COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Medfield Public Schools BSEA # 04-0706
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A one-day Hearing was held on September 23, 2004 in Malden, MA, before William Crane, Hearing Officer. Those participating (in person or by telephone) in all or part of the proceedings were:
Student’s Mother
Student’s Stepfather
Melissa McConville Behavior Analyst
Joann Frankhouser Neuropsychologist
Andrew Aspel1 Psychologist
Patricia Lavelle Speech and Language Pathologist, Medfield Public Schools
Meg Singer Occupational Therapist, Medfield Public Schools
Elizabeth Donalds School Psychologist, Medfield Public Schools
Holly Nilson Inclusion Coordinator, Medfield Public Schools
Mary Ann Gibbons Consultant, ACCEPT Collaborative
Kathleen McArdle Director of Pupil Services, Medfield Public Schools
Robert Crabtree Attorney for Student’s Mother2
Melody Orfei Family Advocate
Mary Ellen Sowyrda Attorney for Medfield Public Schools
The official record of the hearing consists of documents submitted by Parent and marked as exhibits P-1 through P-127; documents submitted by Medfield Public Schools (Medfield) and marked as exhibits S-1 through S-25; and approximately eight hours of recorded oral testimony and argument, with all testimony on September 23, 2004 and oral closing arguments by telephone on September 30, 2004.
The record closed on September 30, 2004.
ISSUES
The ultimate issue to be decided in this case is whether the individualized educational program (IEP) for the period June 10, 2004 through June 10, 2005, as proposed by Medfield, is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment. Within this general issue, Parent has identified (and Medfield has agreed to) the following specific issues to be resolved in this case:
1. Whether the proposed IEP adequately addresses Student’s needs for social competency education. If not, whether such education should include a social skills curriculum; whether such education should include “direct and reliable” adult teaching and support in both structured and unstructured settings; whether such education should include a dedicated and trained support person to help Student meet objectives; whether the objectives need to be made explicit; and whether Student needs additional work in social skills groups that include typical peers.
2. Whether the proposed IEP should include a definition of home-based consulting services by autism expert Melissa McConville as direct services to Student (rather than as “parent training”), together with measurable objectives for such services and a plan to decrease such services only with evidence of sufficient progress rather than automatically through the year as currently provided in the proposed IEP.
3. Whether Medfield should retain and assign an expert (to consult in the school setting) who demonstrates an understanding of Student’s social and behavioral issues and who can effectively coordinate between home and school, and whether this person should be Ms. McConville who Parent believes is able and willing to serve in both contexts.
4. Whether the proposed IEP should include an additional goal and measurable objectives related to executive functioning skills.
5. Whether the proposed IEP should include two periods per week of occupational therapy services, including sensory integration.
6. Whether the proposed IEP should include a summer program in an environment with typical peers, in which the development and generalization of Student’s social skills and behavioral skills are intentional areas to be addressed with the assistance of professionals with expertise in autism spectrum disorders and, in connection with that aim, whether there should be a commitment to an “early” Team meeting date to develop a summer program and placement for 2005.
7. Whether the proposed IEP should include a protocol for Parent and all service providers to regularly and frequently share information about Student’s daily experience including specific programmatic skills. Whether this should include a daily checklist to be completed by Student’s aide, listing items in the areas of social, behavioral and body-regulation skills.
8. Whether the proposed IEP provides accurate descriptions of Student’s current skills and deficits.
9. Whether the proposed IEP states goals and objectives which are measurable.3
STUDENT PROFILE
Student is an eight-year-old boy (date of birth 6/23/96) who lives with his mother and stepfather in Medfield, Massachusetts. Testimony of Parent; exhibits S-2, P-95 (IEP).
Student is bright and energetic. He attends the 3 rd grade at Medfield’s Wheelock School. Student is integrated into the mainstream for all of his classes, and is performing academically on grade level. Student has a disability that falls on the autism spectrum, with features of Asperger’s Syndrome. His disability negatively impacts Student’s social and pragmatic skills, as well as his behavior, particularly in less structured and less predictable environments. Testimony of Parent, Aspel, Frankhouser, McConville, Lavelle; exhibits S-2 (IEP), S-4 (teacher’s annual report for 2 nd grade), P-94 (report card), P-95 (IEP).
In order to address his educational needs, Medfield has proposed an IEP for the period 6/10/04 to 6/10/05 which would provide the following direct services in the general education environment: communication services (a “lunch bunch” with regular education students) by a speech-language pathologist for thirty minutes, once per week. The IEP would provide the following pull-out services: (1) communication services (a “circle of friends”) by the speech-language pathologist for fifteen minutes, once per week; (2) extended school year services at Summer Discovery for six weeks; and (3) social/emotional services from the school psychologist for thirty minutes, once per week. The IEP further provides for a variety of consultation services as will be discussed later in this Decision. Exhibits S-2, P-95, P-118 (corrected service delivery grid for the IEP).
