COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.; as amended by P.L. 108-4461 ); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
In this case, the Parents of a first grader2 with a disability allege that the Lynn Public Schools created a “hostile environment” for the Student and Parents during the 2009-2010 school year in retaliation for Parents’ request for due process, thereby discriminating against him on the basis of his disability and denying him a free, appropriate public education. Parents seek to have Student placed in a separate, language-based program for children on the autism spectrum for part of his school day..
The Lynn Public Schools (Lynn or School) has denied the Parents’ allegations, and asserts it has provided the Student with a FAPE, and owes no compensatory services.
Procedural History
On February 12, 2010, Parents, through their former advocate, filed a request for hearing alleging many inadequacies in the Student’s IEP and services, as well as procedural violations by the School. On or about March 30, 2010, the Parents dismissed the initial advocate and retained a second advocate, who represented the Parents from that date forward. In a pre-hearing conference held on April 27, 2010, and in subsequent conference calls, the parties narrowed and clarified the issues in dispute.
A hearing on the merits took place on June 9, 10 and 23, 2010 at the office of the BSEA in Malden. The second advocate, referred to above, represented the Parents, and an attorney represented the Lynn Public Schools.
Those present for all or part of the proceeding were:
Student’s Mother
Student’s Father
Lydia Muggeo Deputy Administrator of Special Education Director, Lynn Public Schools
Bernadette Stamm Principal, Drewicz Elementary School
Marie Kasle Occupational Therapist, Lynn Public Schools
Karla Linehan Speech Pathologist, Lynn Public Schools
Diana Shanks Special Education Teacher, Lynn Public Schools
Melissa Gamble Team Chairperson, Lynn Public Schools
Deborah Smyth, Ph.D. Educational Consultant, May Institute
Robert Putnam, Ph.D. Behavioral Psychologist, May Institute
Robert Augustine Advocate for Parents
Jane M. Lavoie, Esq. Attorney for School District
The official record of the hearing consists of Parent’s Exhibits P-23 through P- 15School’s Exhibits S-1 through S-31, and tape recorded testimony and argument. The parties originally requested and were granted an extension to July 30, 2010 to file written closing arguments; however, the Parents later waived their right to submit a written statement. The School requested and was granted leave for a final extension to submit its closing argument on August 6, 2010, and the record closed on that day.
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether the IEP that the Lynn Public Schools proposed for Student for June 2010 – June 2011 is appropriate, or whether Student requires a more restrictive placement, in which he would spend at least part of each day in a substantially separate language-based classroom designed for children with autism;
2. Whether the Lynn Public Schools prevented or interfered with Student’s receipt of FAPE during the 2009-2010 school year because it created a hostile environment for Student and Parents.
3. Whether the hostility towards Student and his Parents precludes Student’s receipt of FAPE within his assigned elementary school, or even within the District, such that Lynn must place Student in an outside collaborative or private school to ensure his receipt of FAPE.
4. Whether the Lynn Public Schools owes Student speech/language and occupational therapy services to compensate him for services that Lynn failed to deliver during 2009-2010.
POSITION OF PARENTS
Student is a high-functioning child with autism. Student’s behavior at home has regressed since he began attending the integrated placement provided by the School. Further, the School created a hostile environment for the Student and Parents after Parents rejected portions of the 2009-2010 IEP and requested this hearing at the BSEA, seemingly in retaliation for Parents’ exercising their due process rights. The School has so poisoned the atmosphere for Student in his assigned elementary school that it has deprived Student of FAPE, and created a situation where Student cannot receive a FAPE in that school in the future, or possibly, even within the Lynn Public Schools. For at least part of each school day, Student needs a substantially separate program specifically designed for children with autism in order to make educational progress. Finally, Lynn owes Student compensatory services to make up for sessions of occupational therapy (hereafter, OT) and speech therapy that Lynn failed to provide during 2009-2010.
POSITION OF LYNN PUBLIC SCHOOLS
Throughout the period at issue, Lynn provided Student with highly appropriate services. Student has made excellent progress in the School’s integrated program, which clearly provided him with FAPE. A substantially separate program as requested by the Parents would be far too restrictive for Student. Further, Parents’ allegations regarding retaliation or hostile environment are unfounded. The incidents referred to by Parents either did not occur in the manner that Parents’ allege, or, if they did occur, represent simple misunderstandings or miscommunications which are unrelated to Student’s disability or Parents’ exercise of due process rights, and which did not deprive Student of FAPE. Finally, Lynn does not owe Student any compensatory OT or speech/language services because it already has provided all services to which Student was entitled, including OT services needed to compensate Student for sessions that were missed because of provider illness.
