COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Luke1
BSEA #03-1373
DECISION
This decision is rendered pursuant to MG.L. Chapters 15, 30A and 71B; 20 U.S.C.§ 1400 et seq .; 29 U.S.C. § 794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on March 29, 30 & 31; April 1 & 6; and May 11, 2004 at the Bureau of Special Education Appeals in Malden, MA. The record was left open for receipt of final exhibits and written final arguments until June 30, 2004.
Those in attendance were:
Father
Mother
Kate Hochheiser Family Advocate
Lois Carra Neuropsychologist, Center For Children With Special Needs, New England Medical Center
Phoebe Adams Educational Specialist, Center For Children with Special Needs, New England Medical Center
Madeline Nathan Psychologist
Ann Woodbury Psychologist
Lisa Larrivee Family Therapist
Don Martel Home Consultant
Thomas Reilly LABBB Collaborative
Renee Mittallinan Attorney Gavin’s Office
Jennifer Gavin Attorney For Parents
David Magee Director of Special Education, Newburyport Public Schools
(hereafter NPS)
Eileen Savage-Creedon Consulting Psychologist, NPS
Christine Ogilvie Special Education Teacher, NPS
Shawn Flaherty Special Education Teacher, NPS
Linda Aganski Social Studies Teacher, NPS
Debra Phinney Fifth-Sixth Grade Teacher, NPS
Darwin Gillette School Counselor, NPS
Maurice Willard House Coordinator, NPS
Laurie Smith School Consultant/Director, Camp Good Times
Barbara Kyle Home Consultant, NPS
Jay Murphy Wellness Teacher, NPS
Lynda Campbell Job Coach Coordinator, NPS
Christine Astuchio Job Coach, NPS
Alyssa Walker Paraprofessional, NPS
Marlene Shahian Paraprofessional, NPS
Beth Ross Attorney Sowyrda’s Office
Mary Ellen Sowyrda Attorney For NPS
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labelled P-A1 through P-A76 and P-B1 through P-B49; NPS’ Exhibits labelled S-1 through S-116; and approximately 30 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Luke is a 14 year old boy who resides with his parents and 2 siblings in Newburyport, MA. Luke currently attends Newburyport High School as a 9 th grade student. Luke attended the Newbury Public Schools through 3 rd grade as a school choice student. He transferred to his home school district, NPS, for fourth grade and has been in NPS since that time through elementary school (grade 4), middle school (grades 5 through 8), and now high school. He has been a special education student for virtually his entire educational career, functioning under various Individual Education Plans (IEPs). (See testimony, Father; Magee; P-B6, B8, B49; S-1, 2,3,4, 5,6,7,8,9,10, 98, 101.)
Parents essentially accepted all NPS’ IEPs/Amendments thereto for Luke’s 4 th -5 th -6 th grade years (S-5,6,7,8,9,10). For Luke’s 7 th grade IEP 6/02-5/03 (S-4) Parents accepted the IEP in general, accepted the placement decision, but rejected portions of the IEP in a letter dated 9/04/02 (P-B49). The team re-convened in October 2002 and promulgated an IEP covering 10/02-10/03 (S-2). This IEP was accepted in general with portions rejected and the placement decision rejected in a letter from Parents dated 11/25/02 (P-B7). On February 10, 2003 the team reconvened to consider the independent evaluations performed by the New England Medical Center-Center for Children with Special Needs (P-A12, A13; S-13,16,19,23,27,31) and on March 10, 2003 to develop a new IEP. This IEP (P-B6, B48; S-1B,2 3) covered 2/03-2/04. In a letter dated 3/31/03 Parents accepted the occupational therapy services proposed but rejected all other portions of the IEP, as well as the proposed placement (P-B6, B48).3 A subsequent team meeting was held on June 9, 2003 and an Amendment to the 2/03-2/04 IEP was promulgated which increased consultation services and changed Luke’s summer placement. On June 19, 2003 Parents accepted the summer placement but rejected the school placement and services. (See P-B6, B-48; S-1A). On August 22, 2003 Parents accepted the last IEP and the last IEP Amendment (covering the time period 2/03-2/04). However, on September 19, 2003 Parents rejected the last IEP and IEP Amendment (covering the time period 2/03-2/04) which they had accepted one month earlier. (See P-A63, P-B6, B48; S-1B, 106; testimony, Magee.)
On February 12, 2004 the team met and developed an IEP for 2/04-2/05. There are 2 service delivery grids for this IEP: 1) 2/04-6/04 which reflects the time period Luke would remain at NPS’ Nock Middle School finishing his 8 th grade year; and 2) 9/04-2/05 which reflects the time period Luke would be attending Newburyport High School ( P-B8; S-101). Parents rejected this IEP and the proposed placements through counsel on March 7, 2004 (P-B48).
Meanwhile, on May 12, 2003 Parents’ Attorney had requested a hearing before the Bureau of Special Education Appeals (BSEA), the case was assigned to Hearing Officer Sara Berman, and a hearing was scheduled for June 2, 2003. Postponements were requested, a pre-hearing conference took place on July 15, 2003 and hearing dates were scheduled for September 4, 11, & 16, 2003. On July 18, 2003 this case was administratively re-assigned to Hearing Officer Raymond Oliver. On August 27, 2004 Parents requested a 4 month postponement and the parties agreed to a pre-hearing conference on October 21, 2003 with hearing dates in January or February 2004. During a conference call on September 25, 2003 the parties agreed to hearing dates of January 27 & 29 and February 3, 2004.4 In January 2004 numerous motions, requests and oppositions thereto were filed, including Parents’ motion to postpone the hearing an additional 6-12 weeks. Several conference calls were held during January 2004. On January 23, 2004 NPS agreed to the postponement of the hearing. On January 27, 2004 the parties participated in a final pre-hearing conference and hearing dates were set for March 11, 29, 30, 31 and April 1, 2004. Several conference calls were held in February and March 2004. Due to witness scheduling difficulties, the March 11, 2004 date was dropped and April 6, 2004 was added. A final date of May 11, 2004 was added when it became clear that the hearing would require a 6 th day to conclude testimony.
ISSUES IN DISPUTE
1) Does NPS’ proposed 2/04-2/05 IEP for Luke at NPS’ Nock Middle School (NMS) for 2/04-6/04 and at Newburyport High School (NHS) for 9/04-2/05 appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2) If not, would placement of Luke at the LABBB Collaborative Program at Belmont High School in Belmont, MA appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment?
3) Is Luke entitled to compensatory services?
STATEMENT OF POSITIONS
Parents’ position is that NPS’ currently proposed IEP for Luke at NMS and NHS is inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. Patents contend that Luke requires an out of district placement at the LABBB Collaborative Program at Belmont High School in order to receive FAPE in the least restrictive educational environment. Parents also contend that Luke is entitled to compensatory services dating back 3 years to May 2000.
NPS’ position is that its current IEP for Luke at NMS and NHS is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. NPS contends that Luke does not require the restrictiveness of an out of district placement in order to provide him with FAPE. Further, NPS contends that the LABBB Program at Belmont High School is inappropriate to address Luke’s special education needs and would not provide him with FAPE. Finally, NPS contends that Luke is not entitled to compensatory services.