FACTS
1. Parent , who is Student’s mother, testified that she has lived in Medfield for 18 years, and that she has three children, two of whom are in the Medfield Public Schools. She noted that Student’s brother who is in 5 th grade also has a disability on the autism spectrum, and although his disability is more severe than Student’s disability, Student’s social deficits are greater.
2. Parent testified that her son continues to need occupational therapy in order to address his deficits regarding his response to sensory stimulation. She believes that occupational therapy is necessary in order to give him the ability to participate more fully in school and community activities.
3. Parent testified that her son has deficits regarding his executive functioning skills. She explained that these deficits are reflected in his difficulty and frustration with his homework. She noted her son’s recent difficulties of rigidity and literal interpretation, which have made it more difficult for him to complete his homework successfully.
4. Parent testified that her son has significant deficits regarding his ability to express empathy. She related an incident when it was apparent that she had hurt her face; but when her son saw her, he gave no indication of concern or even recognition that she was hurt.
5. Parent testified that Medfield did not have timely discussions with her regarding Student’s summer program, and that consequently she had enrolled her son in the Noble’s camp. She explained that the Noble’s camp provides a choice of activities for her son, as compared to Medfield’s proposed summer program which offers little choice, which provides activities (such as music, drama and nature) which are of little interest to her son, and which does not offer the sports activities that her son needs. She also noted that her son has few peers in Medfield’s proposed summer program.
6. Parent testified that she would like the anniversary date of her son’s IEP to be in the fall, rather than the spring. She believes this would facilitate timely review of her son’s educational program at the beginning of the school year, rather than during the more hectic end of the school year in the spring.
7. Parent testified that she respects and trusts the teachers, therapists and other Medfield direct service providers who have worked directly with her son. However, she explained that she has lost confidence in Medfield’s administrative and consulting staff. She believes that they have not always followed through on their assurances and have not always had the best interests of her son in mind when making decisions.
8. A significant number of documents in evidence reflect Parent’s opinions and recommendations regarding her son’s special education and related services. The relevant documents are summarized below, beginning with Parent’s documentation of her observations of her son.
9. Parent’s e-mail of November 20, 2003 discusses her observations of Student in gym on this date. She noted that Student had to be re-directed at least seven times, he pushed another child three times, and otherwise exhibited inappropriate verbal and physical behavior. Exhibit P-14. See also exhibit P-75 (observation note of gym on 11/20/03).
10. Parent’s e-mail of December 19, 2003 reflects her observations of Student in community settings, where she has seen no progress in Student’s ability to interact with familiar peers in an appropriate manner. In this e-mail, Parent also questions the appropriateness of Medfield’s consultant (Ms. Gibbons). Exhibit P-8.
11. An e-mail of January 10, 2004 from Parent discusses her observations of her son in a music class on December 12, 2003. Parent observed Student refusing to participate in activities, even when approached by the teacher on several occasions. She also observed her son hitting other children and otherwise exhibiting inappropriate behaviors. Exhibit P-7. See also exhibit P-70 (music observation of same date).
12. Parent observed her son in a health class on March 31, 2004. In her written report, Parent noted that Student separated himself and sat alone in the back of the cluster, clearly making a choice to be apart from the group. She observed no volunteering by her son or other interaction with anyone during the class. Exhibit P-50.
13. Parent again observed Student in a music class on April 2, 2004, as reflected within her written observation report. Parent noted that Student never raised his hand to volunteer or respond, and often appeared disengaged from the class activity. In her report, Parent also stated that she observed fidgety behavior, taking his shoes off and putting them on, and other similar behavior on the part of her son. Exhibit P-49.
14. In a comprehensive and lengthy document, dated May 2003, Parents provided input into goals and benchmarks in the IEP and areas of need to be worked on through direct instruction. The document notes, at the outset, that Student’s benchmarks are not currently written as measurable “and would need to be” and later asked (with respect to performance criteria) “How will the student be measured?” Exhibit P-25.
15. In an undated submission to Edward Hermann of the BSEA relative to a Team meeting on May 6, 2004, Parent set forth her concerns and frustrations regarding her working with Medfield staff towards providing her son with an appropriate education. Exhibit P-98. In this submission, Parent summarizes as follows:
Overall there is a significant breakdown in trust and a huge gap in the way the school perceives [Student] and the way [Student] functions in the community and at home. The school is constantly attempting to reduce services and minimize issues. Our concerns are discounted and ignored and the school blames issues with [Student] on our poor parenting skills.