FINDINGS OF FACT
1. Student is a six year old child with disabilities who lives with his family in Lynn. Student’s eligibility for special education and related services is not in dispute.
2. Student is described as a bright, happy, verbal, and social child. Student has strong skills in the areas of comprehension and processing complex verbal information, as well as in reading and spelling. Student’s academic performance is strong, and standardized tests show academic skills in the “superior” or “very superior” range.
3. Student’s disability is so-called “high-functioning autism.”4 Student’s autism manifests itself as weaknesses in expressive and receptive language, and in social, and adaptive skills, as well as inattention/impulsivity, difficulty in differentiating between relevant and non-relevant information, and restrictive, repetitive, and stereotyped activities. Student also has some fine and gross motor delays. (P-6, S-21, Timmel, Putnam)
4. Student first was diagnosed with autism at about age 2, when he and Parents lived in another state. (State 1). Student received Early Intervention services until the age of 3, when he entered an integrated preschool program. During the 2008 – 2009 school year, the family moved to State 2, where Student attended an integrated pre-kindergarten pursuant to an IEP. On August 3, 2009, Student’s school district in State 2 issued an IEP covering the period from May 12, 2009 through May 11, 2010. The family planned to move to Lynn at this time, and to present this IEP to Student’s new school in Lynn. (P-5, Mother)
5. The out-of-state IEP called for five half-days (2.5 hours) per week in integrated preschool, with small-group speech/language therapy (3×30 minutes/week), and individual or small group occupational therapy (OT) (2×30 minutes/week). The IEP also provided for summer services. (P-5)
6. The IEP educational and language goals were to improve Student’s communication skills (expressive and receptive language, social pragmatic, voice and articulation skills), increase his ability to play with peers, improve his organizational skills, learn to complete activities, to accept consequences calmly, and to improve his ability to follow school rules. OT goals were to improve sensory processing, fine motor control, and visual-motor integration (P-5)
7. Student and Parents moved to Lynn at the beginning of the 2009-2010 school year. At that time, in order to implement Student’s existing out-of-state IEP, Lynn placed Student in the COACH kindergarten program at the Drewicz Elementary School. Lynn viewed COACH as substantially similar to Student’s prior program (Mother, Muggeo)
8. The COACH program is designed to serve students with autism and similar disabilities within inclusion settings. At the time of hearing, the program comprised integrated, co-taught classrooms for grades K through 3. (A fourth grade class is scheduled to open for the 2010-2011 school year.) Students with IEPs receive related services both within and outside of the co-taught classroom, and the program is supported by a behavioral consultant from the May Institute, Deborah Smyth, Ph.D. During 2009-2010, Student attended an integrated kindergarten classroom co-taught by a regular and special education teacher, as well as at least one aide. Student’s COACH kindergarten classroom served 22 students, of whom 7 were on IEPs, and 2 were on Sec. 504 plans. Three students, including Student, had Autistic Spectrum Disorder. Lynn also has a substantially separate elementary program for children on the autism spectrum, which is designed for students who are lower functioning than Student or his peers in COACH. That program is located at a different elementary school from the one Student attends. (Muggeo)
9. During the first month or so of the 2009-2010 school year (September-October, 2009), Lynn implemented Student’s IEP from his prior state. Problems arose almost immediately, when a number of OT and speech therapy sessions were not provided, owing to scheduling problems and illness of a provider. The parties dispute whether or not Lynn has made up missed sessions, as will be discussed infra.
10. During September and October 2009, the School conducted its own evaluation, which consisted of psychological, educational, speech/language, and OT assessments.
11. The psychological evaluation consisted of standardized testing, parent and teacher rating scales, consultation with teachers and Parents, observations, and review of records. In sum, the evaluation showed that Student’s non-verbal abilities were stronger (in the average range) than his verbal skills (generally low average). His academic skills, as measured by the Woodcock-Johnson Tests of Achievement – Third Edition (WJ-III) were in the “Very Superior” range. Behaviorally, Student demonstrated features of Pervasive Developmental Disorder, Not Otherwise Specified (PDD, NOS), including preoccupation with parts of objects or non-functional elements of play materials, marked impairment in the use of non-verbal expressive behaviors (eye contact, facial expression, body postures and gestures), impaired understanding and use of social interaction norms such as personal space, and failure to develop age-appropriate peer relationships. In addition, Student demonstrated inattention, sensitivity to sensory stimuli, and both fine and gross motor delays. (S-21)
12. The psychologist made numerous recommendations, including specialized instruction in a small, highly structured, substantially separate classroom with similar peers and knowledgeable staff, opportunities for interaction with typical peers in classes and social situations, social skills training, extended school year services, and home-school communication to ensure generalization of skills.