PROFILE OF STUDENT
Luke has been extensively evaluated via NPS evaluations, independent evaluations and private evaluations. A neuropsychological evaluation was administered in March 1999 at North Shore Medical Center (P-A19; S-15) by Psychologist Ann Woodbury when Luke was 9.2 years old. On the Stanford-Binet Intelligence Scale-Fourth Edition (SB-IV) Luke scored within the low average range of intellectual functioning (Composite Score of 85). On the Kauffman Test of Educational Achievement (KTEA) Luke, then at a 3.7 grade level, received the following grade equivalent scores in the following academic areas:
KTEA – Subject Areas Grade Equivalent Scores
Reading Decoding 3.6
Spelling 3.0
Math Applications 1.0
Math Computation <1.0
Dr. Woodbury also performed social-emotional-projective testing and adaptive skill assessments.
In her conclusions, Dr. Woodbury noted, in pertinent part:
… His complex combination of skills and deficits is not simply described by DSM-IV categorization. The best diagnostic fit at this time appears to continue to fall within the spectrum of pervasive developmental disorder (because of his unusual interactive style/inconsistent social understanding; poor language pragmatics; repetitive behaviors, and poor play and adaptive skills); however attention deficit hyperactivity disorder (ADHD), obsessive compulsive disorder (OCD), and Tourette’s are part of his profile as well…. While he is more contained at school and within a routine and with one to one support, his adaptive behavior in less structured, less predictable situations that call for a degree of independence or problem solving/task execution is quite poor…. His learning profile places him at risk for trouble with increased academic demands (i.e. increased organization, symbolic/conceptual understanding, independence), requiring a continuing shift in goals and focus toward functional goals… [Luke’s] educational team should continue to meet to develop an appropriate educational plan this year as well as middle school plans. It is felt that in the coming year, an inclusion model would likely provide the most suitable framework; however, middle school placement will need to be in a more self-contained protected environment….
(See P-A19; S-15 for the complete Woodbury evaluation.)
In the spring of 2001 Luke, then 11 years 3 months old, received a 3-year evaluation from NPS. Psychological testing was administered by Psychologist Richard Shulik (P-A16; S-14) On the Wechsler Intelligence Scale for Children- 3 rd Edition (WISC-III) Luke received a Verbal IQ of 81; a Performance IQ of 87; and a Full Scale IQ of 83. All of these scores placed Luke within the low average range of intellectual functioning. Dr. Shulik also performed personality/emotional assessments and a memory assessment. In his Discussion and Recommendations, Dr. Shulik found, in pertinent part:
First, the findings support the impression that [Luke] has a disorder that falls within the autistic spectrum. Children who fall at the “mild” end of that spectrum are usually given diagnoses of pervasive developmental disorder or Asperger’s Syndrome…. This examiner believes that the ideal program would provide a small classroom setting in which much individual attention is available, but it would also provide participation in mainstream activities. Such a program would enable [Luke] to enjoy “the best of both worlds.” The ideal program would include children whose strengths and weaknesses closely match those of [Luke], and it would be staffed by professionals who have specific training and experience in working with children who fall upon the autistic spectrum. By the same token, it would provide exposure to non-impaired children who can serve as social “role models” for [Luke]. A program, which is comprised exclusively of handicapped children, would entail certain risks. Among these would be the loss of contact with intact children. [Luke] is, indeed, sensitive to the behavior of children to whom his is exposed. Mrs. Creed notes his chameleon-like-quality,…
(See P-A16; S-14 for complete Shulnick evaluation).
An educational evaluation was administered to Luke by Courtney Moran of NPS as part of his 3 year evaluation (P-15; S-21). Luke was administered the Wechsler Individual Achievement Test (WIAT). Luke, then at a 5.7 grade level, received the following scores in the following subject matter areas:
WIAT Subject Area Standard Score Percentile Rank Grade equivalent5
Reading
Basic Reading 111 77- High Av. 7.4
Reading Comprehension 91 27-Average 3.9
Mathematics p>
Mathematics Reasoning 86 18-Low Av. 3.8
Numerical Operations 71 3-Low 2.9
Writing p>
Spelling 95 37-Average 5.0
Written Expression 81 10-Low Av. 1.2
Over 4 dates from September-November 2002 Luke, age 12.9 and beginning 7th grade, underwent an independent evaluation at New England Medical Center-Center for Children with Special Needs (CCSN). (Refer to P-A12 & P-A13 and S-13, 16, 19, 23, 27 and 31 for the various evaluations performed including neuropsychological; educational; speech-language; and occupational.) In the combined evaluation summary (P-A13; S-31) CCSN noted, in pertinent part:
On Neuropsychological testing [Luke] showed low average cognitive functioning with variable performance on the entire evaluation, ranging from well below average to well above average. Within the context of low average intelligence, [Luke] did best when he was not faced with too much detail or complexity….
On the Speech-Language evaluation [Luke] showed aspects of both receptive and expressive language weaknesses. He also showed significantly reduced social communication skills.
On the Educational evaluation [Luke] showed widely variable academic skills ranging from the 3 rd to 8 th grade range with weakness in math, written expression and reading and relative strengths on a task of phonetic decoding.
Conclusion: [Luke’s] atypical profile is consistent with his diagnosis of Autism Spectrum Disorder/Pervasive Development Disorder (PDD). He has pervasive behavioral/developmental problems including poor adaptive skills, poor social awareness/perception, language weakness, perceptual motor weaknesses, maladaptive behavior (lying, stealing, swearing, encopresis, perseveration/self stimulation) that are consistent with this disorder. Further, he has significant executive function weaknesses….
Placement in a substantially separate language based program is suggested. [Luke’s] program should incorporate social skills throughout his day, emphasize comprehension and thinking skills and promote independence. Use of language based instruction and functional application of skills should help [Luke] to make better connections in his learning. Peers should be of similar cognitive abilities….
In May 2003 Dr. Eileen Savage-Creedon, consulting psychologist to NPS, performed a psychological evaluation of Luke specifically in the area of adaptive behavior (P-A8; S-12). In her Summary and Recommendations Dr. Savage-Creedon noted, in pertinent part:
Functional behavioral skills appear to vary greatly, dependent upon the setting and level of structure. There is consistent discrepancy between [Luke’s] independent functioning levels and most marked, his maladaptive behaviors within his home environment and school environment. He appears to be functioning most optimally within the school and community environments but appears to be unable to carry over or generalize these skills to his home environment. There are many ways to understand this discrepancy (differences in structure, expectation, familiarity, etc.), but what seems most helpful is to acknowledge the discrepancy as an area of need and attempt to address it. However, given [Luke’s] diagnosis of PDD it is reasonable to expect that he will be functioning significantly below his same ages peers… (See P-8; S-12 for full Savage-Creedon evaluation.)
