept one of evaluation placements, Baird Middle School or the Compass High Program, to reduce the number of transitions. She declined, asserting that Janelle could only be evaluated in the setting in which she would be placed for the long term. She hoped this would be IAE or Milestones. I find that the proposed extended evaluation meets the requirements of 603 CMR 28.05 (2) (b). It provides for services recommended by Team participants and evaluators in settings and with personnel appropriate to, and capable of, delivering those services. It also sets out questions particularly designed to elicit information necessary to developing a school year IEP. While the fact that the evaluation period is split between two programs could be problematic as feared by the Parent, it could also give the Team, and Janelle, significant information about the different settings that could be useful for future planning. There is nothing in the proposed extended evaluation that is unnecessary, unwarranted or inappropriate.
Therefore I find that the proposed Extended Evaluation for the summer 2010, is reasonably calculated to ensure the delivery of a free, appropriate public education to Janelle.
IV.) 2010-2011 IEP
The proposed 2010-2011 IEP was developed without a Team meeting at the request of the Parent’s then advocate. Nonetheless it is clearly based on all the information that had been available to the Team in May 2010 and, due to the rejection of the proposed extended evaluation, had not been altered or supplemented. The proposed 2010-2011 IEP incorporates the most recent educational recommendations in the record, those of Dr. Willoughby, as well as earlier assessment findings of Ludlow school personnel. It provides for the substantially separate, therapeutic, classroom with very small group, language- based academic instruction, and direct social skills, pragmatic language, and emotional regulation skills instruction, support and practice specifically designed for students with high functioning autism as recommended by all evaluators. It also offers the recommended tutorials in systematic reading programs, individual counseling and on-site scheduled and crisis mental health support. None of these elements was challenged by the Parent. The Parent contends that the proposed Compass High School Program is inappropriate for Janelle because it is not in a stand-alone private setting. She points out that both Dr. Waslick and Janelle’s individual therapist, Jane Katz, recommended a small, private therapeutic school placement for Janelle. I give relatively little weight to their recommendations in this regard because neither has observed the program(s) proposed for Janelle, has seen her in a school setting or has spoken to any Ludlow school personnel about Janelle or school services. Both have based their opinions about the appropriateness of the proposed Compass Program on parental reports which I have observed to be unreliable. Furthermore, the Parent also rejected proposed stand alone therapeutic programs endorsed by Janelle’s mental health service providers in favor of alternate programs which neither she nor Janelle’s evaluators and mental health providers nor school personnel knew much about. I also note that other than its location in a public high school building, the Compass High School Program contains all services and elements recommended by Dr. Waslick.
There being no substantial evidence to the contrary, I find that Ludlow has carried its burden of proving by a preponderance of the evidence that the 2010-2011 IEP proposed on July 1, 2010, is tailored to meet Janelle’s unique social, emotional, behavioral, academic, and communication needs as identified consistently by all evaluators, and to provide the recommended services and setting that will ensure that she makes educational progress consistent with her considerable potential.
In reaching this conclusion, I rely particularly on the report and testimony of Dr. Willoughby, the testimony of Dr. Waslick, and the testimony of Ms. Manchester, and Ms. Jones, all of whom I found to be insightful, candid experts in their respective fields and highly sympathetic to Janelle’s position.
ORDER
The 2009-2010 IEP proposed by Ludlow Public Schools was reasonably calculated to ensure a free appropriate public education to Janelle in the least restrictive setting. The procedural deficiencies of that IEP did not cause any educational harm to Janelle or significant deprivation of IDEA rights to her Parent. Furthermore, Ludlow Public Schools extended home tutoring services to Janelle throughout the 2009-2010, despite having no legal obligation to do so. Therefore any parental claim for compensatory education arising from the 2009-2010 school year is not supported by the evidence in this record.
The Extended Evaluation proposed as a result of a Team meeting on May 27, 2010 was a reasonable and appropriate response to the information about Janelle available to the Team at the time, and to the actions and requests of the Parent. The proposed Extended Evaluation provided services and settings consistent with the recommendations of evaluators and posed questions that were appropriately drawn to fill in gaps in Team knowledge and understanding in order to aid the development of a new IEP.
The proposed 2010-2011 IEP calling for Janelle’s placement in the Compass High School classroom at the Ludlow High School is based on and consistent with the clear weight of information available to Ludlow Public Schools and is reasonably calculated to ensure a free appropriate public education to Janelle.
By the Hearing Officer
_________________________
Dated: August 31, 2010
1
“Janelle” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
Dr. Waslick’s recommendation for an out-of-public school setting and licensed mental health workers within the classroom was available to the Team only through his testimony at the hearing.
3
DESE Guide to Implementation of Educational Services in the Home or Hospital can be found at www.doe.mass.edu/pqu/ta/hhep-qa-html