13. The speech/language evaluation showed that Student had weaknesses in receptive and expressive language, as well as problems with articulation. In addition to classroom accommodations, the evaluation report recommended small-group speech/language therapy 2×30 minutes per week. (S-20)
14. The educational and classroom assessments showed, in addition to the high WJ-III scores referred to above, that Student had good reading and oral language skills compared to peers. Student’s areas of weakness were attention, staying seated, raising his hand to speak, remaining focused on tasks, and using a pencil or crayon. Student needed much staff support to perform in class. Recommendations were for various accommodations to help Student pay attention and focus on work. (S-18)
15. The OT evaluation showed that Student had weaknesses in the areas of sensory-motor, visual-motor, motor coordination, attention and sensory processing, which affected his ability to function both inside and outside the classroom. The evaluation report recommended various classroom accommodations as well as individual or small group direct OT services, 2×30 minutes per week.
16. The TEAM met on October 23, 2009 to consider the evaluation results, and Lynn issued a proposed IEP on or about November 4, 2009. This IEP provided for continued placement in the integrated kindergarten classroom, with numerous accommodations (Grid B), together with 2×30 minutes/week, each, of occupational and speech/language therapy.5 (Grid C).(S-13)
17. As indicated by the N-1 form accompanying the proposed IEP, as well as the Parent and/or Student Concerns” section of the IEP, Parents wanted Student removed from the Drewicz School. They felt that since Student had enrolled at Drewicz, skills had “dramatically regressed,” and his maladaptive behaviors at home had increased. They also felt that the large size of Student’s kindergarten class contributed to Student’s attention problems, and that classmates were picking on Student and not being nice to him. (S-13)
18. Parents partially rejected this IEP based on the absence of a third weekly speech therapy session. (S-14) On January 13, 2010, after discussion with Parents, the School issued a “second” IEP, which increased the weekly speech/language sessions to 3×30 minutes from 2×30 minutes. Parents partially accepted this IEP in January 2010. (Linehan, S-12)
19. Additionally, in response to Parents’ concerns about Student’s behavior at home, the School retained an educational consultant, Deborah Smyth, Ph.D., to conduct a home assessment. Dr. Smyth is a Board Certified Behavioral Analyst (BCBA) employed by the May Institute. (S-7, Smyth)
20. Dr. Smyth conducted her assessment over four days in January 2010. The assessment consisted of interviews with Student’s special education teacher and Parents, review of records, and observation of Student in school and at home. Additionally, both Mother and the teacher completed the Vineland Adaptive Behavior Scales, Second Edition (Vineland-II). Mother also completed the Social Skills Improvement System (SSIS) questionnaire. Both the Vineland-II and SSIS are designed to assess Students’ skills in various domains, including communication, daily living, socialization, and motor skills. Additionally, the SSIS can assess problem behaviors and aspects of social skills such as cooperation, assertion, responsibility, empathy and self-control. (S-7)
21. The assessment revealed that Student’s adaptive skills were generally in the “low” range in school, and slightly better at home. Problematic behaviors in school included acting without thinking, becoming upset with changes in routines, excessive fidgeting, inattention, and distractibility. At home, Parents noted that Student had trouble waiting his turn, became upset with changes in routine, had temper tantrums, said no one liked him, and was easily distracted. In general, Student responded to redirection, and both Parents and the teacher rated problem behaviors as “mild” or “moderate.” (S-7)
22. Dr. Smyth recommended adding goals to Student’s IEP for attention, persistence and compliance, developing written strategies for compliance in school that would be shared with Parents, increasing opportunities to interact with peers at home (e.g., play dates), daily social skills instruction in the natural environment in school, carryover of skills learned in speech/language and OT into the classroom, and increase in home-school communication (S-7) Dr. Smyth testified that at the time of her evaluation, Student did not need a functional behavioral assessment or home-based services. She observed no negative behaviors at home, and Parents had reported that they could manage any behavioral problems with redirection.6 Dr. Smyth also did not observe any negative behaviors in school. (Smyth)
23. A TEAM meeting was scheduled for February 2010 to discuss Dr. Smyth’s evaluation, but subsequently was cancelled by Parents. (Stamm, Linehan)
24. Meanwhile, Student attended the COACH program and received the services outlined in the October IEP. According to teacher progress reports issued in April 2010, Student improved his ability to stay seated, stay on task, complete written tasks, recover after becoming upset, and understand expectations about organizing his materials. (S-6) Student’s special education teacher testified that Student was generally happy, outgoing, and well-behaved in class, had strong academic performance, and made progress towards his IEP goals during the year. (Shanks) The speech/language therapist testified that Student made steady progress over the Kindergarten year. His intelligibility improved, as did his ability to generate sentences. (Linehan) The occupational therapist testified that Student made slow, steady progress with fine motor skills, including his ability to write and use scissors. (Kasle)