CCSN Educational Specialist Phoebe Adams conducted an educational evaluation of Luke in September 2002 as part of Luke’s independent evaluation (P-A13; S-19). Luke was than at the beginning of his 7 th grade year. On June 17, 2003 Ms. Adams performed an updated educational evaluation of Luke (P-A6; S-18). Luke was then at the end of his 7 th grade year. Ms. Adams administered the Wechsler Individual Achievement Test- 2 nd Edition (WIAT-2) and the Standardized Reading Inventory (SRI) on both occasions. Luke’s grade equivalent scores on the various subject areas of these testing instruments at these 2 points in time is delineated below:
WIAT-2 9/02-Grade Equivalent Score 6/03-Grade Equivalent Score
Word Reading 5.7 8.2
Pseudoword Decoding 8.8 8.2
Numerical Operations 3.0 3.0
Math Reasoning 3.1 3.2
Spelling 5.2 8.2
Written Expression Unscorable6 4.2
SRI p>
Oral Reading 5 th grade instructional level 5 th -6 th grade independent
level
Reading Comprehension 4 th grade low instructional level 5 th grade instructional
level
PARENTS’ PROPOSED PROGRAM
Parents propose that Luke be educated at the LABBB Collaborative Program at Belmont High School. The LABBB Collaborative is a collaborative of five towns-Lexington, Arlington, Burlington, Bedford, and Belmont-with various programs operated in the public schools of the member towns. LABBB is a public school based program for students with developmental challenges, providing traditional academics, functional and life skill academics, independent living skills instruction, and recreational, vocational and supportive services through the least restrictive environments. In addition to students from its member towns, LABBB accepts out of district students on a tuition basis if there are openings/spaces available. Students represent a diverse population with a wide range of abilities and challenges in the cognitive, sensory, motor, language and social/emotional domains.
The LABBB Program at Belmont High School (BLP) is a learning center satellite of the Lexington LABBB program and serves high school students from the ages of 14-22. School hours are 8:30 A.M.-3:30 P.M. Monday through Thursday and 8:30 A.M.- 2:00 P.M. on Fridays. It is an eleven month program. During July the BLP focuses on recreational and vocational activities. BLP is closed in August. BLP is ultimately a vocational program. It is designed to prepare students to be socially and emotionally appropriate for some type of employment or workshop. By age 16 students are involved in a vocational work experience at a supervised worksite at least 1-2 days per week, increasing to 3-4 days per week as the student gets older. Because he is only 14 years old, Luke would participate in non-paying pre-vocational activities. BLP works on social and pragmatic skills using work sites as learning environments. There is an academic skills component which is more extensive as the student is younger and the gradually becomes less as the student gets older and more vocationally/work involved. All academics are functional and vocationally oriented, customized around a student’s IEP and special education needs. Speech-language, occupational and physical therapies can take place at school or be integrated at worksites. There are also self advocacy groups such as young men’s groups, young women’s group and mixed group. Based upon a student’s functioning level men’s groups covers such areas as personal hygiene, human sexuality, appropriate social interactions, dating, and thought/feelings/actions. Counseling/therapy is provided by licensed independent clinical social workers or masters level interns and can be done on an individual or group basis.
Physically, BLP consists of one large classroom and two small rooms in the middle of Belmont High School. Students are grouped with peers based upon their social/emotional status. There is a wide range of special education needs/academic levels/abilities at BLP and in every classroom from 2 nd to 8 th grade levels. There could be three districts academic groupings within a single classroom (i.e., 3 groups of 5 students each with either a teacher or an assistant). Teachers are appropriately certified and/or credentialed. Students are integrated into regular education classes at Belmont High School where it is appropriate to do so. BLP has an after school social/recreational component whereby students can sign up for social activities twice per week from 3:30 P.M. – 5:00 P.M. to promote peer socialization in areas of common interest. These are considered fun activities and not an extended school program and parents or students are responsible for transportation home because school transportation usually does not run that late. There are also night time activities several times per week such as going to restaurants, the Burlington Mall or the movies, designed to be learning experiences and help students work on functional skills. Parents do drop off at 5:30-6:00 P.M. and pick up students at 10-10:30 P.M. All after school activities are staffed by BLP personnel.
Luke visited the BLP in the fall of 2003 for about 3½ hours. Based upon this visit, parental input, and Luke’s school folder/referral packet,7 BLP felt that Luke was appropriate for their program; that academically he was fairly high; and that socially he was in the middle. There are no current openings at BLP with the earliest possible opening potentially available in November or December 2004.
See P-A73; P-B3, B4, B5; testimony, Reilly.)
SCHOOL’S PROPOSED PROGRAM
NPS’ 2/04-2/05 IEP proposes that Luke be educated at NMS from 2/04-6/04 for the conclusion of his 8 th grade year and at NHS from 9/04-2/05 for his 9 th grade year.
Under the service delivery grid for the remainder of his 8 th grade year at NMS, the IEP provides Part A-Consultation Services as: Consultation between home school every 6 weeks (time unspecified); Behavioral/Community Consultation 50 hours per year; Occupational Consultation ½ hour per week; and Consultation from Laurie Smith 40 hours per school year. Under Part B-Direct Special Education and Related Services in the General Classroom the IEP provides: Academic Support 5 times per week for 45 minutes per day; and a 7 week summer program over the 2004 summer provided by Educational Consultants of New England (Camp Good Times). Under Part C-Direct Special Education and Related Services in Other Settings the IEP provides: Counseling 2x per week for 30 minutes each time plus as needed; Social Skills 5x per week for 30 minutes each day; Organizational skills 2x per week for 15 minutes each time; Language Lab 5x per week for 90 minutes each day; Math Lab 5x per week for 45 minutes per day; Speech-Language-Communication 2x per week for 45 minutes each time; and Occupational Therapy once per week for 30 minutes.
Under the service delivery grid for 9/04-2/05 at NHS, the IEP provides under Part A-Consultant Services: the same first 3 consultation services/time periods as the 2/04-6/04 service delivery grid. Under the 4 th consultation service the hours are increased from 40 to 80 hours per year with the consultant unidentified instead of Laurie Smith. Under Part B-Direct Special Education and Related Services in the General Education classroom the IEP provides: Team Taught World History 3x for 90 minutes each time. Under Part C-Direct Special Education and Related Services in Other Settings the IEP again provides counseling 2x 30 minutes each time and as needed and occupational therapy 1×30. Section C also provides the following services: Social Skills/Pragmatics 6x 30 minutes each time; Academic Support 6×90 minutes each time; English 3×90 minutes each time; Science 3×90 minutes each time and Math 3×90 minutes each time.8
Also, under Schedule Modification, the IEP provides for the 7 week summer program at Camp Good Times for extended year services over the 2004 summer; and extended day services/after school programming for 4 days per week – 2 days of vocational experience and 2 days of fitness/conditioning or sports. Under Additional Information, the IEP recommends that Luke’s home consultation program involve 2 aspects – community skills (currently a banking program) provided by his vocational coach; and a behavioral consultation provided by a mutually agreed upon behavioral consultant.
For 2/04-6/04 at NMS Luke attended Upward Bound, Ms. Ogilvie’s special education classroom, for structured homeroom, academic support, and Jumpstart.
Ms. Olgilvie, has a bachelors and masters degree in special education; is certified in special and regular education; has 6 years of special education public school teaching experience; and has been Luke’s teacher for the past 3 years. Jumpstart was Luke’s social skills class which dealt with the direct teaching of social skills. Academic support consisted of any necessary extra support for any class plus working on executive functioning and organizational skills, with such skills being broken down into small steps and practiced. There were a total of 10 students in Upward Bound with 4 paraprofessional aides assisting Ms. Ogilvie. The aide primarily assigned to Luke was Ms. Walke, who has a bachelors degree in elementary education. Ms. Walker worked with Luke 3 periods per day within Upward Bound, his special education language lab, and his special education math lab. Ms. Walker assisted Luke with homework and organizational assistance on class projects, especially from regular education social studies. Ms. Walker worked with Luke on a 1:1 basis for homework within Upward Bound and on a 2:1 basis in language lab and math lab. Ms. Olgilvie, Luke’s Upward Bound teacher, has a bachelors and masters degree in special education; is certified in special and regular education; has 6 years of special education public school teaching experience; and has been Luke’s teacher for the past 3 years.
Mr. Flaherty taught the language lab and the math lab. He saw Luke for 3 periods per day-2 language arts classes and one math class. One language lab class dealt primarily with reading/reading comprehension and the other language lab class dealt primarily with written language/writing. Project Read was used in both the reading and writing class. A speech-language pathologist was in the language lab for 2 periods per week. The student to staff ratio in the language lab was 6-8 students to 2-3 staff (Mr. Flaherty, Ms. Walker and the speech-language therapist when there). The student to staff ratio in math was 4-5 to 2. Mr. Flaherty has a masters degree in mental health counseling and is certified in special education. This is his 9 th year at NMS with 5 prior years experience at the Greater Lawrence Collaborative and 3 years before that at the Harbor School, a private residential special education school. Mr. Flaherty has been Luke’s teacher for the past 2 years.
Ms. Aganski was Luke’s regular education social studies teacher. She has a bachelors degree and masters degree in education and has 31 years of teaching experience. Class size was 24 students. Luke had an aide with him in social studies, either Ms. Cheyenne or Ms. Walker. Ms. Aganski has been Luke’s social studies teacher for the past 2 years.
Luke’s extended school day/after school program at NMS consisted of a vocational experience 2 days per week and a fitness/conditioning program 2 days per week. The vocational experience consisted of Luke working at a puppy farm as a kennel aide doing all of the work necessary to maintain/clean up/exercise the dogs; and a banking experience whereby Luke established a bank account, deposited money earned from the puppy farm into the account, and made withdrawals from the account when desired. These activities were supervised by Luke’s job coach coordinator, Ms. Campbell, who has 9 years experience consulting and providing assistance to students with the development and transition into paid employment within the community.
Ms. Campbell supervised one day per week at the puppy farm and coordinated the banking program. She has been Luke’s job coach/coordinator for the past 2 years. The other day at the puppy farm was supervised by Ms. Astuchio who has a masters degree in guidance counseling.
Luke’s 2004 summer program consisted of a 7 week pragmatic social skills summer program at Camp Good Times which is an integrated program with regular education peer models and special education students, most with Asperger’s Syndrome or non verbal learning disabilities. Camp Good Times is run by Ms. Smith who has a bachelors degree in elementary education, a masters degree in special education and is certified in special and regular education. Ms. Smith is also co-director of Educational Consultants of New England, which consults with both school systems and families. Ms. Smith has been working with children on the autistic spectrum for 14 years and this is her area of expertise. She has also been a public school teacher and the director of a private special education day school (Language and Cognitive Development Center). Ms. Smith is a PDD/Autism Consultant for NPS and has consulted regarding Luke for the last 3 years. Luke also attended Camp Good Times for the 2003 summer.
For 9/04-2/05 at NHS, Luke would receive Independence Development Center (IDC) classes taught by a special education teacher; Learning Center (LC) classes taught by a special education teacher; and co-taught classes taught by both a special education teacher and a regular education teacher. The IDC at NHS is a functional, direct instruction class for remediation and help with other classes and is analogous to Ms. Ogilvie’s Upward Bound program at NMS. Luke would receive LC classes in English, Math and Science with a student: teacher ratio of 6-8:1 in English and Science. Math would be either 1:1 or small group. The LC classes at NHS are analogous to Mr. Flaherty’s language/math labs at NMS. World History would be co-taught with a student: teacher ratio of 20:2. The speech-language pathologist runs the daily social skills pragmatics group at NHS which consists of 4-5 students with Asperger’s Syndrome/high functioning PDD and is analogous to Ms. Ogilvie’s Jump Start program at NMS.
(See P-B8; S-101; testimony, Magee; Ogilvie; Flaherty; Aganski; Walker; Campbell; Astuchio; Smith; S-66, 67, 68, 71, 75, 76, 77, 82, 93, 96.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Luke is a student with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature of Luke’s special education needs, although the manifestation of his special education needs are quite different in the home than they are in school. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon 6 full days of oral testimony over a 3 month period, the voluminous documentation introduced into evidence, and a review of the applicable law, I conclude that:
1. I. NPS’ proposed IEP for Luke at NMS/NHS was/is appropriate to address Luke’s special education needs so as to provide him with FAPE in the least restrictive educational environment with several modifications/amplifications delineated below;
2. II. Parents have failed to prove the necessity for an out of district placement to address Luke’s special education needs at this time, or that the BLP would appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment;
3. III. Parents are entitled to limited compensatory services based upon the facts of this case.
My analysis follows.
I.
Luke is a perplexing student. He has a complex constellation of disabilities including PDD and ADHD with many of the behavioral, communicative, social, and emotional concerns that such disabilities entail. However, he possesses low average intelligence, has areas of academic strength, and functions at the high end of the autistic spectrum. Parents and NPS see a totally different student. On Dr. Carra’s administration of the Vineland Adaptive Behavior Scale in November 2002 (P-A13; S-13) Parents placed Luke’s adaptive level overall within a 3-4 year old range. Luke was then 13 years old. On Dr. Carra’s social/emotional adaptive evaluation in November 2003 (P-A4) when Luke was 14 years old, on the Scale Of Independent Behaviors Parents reported skills primarily in the 3-7 year old range while NPS viewed Luke’s adaptive skills to be in the 10-11 year old range. (See also testimony, Savage-Creedon; Carra.) At home Luke exhibits numerous maladaptive behaviors (lying, stealing, rocking, scratching, soiling himself) while such behaviors are essentially non-existent at school. After 6 days of testimony I believe both Parents and NPS. Certainly Parents and Ms. Larivee , the family therapist who has gone into the home, have observed the behaviors which they have testified to. Based upon the testimony of virtually every school witness, it is similarly clear that NPS has not observed such behaviors within the school environment. The one witness who has observed Luke over at least a brief period of time in both the school and home settings is Mr. Martel, a behavioral consultant. Mr. Martel spent 12-15 hours in April-June 2003 observing Luke in both the school and home settings. Mr. Martel testified that he observed Luke in both the special education and regular education environment and that Luke interacted well with both special and regular education students; transitioned well between special and regular education classes; performed well in different school settings; was appropriately social and comfortable; and looked “normal in school like he fit”. Conversely, in observing Luke at home, Mr. Martel testified that Luke was so disabled that it was startling and that Luke displayed some bizarre behaviors at home. (See testimony, Martel.)