25. On March 11, 2010, an independent evaluation was conducted by Gretchen Timmel, M.Ed., from the Psychology Assessment Center at Massachusetts General Hospital. The evaluation consisted of a review of records (including the School’s evaluations), standardized tests, and behavior ratings completed by Parents and Student’s teacher. (P-15, Timmel)
26. Ms. Timmel concluded that Student’s test results were consistent with his diagnosis of high-functioning autism. She further concluded that Student also met the criteria for “learning disability NOS” based on his problems with writing. She noted that Student had difficulty with attention, with understanding the relevance of what he should attend to, with behavioral dsyregulation, processing complex language, and graphomotor production, and generally, with understanding what was expected of him. Nonetheless, Student was motivated, engaging, and could be directed, and had strong learning abilities. (Timmel, P-15)
27. Ms. Timmel recommended that Student spend at least part of his school day in a small, substantially separate language-based classroom, led by a teacher with training in autism spectrum disorder and associated language disorders, and overseen by an individual with expertise in Applied Behavioral Analysis (ABA). (Timmel, P-15) Appropriate peers would be other children with high-functioning autism, or with language disorders. (Timmel)
28. Ms. Timmel felt that Student needed this setting for multi-sensory teaching for reading, writing, and math, as well as for explicit teaching of behavioral regulation, social pragmatics, and in-class speech/language therapy (as well as pull-out sessions). She believed that the classroom needed to be substantially separate to ensure sufficient intensity of instruction, although she did not rule out the possibility that such intensity could be provided in a co-taught classroom. (Timmel)
29. Additionally, Ms. Timmel recommended mainstreaming for nonacademic subjects, with aide support, as well as contact with typical peers in a social pragmatics group. (Timmell, p-15)
30. Finally, Ms. Timmel recommended a functional behavioral assessment (FBA), to be conducted in both the separate and mainstream class, and development of a behavioral intervention plan based on ABA principles, to be implemented at home and in school. To ensure consistency, which Ms. Timmel stated was critical to enable Student to generalize skills, Ms. Timmel suggested that Parents should be providing some direct home-based instruction in behavioral, emotional, and communication areas. She stated that this would require intensive home-School collaboration, and Parent education, including at least twice-monthly in-home meetings between Parents and School personnel, as well as, possibly, Parents joining the teacher during the school day, videos, etc. (P-15)
31. As for placement, Ms. Timmel stated that if the appropriate combination of small group and mainstream setting did not exist in a public school or collaborative, Student should be placed in a private school for children with similar profiles, and gain his mainstream experience through after-school activities. (Timmel, P-15)
32. Ms. Timmel spent approximately five hours testing Student, but did not observe him in his classroom, and did not gather information from his teachers other than questionnaire results. (Timmel)
33. The School arranged for Ms. Timmell’s report to be reviewed by Robert Putnam Ph.D. Dr. Putnam holds a Ph.D. in special education/rehabilitation, is a doctoral level Board Certified Behavioral Analyst, and a licensed psychologist who has worked in the field of autism and behavioral research, teaching, and consultation since the early 1970’s. Currently, Dr. Putnam is Senior Vice President for Consultation with the May Institute. Dr. Putnam provides staff training and consultation to assist public schools with designing and providing services to students with autism. (Putnam)
34. Since approximately 2006, Dr. Putnam and the May Institute have worked with Lynn on developing programs for children with autism spectrum disorders. (Putnam)
35. In the instant case, Dr. Putnam observed Student in his classroom, reviewed Ms. Timmell’s report, and met with Student’s teachers and with Dr. Smyth (who had conducted the home assessment). Dr. Putnam concluded that Student was a bright child with needs in the areas of social skills, communication, writing, math, attention, and working independently. (Putnam)
36. Dr. Putnam testified that Student should be in an integrated setting with typical peers. He stated that Lynn already was implementing many of Ms. Timmell’s recommendations within the COACH program, including explicit instruction in social pragmatics (in speech therapy), or could do so in the future (e.g., small group instruction within the inclusion classroom, implementation of a home behavioral program, training for staff in ASD, increased home-school communication). (Putnam)
37. On June 7, 2010, the School convened a TEAM meeting to consider the reports of Dr. Smyth and Ms. Timmel, as well as a report from a physical therapy evaluation that had been conducted in January 2010. Parents did not attend the meeting.7 The School representatives proceeded with the meeting and generated an IEP covering the period from June 7, 2010 to June 6, 2011.
38. This IEP called for continued placement in an integrated classroom for the remainder of Kindergarten as well as for first grade.
39. The new IEP amended the prior IEP by incorporating many recommendations of Dr. Smyth, and Ms. Timmel. As recommended by Ms. Timmel, the new IEP specifies that Student will receive “structured reading, math, and writing programs,” and that Lynn will conduct a functional behavioral assessment and develop a behavior intervention plan to target difficulties with attention, compliance and independent work. Additionally, the new IEP provides for the School to conduct weekly curriculum-based measures in math, reading, and writing, and to convene monthly meetings with the home consultant, Parents and school-based TEAM members. Social skills goals have been made more explicit. A physical therapy goal and services have been added, as well as a home exercise program to be implemented by Parents. (S-2)
40. The service grid on the June 2010 IEP was amended with the addition of consultation services in Grid A, as follows: School consultation 1x60minutes/week from June to November 2010 and 2×60 minutes per month thereafter (for social skills, behavior, math and spelling); home training from the home consultant, 2×60 per month from June through December 2010 and 1×60 minutes per month thereafter (for social skills and behavior); OT consultation 1x30minutes/month. In Grid C, the new IEP reduced speech/language therapy to two weekly sessions, and added 30 minutes per week of physical therapy to address motor skills. Under “Additional Information,” the IEP specified that one session each of OT and speech/language services would take place inside the classroom and the second session would be in a separate setting. (S-2)
41. As of the hearing date, the Parents had not responded to the new IEP. After Ms. Timmel had testified, the parties forwarded it to her for her review, but she did not provide further testimony.
Claims of Missed Speech and OT Sessions
42. Because the original occupational therapist assigned to Student was absent due to illness at the start of the 2009-2010 school year, Student’s OT services did not begin until October 2009, and were provided sporadically during the fall of 2009. In approximately January 2010, the principal, Ms. Stamm, learned about the situation. After a meeting, the School assigned occupational therapist Marie Kasle to provide Student’s OT services, and agreed to make up any missed services by providing Student with three OT sessions per week, as opposed to the two weekly sessions called for in the IEP. (Kasle, Stamm) Ms. Kasle began working with Student on February 25, 2010 (S-10).
43. The School claims that it has made up for the missed sessions and that in fact, it has provided more than the required number of sessions. (Kasle, Stamm)
44. Parents claim that based on a chart developed by Father, the School did not make up all sessions. Parents relied on notations in Student’s home-school log to track sessions. Not all sessions were entered into the log, however, because Parents did not always return the log book to school. Further, the log did not take into account sessions recorded in separate classroom logs, therapy records, attendance records, Student absences, tardiness, holidays or snow days. (Parents, Kasle, Linehan, Stamm, Shanks)
45. According to the School’s log of OT services, Student received three OT sessions per week from February 25, 2010 through June 4, 2010 for a total of 37 sessions, approximately nine more than he would have received at the original rate of two sessions per week. (S-8)
46. Neither the School nor the Parents have stated clearly how many sessions of OT Student would have received if none had been missed.
47. With respect to speech/language sessions, the Monthly Service Log produced by the School indicates that services were provided twice weekly from approximately September 23 through October 15, 2009, and three times weekly thereafter until June 4, 2010. According to the testimony of Student’s speech therapist, Karla Linehan, the service log does not reflect all sessions that actually were provided. As with the OT services, neither the School nor the Parents have specified exactly how many speech/language sessions Student allegedly missed; however, a review of the calendar indicates that, at most, Student would have missed four sessions during the time at issue (September 23 through October 15) (Linehan)
Allegations of a Hostile Environment
48. Parents claim that personnel from Lynn and from the Drewicz School in particular have had a hostile attitude towards them and towards Student which has prevented Student from receiving FAPE. At various times, Father has expressed that this attitude has been present since Student was enrolled, but that it worsened after the meeting in January to address missed OT services and after the Parents’ hearing request. (Father) Mother testified that there was so much hostility to Parents and Student that Student could not be educated successfully within the Lynn Public Schools. (Mother) Parents testified about several incidents in support of their allegations. Mother memorialized several such incidents in notarized statements made on May 6, 2010. School personnel responded with written statements dated May 10, 2010.