Parents and NPS are also diametrically opposed in their perceptions as to the type of program necessary to address Luke’s special education needs. Parents and their experts believe that Luke should be educated in an out of district, substantially separate, cohesive, intensive special education setting with other special education students who have similar needs. The emphasis of the program should be on social comprehension, consistent behavioral expectations through the day, and pre-vocational/vocational training to prepare Luke for the world of work. (See testimony, Father; Carra; Adams; Nathan.) NPS and their experts believe that Luke has performed very well within his public school environment; that he has progressed academically, socially, and vocationally at NMS in both his special education and regular education environments; and that he deserves to be educated in his home community in the least restrictive educational environment, where he can interact with/be integrated with regular education students who serve as role models for Luke. (See testimony, Magee; Savage-Creedin; Smith; Ogilvie; Flaherty; Campbell; Aganski.)
I make the observation that in 24 years as a Hearing Officer, I have rarely presided over a case that was so vigorously advocated and with such a degree of intensity from witnesses on both sides. Obviously, both sides feel passionately about the correctness of their perceptions and positions.
I conclude that NPS’ IEP and placements for Luke at NMS and NHS essentially address his special education needs so as to provide him FAPE and do so in the least restrictive educational environment as mandated by both state and federal special education law. A review of the IEP (P-B8; S-101; see also SCHOOL’S PROPOSED PROGRAM , above) reveals a comprehensive and flexible IEP/special education program which provided/will provide Luke with the individualized special education he requires within a structured, predictable educational environment. Luke receives/will receive small group special education instruction in most of his academic areas with special education certified, experienced teachers, while being mainstreamed into regular education in an area of relative academic strength (social studies/history), as well as non-academic areas which promote integration and modeling with regular education grade level peers. At NMS Luke had an aide which allowed him to function independently as much as possible, but was there to provide assistance and structure whenever necessary. Also, Luke has received/will receive extended school day vocational and recreational programming as well as extended year summer programming. Luke will also continue to receive a daily social skills/pragmatics class taught at NHS by the speech-language pathologist.
Based upon the testimony of Luke’s teachers, I find that Luke has made progress academically, socially, and emotionally over his last several years at NMS, especially over his last 8 th grade school year. Mr. Flaherty testified that in his language lab Luke reads and participates, bringing his good social studies knowledge into the reading/language class; that Luke reads 8 th grade texts with supports; and that it is hard to get a reading comprehension or inference question past him. Mr. Flaherty testified that Luke socializes with peers and is sought out by peers during breaks; that he has friends in school; that he is a happy and engaged student; and that he is respectful of school rules. Ms. Ogilvie testified that in her Jumpstart (social skills) class Luke was silly during 6 th grade but that during 7 th and 8 th grades he has taken a leadership role in class, offering valid imput, processing issues and speaking sensitively and eloquently. Ms. Ogilvie testified that Luke now shows a lot more independence and advocates for himself; that he has an incredible sense of humor which has evolved over the last 3 years; that he converses easily with adults and students; that the other students in her program look up to /respond to Luke; that Luke is able to problem solve; and that you would not know that Luke has PDD if you were not told.
Ms. Aganski testified that in her regular education social studies class behavior has never been a problem for Luke; that in 7 th grade Luke sometimes required redirection/focusing but that in 8 th grade he is focused, pays attention, raises his hand and volunteers in class, answers questions, and does his homework and class projects. Ms. Aganski testified that Luke is able to cognitively process 8 th grade social studies materials; that especially during 8 th grade she has observed Luke modeling from peers; that he works well within groups, is confident and has a voice; and that Luke benefits from being in regular education social studies with the supports he receives. Ms. Campbell, Luke’s Job Coordinator, testified that in the 2 years she has worked with Luke at the puppy farm he is capable, follows directions, remembers, and is responsible; that he is completely independent working at the puppy farm and does everything on his own; and that no special accommodations have been necessary. (See also testimony, Astuchio.) Ms. Campbell testified that in his banking program begun this year, Luke learned the banking transactions of deposit and withdrawal quickly; that he is inquisitive and intelligent; and that he has behaved appropriately and politely.
I place substantial weight on the testimony of Luke’s teachers cited in the two preceeding paragraphs. Mr. Ogilvie has taught Luke on a daily basis for several periods per day for the last 3 years. Mr. Flaherty has taught Luke on a daily basis for 3 periods per day for the last 2 years. Ms. Aganski has taught Luke on a daily basis for the last 2 years. Ms. Campbell has taught/interacted with Luke over the past 2 years on a twice weekly basis for 1 ½ years and on a weekly basis for the last semester. Therefore, Ms. Ogilvie, Mr. Flaherty and Ms. Aganski have been able to observe and evaluate Luke’s special and regular educational functioning on a daily basis for the last several years and have a close-up perspective on his day to day academic and social functioning in his educational settings at NMS over an extended period of time. Similarly, over the past 2 years, Ms. Campbell has been able to observe Luke’s vocational and interactive functioning outside of school over an extended period of time.
I have carefully considered the evaluations from CCSN and the testimony of Dr. Carra and Ms. Adams. Dr. Carra performed a neuropsyshological evaluation of Luke in November 2002; performed a social-emotional evaluation of Luke in 2003; observed Luke in his placement at NMS in 2003; observed his proposed NHS placement in 2004; and observed his proposed BLP placement in 2004. Ms. Adams conducted an educational evaluation of Luke in September 2002; observed his 7 th grade placement at NMS in the fall of 2002; and then re-evaluated Luke in June 2003. While advocating for an out of district placement, they found a number of positive aspects of Luke’s NMS placement and/or acknowledged them under questioning at this hearing. The CCSN evaluations have been acknowledged within Luke’s proposed IEP and a number of the CCSN recommendations have been incorporated into Luke’s proposed IEP. However, the observations done by CCSN evaluators have been snapshots in time of several hours or no more than the equivalent of one school day. When weighing these snapshots against 2+ years of daily observation/instruction/evaluation of Luke’s day to day functioning, I conclude that the NPS teacher’s perceptions of Luke are the more accurate in terms of his day to day academic and social functioning within his school environment.9
Further, Ms. Adams/CCSN administered educational testing in September 2002, the beginning of Luke’s 7 th grade year and again in June 2003, at the end of Luke’s 7 th grade year at NMS. She utilized the same testing instruments each time on the specific areas tested, specially the WIAT-2 and the SRI, thereby making any comparison of these scores more valid and precise. Based upon Ms. Adams’ testing, I find that Luke demonstrated significant progress in the areas of reading and written language. Over the course of his 7 th grade year, on the WIAT-2 Luke’s Word Reading improved for a 5.7 to 8.2 grade equivalent; Spelling improved from a 5.2 to 8.2 grade equivalent; and Written Expression improved from being unscorable (testimony Adams) to a 4.2 grade equivalent. Over the course of his 7 th grade year, on the SRI Luke’s Oral Reading improved from a 5 th grade instructional level to a 5 th -6 th grade independent level; and his Reading Comprehension improved from a 4 th grade low instructional level to a 5 th grade instructional level. (See PROFILE OF STUDENT , above.) Therefore, over his 7 th grade year at NMS Luke improved several grade levels in some areas of reading and written language and approximately 1 grade level in oral reading and reading comprehension. For a student of low average intelligence with significant disabilities, I find such progress to be quite remarkable.
While I have concluded that the NPS’ IEP essentially provides Luke FAPE, I find that it requires a number of modifications/amplifications to more precisely address Luke’s special education needs.