49. The first such incident took place on or about April 16, 2010. Mother testified that on that day, which was rainy, Student was not standing with his aide at his usual spot near the school building when Mother arrived to pick him up after school. Mother entered the building to search for Student and found him crying in the Principal’s office. Student reported that an aide had told him that “Mommy isn’t coming.” Student continued to cry for another hour after Mother arrived. (Mother) In a notarized statement written on May 6, 2010, Mother stated that Student had experienced an “autistic meltdown” because his usual pick-up routine had been changed, and because he allegedly had been told that his parent was not coming. (P-14)
50. The school principal, Ms. Bernadette Stamm, testified to a different version of events. According to Ms. Stamm, when Student’s aide did not see Mother at the outside pickup spot, she brought the Student into the Principal’s office, in compliance with School policy. Ms. Stamm told Student that Mother would be there shortly and probably was running late. Ms. Stamm observed that Student began crying when Mother walked into the office, but that he had not been crying previously.8 (Stamm)
51. The second incident took place on or about April 27, 2010, after the pre-hearing conference in this matter. Mother had been unable to attend that conference because she had just started a new job. When Mother arrived to pick up Student after school, Student’s special education teacher approached Mother and asked her if she had missed the conference because she had to work. Mother wondered why the teacher would ask her this question, and felt that the inquiry was “a type of bullying.” (Mother, P-15)
52. The teacher’s version of the incident was that Mother’s being at work came up in a casual conversation about the pre-hearing conference, which Mother had initiated. According to the teacher, Mother showed no signs of being offended at the time of the conversation, and the teacher had intended no accusation or judgment by her comment. (Shanks, S-26)
53. A third incident occurred on or about May 3, 2010. In her notarized written statement of May 6, 2010, and in her testimony, Mother stated that Student was crying when she picked him up at school on May 3, and had told Mother that his speech therapist “took away his sticker.” According to the communication book, Student had called another child in speech therapy a “loser” after that child lost a game. Additionally, at lunch, Student reportedly tapped another child on the head with a juice box. As a consequence his teacher, Ms. Shanks, did not allow Student to go outside for recess. Instead, Student sat in his classroom, alone with Ms. Shanks, to read. According to Mother, Student was so upset about having to stay inside and read when his friends were outside having fun, that he had an “autistic meltdown,” and was crying and upset. Mother stated that Student woke up crying and screaming that he did not want to stay inside for recess. Because Student had been so upset, Mother kept him home from school the next day. (In her May 6 affidavit, Mother stated that Student had begged not to attend school on that day). (Mother, P-14)
54. Mother felt that this incident demonstrated the School’s overly punitive approach to Student. She testified that Parents corrected Student’s behavior not by punishing him, but by getting down at his eye level, helping Student calm down if needed, telling Student how he had behaved inappropriately, and reminding him of the correct substitute behavior. Parents felt it was totally inappropriate for the School to take recess or a reward sticker away from a child with autism. (Mother)
55. Ms. Shanks testified that she was not punishing Student by keeping him inside on the day in question. Rather, she had noticed that Student was becoming worked up, and suggested that he stay inside and read quietly to calm down, so that he would not have to cope with the noise and activity of the playground. Ms. Shanks testified that Student was not upset, but calmed down and had a good afternoon. Ms. Shanks home-school log entry on the day of the incident stated:“[a]s long as [Student] understands that it is not a punishment, I might try this again if needed. If you have any questions, please let me know.” (Shanks, S-26)
56. Ms. Linehan, the speech therapist, testified that she had not taken away a sticker that Student had already earned. Rather, after being warned, Student did not earn a sticker because he had called another child a “loser,” according to the usual practice applicable to all children in the group. (Linehan)
57. Parents testified about other alleged incidents that they felt were inappropriate in light of Student’s disability. According to Mother, Student claimed that an aide had confiscated and thrown away the cookies that had been in Student’ lunch. Mother testified, and wrote in her May 6 statement, that the aide was rude and abrupt to Mother when she when she questioned the aide about the cookies. (Mother, P-14) Father testified that the School’s policy9 of requiring Student to throw away the candy in his “Lunchable” was inappropriate and/or unfair, and that he informed the School that Student would bring candy in his “Lunchable” from that time forward. (Father)
58. Mother testified that for the most part, she did not attempt to discuss these issues with anyone from the School because she felt intimidated. (Mother)
59. The School has denied any hostility or discriminatory actions or intent towards the Parents. Ms. Stamm testified that she viewed the Parents as involved and committed to Student’s education. Additionally, Parents have been very involved in activities to support the Drewicz School, including helping to start a PTO, fundraising, and obtaining used computers, and the School has appreciated this involvement. (Stamm, Muggeo) While some staff members may have found Parents to be somewhat confrontational or intimidating (Shanks, Putnam) staff have not been hostile or discriminatory towards Parents or Student. (Stamm)
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that the IEP proposed for 2010-2011 is appropriate, and that the Parents have not met their burden of proving otherwise. Further, Parents have not met their burden of proving that the School engaged in retaliation, created a hostile environment, or otherwise discriminated against Student on the basis of disability during 2009-2010 in a manner that deprived him of a FAPE, or would be likely to deprive him of FAPE during 2010-2011. Finally, while the Parents have not met their burden of showing that Student was denied any OT services to which he was entitled, the record indicates that the School does owe Student three speech/language sessions. My reasoning follows.
Appropriateness of Lynn’s IEP for 2010 – 2011
The Parent and School agree that Student is a child with disabilities who is entitled to a free appropriate public education (FAPE) as defined in federal and state law.10 The parties also agree that Student is an intelligent, high-functioning child who has very strong academic skills, but who also has autism. There is no dispute that in light of this profile, Student needs an educational program that combines specialized instruction, supports and related services to address Student’s autism-related needs and weaknesses, with exposure to a challenging curriculum and typical, non-disabled peers.
The partially-accepted IEP and fully-accepted placement for 2009-2010 clearly met these requirements, providing Student with a co-taught classroom, accommodations to address his attentional, social/emotional, behavioral and learning needs, and related services in the areas of OT, PT, and speech/language.11 The documents and testimony presented by the School establish that Student made effective, meaningful progress in this program. Parents have presented no evidence to the contrary. The Parents’ independent evaluator, Gretchen Timmell, made various recommendations for Student’s future placement, but did not contend that Student had failed to make progress in the COACH program.
The proposed IEP for 2010-2011 not only continues the services and placement type that was successful for Student last school year, but also strengthens that program by incorporating the recommendations of Dr. Smyth and Ms. Timmell for additional services and accommodations. Specifically, the first grade IEP calls for structured reading, math, and writing programs, as recommended by Ms. Timmell, as well as for a functional behavioral assessment and behavior intervention plan, data-based tracking of academic progress, more explicit social skills goals, home-based Parent training, and increased and more formalized home-school communication as recommended by Dr. Smyth and Dr. Putnam, and physical therapy services to address Student’s longstanding motor weaknesses. This new IEP provides more intense and coordinated services directed towards Student’s disability-related social/emotional, behavioral, and academic needs, both within the school setting and at home, and clearly is calculated to provide Student with FAPE. The Parents have presented no evidence to the contrary. And although Ms. Timmell suggested that Student might need to spend part of his day in a substantially separate setting, she did not testify about whether the 2010-2011 IEP addressed her concerns about whether Student’s program was sufficiently intensive.
Parents’ Hostile Environment Claim
Parents’ assertion that certain conduct by the School created a hostile environment that denied Student a FAPE is without foundation. First, as a matter of clarification, “hostile environment” is a term with a specific legal meaning. The term and concept generally are used in employment discrimination cases, or, in the education context, in gender discrimination cases arising under Title IX of the Educational Amendments of 1972.12 This concept of “hostile environment” is not applicable in IDEA cases where the ultimate question is whether or not a child has been denied a FAPE because of the conduct of teachers or other staff, because of the relationship between staff and student or parents, or the general tone and atmosphere of a school or program.
Here, as discussed above, the evidence overwhelmingly supports the conclusion that the Student received a FAPE during 2009-2010, and is likely to do so under the successor IEP issued for 2010-2011. There is no dispute that the IEPs in evidence were developed with Parents’ participation, and were individually tailored to the Student’s unique strengths and needs, taking into account the information provided by evaluators, including Parents’ chosen independent evaluator. There also is no dispute that Student made meaningful progress in 2009-2010, and no evidence that such progress would not continue under the successor IEP.