First, Luke had/will have an array of services and many different service providers in a number of different settings but there is no central coordination of Luke’s program. I find that Luke achieved success at NMS at least partially due to the experience his teachers gained with him over several years, their dedication to him, and Mr. Magee’s active involment in this case. Even so, there have been gaps in Luke’s program.10 With his move to NHS, Luke will be having all new classes in new surroundings with new teachers/service providers who do not have a history with him.11 In short, a person whose primary responsibility is to assure that all program pieces of Luke’s IEP are/remain in place becomes imperative. I conclude that Luke’s IEP/program at NHS requires a designated case manager to coordinate/oversee all aspects of Luke’s program and service delivery at NHS; to insure day to day consistency and full implementation of Luke’s IEP at NHS; and to serve as NPS’ Liason to Parents/home to assure continuity/consistent information flow between NPS and Parents. The 80 hour per year proposed by NPS for consultation may be sufficient, if utilized in a case manager capacity, but may also need to be expanded, if necessary. Such case manager should have professional training and experience in PDD/Autism and integration of such students within public school environments. If Ms. Smith, NPS’ current autism consultant regarding Luke and other NPS students, has the time and inclination to fulfill this role, she may be an appropriate professional for this position, given her history with Luke in NMS and for the past 2 summers through Camp Good Times. Dr. Savage-Creedon, NPS ‘consulting psychologist, who has evaluated Luke’s adaptive behaviors and observed him at NMS, might also be an appropriate choice. The parties may also wish to consider bringing in a new outside PDD expert with no history in this case to bring in a fresh perspective.
Second, it is obvious that Luke has not been able to generalize the knowledge and skills he has learned in/is able to utilize in both the school and community environments into his home environment. Luke clearly requires a unified behavior plan between school and home, and that home and school work together so that Luke receives consistent feedback from both environments regarding behavior, expectations, and problem solving techniques; and so that Parents receive assistance and appropriate interventions to deal with Luke’s maladaptive behaviors within the home environment. (See testimony Savage-Creedon; Smith; Carra; P-A8; S-4, 12). I conclude that Luke’s IEP requires a specific/identified home component, not simply “ Consultation between home and school every six weeks” and “Behavioral/Community consultation 50 hours per year.12 A behavioral consultant must be specifically identified, retained, brought up to speed regarding the discrepancy between Luke’s school/community behaviors and in home behaviors by both NPS and Parents, and observation/consultation/services within the home should be implemented as soon as possible. Such services should be implemented for a minimum of 4 hours per month, to be apportioned as deemed most appropriate by the behavioral consultant and Parents. These home services are in addition to the Behavioral/Community consultation services of 50 hours per year.
Third, all of the evaluations performed on Luke show his math functioning to be extremely low. In the 2 areas of math evaluated by CCSN/ Ms. Adams in September 2002 and June 2003, Luke demonstrated no progress in either numerial operations or math reasoning, remaining at a low 3 rd grade level (See PROFILE OF STUDENT , above.) Even in his day to day math functioning, Mr. Flaherty testified that Luke functions at about a 10-11 year old/5 th grade level; that his skills are variable and have not been consolidated; and that he requires a great deal of support. I conclude that Luke needs to receive his math instruction in a 1:1 special education tutorial setting with the emphasis on functional, daily life skills math. (See also testimony, Savage-Creedon; Smith.)
Fourth, the last NPS team evaluation of Luke was performed in the spring of 2001, over 3 ½ years ago. I acknowledge that Luke received an independent evaluation from CCSN in the fall of 2002; that there has been an updated educational evaluation from CCSN/Ms. Adams in the late spring of 2003; and that there have been updated social/emotional/adaptive behavior evaluations over 2003 by NPS/Dr. Savage-Creedon and CCSN/Dr. Carra. (See PROFILE OF STUDENT , above; P-A4.) However 603
CMR 28.04 (3) mandates the school, with parental consent, to conduct a full 3 year re-evaluation, consistent with the requirements of federal law. Further, all evaluations of Luke of any type are mostly over 1 year/ at least 1 year old. I conclude that NPS should perform a comprehensive 3 year re-evaluation of Luke as soon as possible.
Fifth, I conclude that NPS should perform/arrange to have performed a comprehensive vocational evaluation of Luke as soon as possible. Parents clearly wish Luke’s education to have a vocational focus. NPS has provided Luke with a 2 year vocational experience while attending NMS and some type of vocational experience will continue at NHS. Everyone at this hearing who testified regarding Luke at the puppy farm testified that Luke excelled at/took pride in/enjoyed his vocational experience at the puppy farm over the last 2 years. However, in the voluminous written materials submitted into evidence, there is no documentation of any vocational assessment or evaluation of Luke’s vocational skills or areas of interest. In her May 2003 psychological/adaptive behavior evaluation of Luke, Dr. Savage-Creedon noted under her Impressions and Recommendations (P-8; S-12):
The school should be recognized for taking the initiative to extend [Luke’s] educational programming into community/work settings. [Luke] will benefit from continued opportunities in this area. During the next school year it would be appropriate to conduct a vocational evaluation to delineate his vocational strengths and areas of need . Programming should continue to target this as an area of intervention. Emphasis added. (See also testimony, Savage-Creedon; Carra.)
II.
Given my findings in Section I above that the SCHOOL’S PROPOSED PROGRAM is/can be modified to provide FAPE, Parents have failed to prove the necessity of an out of district program to address Luke’s special education needs at this time. However, I feel compelled to make several observations regarding the BLP and its appropriateness, or lack thereof, for Luke.
First, the BLP is 46 ½ miles from Luke’s home and it would take approximately 1 hour & 10-15 minutes each way to travel from home to school and school to home (S-112; testimony, Father; Magee). Therefore, Luke would spend approximately 2 ½ hours
daily commuting to and from school. Even Dr. Carra testified that she wished BLP was closer. Father testified that Luke would require activities to keep him occupied during the long commute. 603 CMR 28.06 (8) (a) dealing with transportation services provides, in pertinent part:
The district shall not permit any eligible student to be transported in a manner that required the student to remain in the vehicle for more than one hour each way except with the approval of the team. Emphasis added.
Given the BLP daily schedule (See PARENTS’ PROPOSED PROGRAM , above), combined with the necessary commute time, Luke’s day would begin at 7 A.M. and end at 5 P.M. Monday through Thursday (10 hours per day) and on Friday begin at 7 A.M. and end at 3:30 P.M. ( 8 ½ hours). If Luke participated in BLP’s twice weekly after school/recreational component (See PARENTS’ PROPOSED PROGRAM , above), on those 2 days his day would run from 7:00 A.M. to 6:30 P.M. (11 ½ hours). I conclude that 8½ – 10-11½ hour days would certainly be counterproductive to providing FAPE to a 14 year old student with PDD, no matter how good the program.