On the other hand, the record does not support a conclusion that the School harbored any hostility, antipathy, or disrespect towards Student or Parents. On the contrary, Ms. Stamm testified as to the high regard in which she held Parents. Some staff may have felt a little intimidated by Father, at times, but there is no evidence that Student was denied a FAPE as a result. There is no evidence on the record that the incidents cited by the Parents as evidence of the School’s hostility–even if they occurred exactly as recounted by Parents—deprived the Student of FAPE. At most, these incidents constituted the kind of misunderstandings, miscommunications, or disagreements over the correct approach to assisting Student that can arise in any school setting. And the record is devoid of evidence that these occurrences interfered with Student’s educational progress. Even if the Student was upset after some of the incidents, there is no evidence that his progress in school was affected.13
Because the IEP and services proposed by the School are appropriate, and because the evidence does not support a finding that Student was or is likely to be denied FAPE in his current setting because of the attitudes or behavior of School staff, I need not address whether suggested substantially separate setting is appropriate.
Compensatory OT and Speech Services
Parents have not demonstrated that the School owes additional OT services to Student to services to make up for services missed during 2009-2010. The School has acknowledged that Student missed three sessions during September and October, 2009. Parents have not demonstrated that they are entitled to any more compensatory speech/language sessions.
CONCLUSION
Based on the foregoing, I conclude the following:
1. The IEP and placement that Lynn has proposed for Student for the 2009 – 2010 school year is reasonably calculated to provide the Student with a free, appropriate public education in the least restrictive environment.
2. The School’s conduct and attitude towards the Student and Parents have not, and are not likely to, deprive Student of a FAPE, and do not give rise to an atmosphere that makes Student’s recept of FAPE either difficult or impossible.
3. The School owes Student three compensatory speech/language sessions.
ORDER
The Lynn Public Schools shall arrange for and provide three “make up” speech/language sessions for Student, at a time and location agreed by the parties. .
By the Hearing Officer:
____________________ _____________________________
Sara Berman
Date: August 31, 2010.
1
Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”
2
The child was in first grade during the 2009-2010 school year, when the hearing took place.
3
The School objected to Parents’ exhibit P-1. The hearing officer sustained the objection, and the document was excluded from the record.
4
Obviously, it is the Student and not the autism, who is high functioning; however, for the sake of brevity, the term “high functioning autism” may be used in this Decision.
5
Lynn proposed this integrated placement for Student despite the recommendation of its own psychologist for a substantially separate classroom. Neither Lynn nor Parents called this psychologist as a witness, and neither Lynn’s nor Parents’ witnesses addressed either the psychologist’s placement recommendations or Lynn’s choice not to offer a substantially separate placement in light of those recommendations. By accepting the integrated kindergarten placement for 2009-2010, however, Parents foreclosed any subsequent challenge to the appropriateness of that placement.
6
At hearing, Mother testified that during the spring of 2010, Student had been violent on several occasions, hitting or trying to choke Father and herself during a meltdown. (Mother) The record does not indicate that Parents reported this behavior to the School, however.
7
At the pre-hearing conference held on April 27, 2010, the parties had agreed to participate in a facilitated TEAM meeting. On June 3, 2010, the Parents’ advocate informed the School and Hearing Officer that he had advised the Parents not to attend. (Stamm, Parents, S-2)
8
In a written statement dated May 10, 2010, written in response to Mother’s statement of May 6, Ms. Stamm stated that Student did not become emotional at any time while he was in her office. It is not necessary to resolve these inconsistent statements because the incident itself does not constitute a deprivation of FAPE, even if it took place as described by Parent. (S-26)
9
The policy was developed to keep peanuts and nuts out of the school to protect children with allergies. (Stamm)
10
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401. The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs, in light of the child’s potential. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
11
Of course, having accepted the placement and most of the IEP, Parents have acknowledged that the IEP provided Student with FAPE, and, as stated above and may not now attack the IEP or placement.
12
20 USC Secs. 1681-1688. See: Frazier et al. v. Fairhaven School Committee, et al ., 276 F.3d 52, 35 IDELR 271 (1 st Cir. 2000).
13
Mother testified that Student displayed some physically aggressive behavior at home during the latter part of the 2009-2010 school year, but presented no testimony or other evidence linking this behavior to “hostility” by the School. Further, this behavior occurred only sporadically. In any event, the increased home-based service and consultation provided in the 2010-2011 IEP should enable the Parents and School to address behavioral issues arising at home in a coordinated, collaborative manner.