Second, the breakdown of students currently attending the BLP (S-113, 114) shows the average age of the students attending the BLP in June 2004 was between 18-19 years of age. Luke is 14. Further, there is a wide range of disabilities within the BLP (testimony, Riley; Magee; S-92, 113), as well as a wide range of academic and functional abilities, from 2 nd to 8 th grade (testimony, Riley; Magee; S-92; PARENTS’ PROPOSED PROGRAM , above). Based upon the evidence provided, I do not find the BLP to be the cohesive, intensive, special education setting with other students who have similar needs (i.e., special education peers) advocated by Parents’ experts. Further, I note Dr. Shulik’s concerns regarding the risks entailed for Luke within a placement comprised of all special education students; his sensitivity to the behaviors of children to whom he is exposed; and his chameleon-like quality.13 (See P-A16; S-14; PROFILE OF STUDENT , above). Such concerns were similarly expressed by numerous NPS witnesses, particularly Dr. Savage-Creedon, who opined that given Luke’s high functioning levels it would be humiliating for him to be grouped with all special education students.
Finally, I note Parents’ concerns regarding Luke’s exposure to sex education at NMS and that they withdrew him from a sex education class and the sex education component of a health class over the 7 th & 8 th grade years (testimony, Father; Nathan). However, I further note Mr. Magee’s testimony regarding the inappropriateness of the sex education class he observed at BLP. (See also S-92.) Finally, I note that even Ms. Adams testified that such a lesson at BLP was not appropriate for Luke (testimony, Adams) and Dr. Nathan testified that it did not sound like an organized lesson, but chaotic.
Based upon the totality of evidence presented at this hearing, I do not believe that the BLP is an appropriate placement for Luke at this time.
III.
Parents contend that Luke is entitled to compensatory services dating back to May 2000. However, Luke’s IEPs were either totally accepted or essentially accepted until the 2/03 –2/04 IEP which, on 3/31/03, Parents rejected entirely, except for the occupational therapy services. (See STATEMENT /HISTORY OF THE CASE , above; testimony, Magee; Father.) I find that Luke’s stay-put placement as of 3/31/03 was the 10/02 – 10/03 IEP (S-2; P-B7; testimony, Magee) from 10/02 until August 22, 2003,14 when Parents accepted the 2/03-2/04 IEP and Amendment thereto, only to totally reject both one month later on September 19, 2003. (See STATEMENT/HISTORY OF THE CASE , above; P-B6, B48; S-1B, 106; testimony Magee; Father). Therefore, I conclude that any compensatory services would go back to 3/31/03 when Parents essentially rejected the 2/03-2/04 IEP or to any non-implementation of the 10/02-10/03 IEP essentially accepted on 11/25/02 (P-B7).
In March 2001, as part of Luke’s last 3 year evaluation by NPS, Mr. Magee performed a home assessment and developed strategies for an effective behavior intervention program in the home (P-A15; S-28). In Luke’s next IEP covering 6/01-6/02 (S-7), NPS proposed home consultation services for 4 hours per month. This IEP was accepted by Parents in September 2001. NPS selected Ms. Kyle to provide the behavioral home component. Ms. Kyle has a masters degree in special education; is certified in severe special needs; has a national certification in behavioral education; and
has a number of years experience teaching in public schools plus one year of teaching experience at NEC (The New England Center, a Massachusetts Department of Education approved private day and residential school for children with autism spectrum disorders). Ms. Kyle met with Parents and Luke during October-November 2001 and designed a behavioral plan for Parents to use in the home to target certain behaviors. When they met again in December 2001 nothing had changed because Parents had not implemented the plan. Several other behaviors were then targeted. Parents requested no more visits until after Christmas. Ms. Kyle attempted to contact Parents 3 times after Christmas. (See testimony, Kyle.) On February 1, 2002 Ms. Kyle sent this letter to Parents (S-64):
It is my understanding after our phone conversation that you will be working with a Behavior Specialist who is creating a level system for all your children. At this time we will postpone our home consultation as a result. If or when I can be of further assistance, please let me know.
Ms. Kyle testified that Parents were working with Mr. Martel with another child in the family and would now be working with the entire family. Parents never called Ms. Kyle after her 2/1/02 letter. (See testimony, Kyle; Father; S-16- a summary of Ms. Kyle’s involvement with Luke and his family.)
Every subsequent IEP promulgated by NPS until 2/04 offered a behavioral home consultation component of 4 hours per month (S-2,3,4,5; P-B7) or 50 hours per year (S-1A, 1B). The current IEP for 2/04 2/05 (P-B8; S-101) provides for a behavioral/community consultant for 50 hours per year. (See 2 nd Modification ordered by the Hearing Officer, above.)
On November 25, 2002 Parents wrote a letter to Mr. Magee (P-B7) essentially accepting and partially rejecting the 10/02-10/03 IEP (S-2) which provided for 4 hours per month of home consultation with a behavioral consultant. Parents wrote on page 1 of that letter (P-B7):
In general we accept the proposed IEP but we reject those portions of the proposed IEP as outlined in this letter.
Home consultation services were not rejected in the 11/25/02 letter. Indeed, on page 4 of that letter, Parents specifically wrote that they accepted the services and the service delivery grid. On page 5 of the letter Parents wrote:
It is our understanding that all aspects of the IEP that we have accepted will be implemented immediately. (See P-B7 for entire 11/25/02 letter.)
In a letter to Mr. Magee on March 31, 2003 (P-B6) rejecting all aspects of the 2/03-2/04 IEP (P-B6; S-1B, 3) except occupational therapy services, Parents wrote, in pertinent part:
By letter dated 11/25/2002, we partially accepted and partially rejected the proposed IEP that was developed as a result of the IEP meeting on 10/9/2002. In that letter, we fully accepted the services being offered on the service delivery grid (See page 4 of 5, Item #5 of that letter) and the school district has since been providing those services, with the exception of the home services. (At the Team meeting on 3/10/2003, you stated that we stopped the home services, and you referred to a letter dated 2/1/2002 from Barbara Kyle, Newburyport’s home consultant to us. As pointed out at the meeting, Barbara Kyle delivered services under a previous IEP. You offered the home service again for the current IEP at our 10/9/2002 meeting. We accepted the home service in the current IEP on 11/25/2002.)……
It is our understanding that Newburyport is obligated under “stay-put” in accordance with the last IEP (dated 10/9/02 to 10/9/03), including the home consultation, which was accepted in our letter of 11/25/02, and which has yet to be provided.
In a 4/1/03 letter from Mr. Magee (S-63) in response to Parents’ 3/31/03 letter, Mr. Magee wrote, in pertinent part:
It was my understanding that you informed Barbara Kyle last year that you did not wish to continue with the home services offered by the Newburyport Public Schools. Ms. Kyle wrote you a letter saying that she is available if you change your mind. Since that time, we have had numerous team meetings, phone conversations and other types of correspondence regarding [Luke] and his program. To this date you have not mentioned once that you wish these services to begin again. These services require your cooperation and desire to access them. Do you wish to access these services again?
In a May 15, 2003 letter to Parents’ Attorney (S-62) Mr. Magee proposed that Mr. Martel (who had experience working with Luke’s family) develop a proposal to provide home services. Mr. Martel, a licensed mental health counselor, testified that he verbally agreed with NPS to do the initial pieces with Luke and his family; that he was very specific that he viewed this as an assessment and not treatment; and that he never committed to a home consultation program based upon the IEP. Mr. Martel testified that he observed Luke over April-May-June 2003 in his school and home environment and met with his family twice in June 2003 (total time 12-15 hours) but that he never generated any written report and never implemented a home consultation program. Mr. Martel testified that by June 2003 it became clear that given his schedule/time commitments the 4 hours per month in the IEP would not be sufficient to deal with all of Parents’ concerns/7 goals for Luke; and that he told Parents either over the summer or in September 2003 that he could go no further. Mr. Martel testified that he was explicit at Luke’s September 2003 team meeting that he had finished his assessment; that he couldn’t do more than 4 hours per week; and that he could not go further given his schedule and Parents’/NPS’ divergent views.
In a September 15, 2003 follow-up letter to Parents (S-108) after the September 11, 2003 team meeting Mr. Magee wrote, in pertinent part:
The team also discussed the home consultation services outlined in the current IEP. Based on information provided by Don Martel, it was determined the home consultation services could include two different types of service. 1. Linda Campbell would focus on assisting [Luke] in developing community skills and practicing money skills in the community. 2. Don Martel would be available to you if you needed help with behavioral issues. It was determined that you would contact him directly if necessary.
In a February 25, 2004 letter to Parents (S-103) Mr. Magee wrote, in pertinent
part:
For a variety of reasons, Don Martel is unable to provide the behavioral consultation services at this time. Over the past several months, I have made several attempts to find a home consultant including placing advertisements in the paper. I would like to propose two options at this time. 1. As you know, Barbara Kyle is our in district home consultant and is a nationally certified applied behavioral analyst. I could reconnect you with her if you were interested. In addition, Newburyport Public Schools may be willing to fund another credentialed consultant. If you know a person who would be qualified and interested, please let me know.15
Mr. Magee testified that Mr. Martel felt there was a roadblock; that Parents were wary of his intentions; and that Mr. Martel was uncomfortable regarding this possible litigation (testimony, Magee).16
I see parallels to untying the Gordian knot given the above sequence of events. There was confusion regarding Luke’s home component. NPS had provided it via Ms. Kyle. Parents had discontinued it. Parents never affirmatively requested that the home component begin again until their 3/31/03 letter. Once that letter was received NPS attempted, through Mr. Martel, to implement home services again. Since 2001 home consultation services have been provided on Luke’s IEP. Plainly, Mr. Martel was uncomfortable given his prior work with Parents/family; the extensive numbers of areas Parents wanted addressed; Parents’/NPS’ divergent views; and Mr. Martel’s beliefs. Mr. Martel’s testimony was unequivocal that he believes that students do best in their home/school/community environments where they can model appropriate peer behaviors; that Luke expressed his desire to be with normal kids; that Luke performed well within NPS (See Section I of Finding And Conclusions ), above); and that Mr. Martel would be concerned if Luke were with all disabled students. Clearly, Mr. Martel was conflicted and his testimony walked a tightrope. However, his testimony that he was explicit at the September 2003 team meeting that he had completed his assessment and could go no further was unrebutted by Mr. Magee or any other NPS witness. What is equally clear is that no home component/consultation/ services have been implemented after Mr. Martel bowed out in September 2003. Thus, Luke has received no in home consultation services whatsoever during the 2003-2004 school year.
Under the totality of circumstances delineated above, I conclude that NPS’ failure to provide home consultation services pursuant to accepted IEPs might be considered excusable until September 2003. However, such failure to provide home consultation services after the September 11, 2003 team meeting is not excusable. Parents, via their 3/31/03 letter and their August 22, 2003 acceptance of the then most recent IEP (2/03-2/04 IEP– P-B6; S-1B) affirmatively accepted the home consultation services provided under all of Luke’s IEPs. Such services, except for Mr. Martel’s services from April-June 2003, have not been provided. Therefore, I conclude that NPS is liable for compensatory home consultation services for at least the 2003-2004 school year. I order NPS to provide Parents/Luke with 75 hours of additional home consultation services beyond these specified in 2 nd Modification in Section I , above.
ORDER
I. NPS’ proposed 2/04-2/05 IEP for Luke is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment with the five (5) modifications/amplifications specified in Section I of the FINDINGS AND CONCLUSIONS , above.
II. Parents have failed to prove the necessity for an out of district placement to address Luke’s special education needs at this time, or that BLP would appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment.
III. Parents are entitled to limited compensatory services as specified in Section III of the FINDINGS AND CONCLUSIONS , above.
By the Hearing Officer,
Dated: November 2, 2004
Raymond A. Oliver
1
Luke is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
Newburyport offered the 2/03-2/04 IEP as S-98. However, another exhibit had already been given that number. The Hearing Officer has labelled the 2/03-2/04 IEP as S-1B and changed the Amendment to the 2/03-2/04 IEP from S-1 to S-1A.
3
P-B6, P-B48, and S-3 all show the team meeting dates of 2/10/03 and 3/10/03; Mr. Magee’s certification signature as 3/13/03; and the Start and End dates on the service delivery grid as 2/10/03 to 2/10/04. However, P-B6, P-B48 and S-3 all show the IEP dates on all other pages of the IEP as 2/10/02 to 10/9/03! S-1B shows all pages of the IEP as 2/10/03-2/10/04. Based upon Mr. Magee’s signature of 3/13/03 and Parents’ essential rejection letter of 3/31/03 (P-B6 and P-B48), as well as the sequence of the timing of all of the other IEPs, it is clear that this IEP was promulgated in 3/03 and designed to cover 2/03-2/04. (See also testimony, Magee; Affidavit of Father- PB48.)
4
Because of Parents’ Attorney’s pending 3-4 month extended leave, the pre-hearing conference on October 21, 2004 never took place.
5
See P-A13; P-B7 for chart of grade equivalent scores computed on the administration of the WIAT.
6
Testimony of Ms. Adams.
7
Provided by NPS for information purposes only. (See testimony, Reilly.)
8
NHS is on a 6 day rotating A/B Block Schedule. Some classes meet on only A day; some classes meet only B day; and some classes meet every day. Thus, 6×90 means the class meets every day for 90 minutes and 3×90 mean the class would meet for 90 minutes on each day the class meets, either A or B day. (See testimony, Magee.)
9
I also note the rather heavy emphasis placed upn Parents’ perceptions of Luke’s functioning in the CCSN evaluations/Carra & Adams testing and the rather limited emphasis placed upn school input in these evaluatons. I also note that the most recent Carra observations of NHS and BLP were done on the eve of hearing.
10
Such gaps will be addressed in Sectin III of this DECISION .
11
Except perhaps Ms. Smith, the Autism Consultant (testimony, Smith; Magee).
12
Implementation/gaps in Luke’s home program will be addressed in Section III of this DECISION .
13
I note that Luke’s 2 siblings also have emotional/behavioral special education issues (testimony, Father; Larivee; Carra; Martel; referenced in background material of numerous evaluations). Query whether this is a potential factor which contributes to Luke’s behaviors within the home setting?
14
Including the summer placement proposed and accepted in June 2003 via IEP Amendment (P-B6, B48; S-1A).
15
I note that this letter was written to Parents approximately 1 month prior to the commencement of this hearing.
16
Parents’ Hearing Request was filed in May 2003 during Mr. Martel’s school/home assesssment of Luke and his family. (See STATEMENT/HISTORY OF THE CASE , above.)