16. In a five-page letter to Ms. McArdle, dated July 14, 2004, Parent detailed her concerns and recommendations regarding the specific language used within Medfield’s most-recently proposed IEP. Exhibits P-92, S-3.
17. Andrew Aspel , PhD, testified (by telephone) that he is a licensed school psychologist; he has worked for the Newton Public Schools for the past five years; and since 1998 he has been seeing children privately through his employment at Comprehensive Psychiatric Associates. He noted that he received his PhD in psychology in 1994, and that approximately half of his clients through the Comprehensive Psychiatric Associates are children with diagnoses on the autism spectrum, including Asperger’s Syndrome, and/or non-verbal learning disabilities.
18. Dr. Aspel testified that he has been working with Student and his family for two years, seeing Student for 45 minutes, twice per week. He explained that his work with Student has focused on improving Student’s ability to interpret his social world, to be aware of and regulate his behavior, to improve his pragmatic skills, to engage others more appropriately and maintain friendships, and to improve his ability to engage in age-appropriate play. He noted that his work also includes consulting to Parent in order to assist her to facilitate her son’s social development and to manage his inappropriate behaviors.
19. Dr. Aspel testified that over the two years during which he has worked with Student, Student has shown gains in many areas – for example, he has improved his ability to engage in a conversation (can now tolerate a conversation up to ten to fifteen minutes with Dr. Aspel if the topic is of interest to Student), and he is doing better at playing games and can better handle losing at a game. Dr. Aspel has also seen growth in Student’s understanding of himself. Dr. Aspel noted, however, that Student continues to get “stuck”, becomes anxious and rigid, and is not able to put his skills into practice in certain situations, particularly where the situation is not structured in a particular way, is unpredictable or involves a relatively large number of people. Dr. Aspel further noted Student’s limited ability to understand how others perceive him and that others may not understand his intentions.
20. Dr. Aspel testified that he sees Student within his office, which is a quiet space. He explained that he has observed Student outside of his office only once – at an ice cream social at school – but has heard/read reports from Parent and others regarding Student’s conduct within the home and community, and he has asked Student about his social interactions. Dr. Aspel did not appear to be familiar with the annual report of Student’s 2 nd grade teacher (exhibit S-4), and recalled that the only school-based person he has spoken with is a Medfield school psychologist who worked with Student during his 1 st grade.
21. Dr. Aspel testified that his recommendations regarding Student are contained within his letter of August 20, 2004 addressed “To whom it may concern”. In this letter Dr. Aspel recommended that Student have a shared aide in school as a “social coach” when Student appears stuck, frustrated or isolated. Dr. Aspel suggested in his letter that Student should have “social pragmatic training opportunities whenever possible” and that these opportunities should involve “typical” peers who are his age. Dr. Aspel testified that these services are necessary in order that Student learn and put into practice his social and pragmatic skills in more naturalistic settings. He suggested, in his testimony, that these pragmatic training opportunities occur “a few times” each week and involve situations in addition to lunch. Dr. Aspel also recommended “some sort of daily home/school communication system” as he has found it helpful in his work with Student to monitor Student’s school functioning and to be kept current regarding issues that need to be addressed in therapy. Exhibit P-89 (letter from Dr. Aspel).
22. Dr. Aspel wrote a “Community Observation” reflecting on his observation of Student at an evening ice cream social and book fair on March 12, 2004. Dr. Aspel noted Student’s behavior and concluded that Student has considerable difficulty approaching and relating to others and reading cues in a large group setting. Dr. Aspel recommended continuation of specific social pragmatic training for Student. Exhibit P-57.
23. Melissa McConville , MEd, testified and her resume reflects that she is a behavior analyst who has been providing consultation over the past nine years to school districts and parents (with the majority of consultation to school districts), particularly with respect to children on the autism spectrum. She received her MEd degree in behavior analysis in 1995. Exhibit P-122 (resume).
24. Ms. McConville initially came to know Student through her functional behavioral assessment of him in February and March 2004. Exhibit P-51 (report dated March 30, 2004). She explained that since this evaluation, she has been seeing Student (and his family) in their home and in the community for two hours per week. She noted that she has had the opportunity to observe Student at school last year and this year, at an ice cream social after school, and on a family trip to a museum. She stated that she has attended Student’s last three or four Team meetings.
25. Ms. McConville testified that she recommends that Student’s IEP include the provision of direct services to Student in the community, in addition to time spent providing parent training. She explained that the advantage of working directly with Student in the home is that the consultant would be able to provide behavioral interventions to Student, and Parents would then be able to see how to intervene with Student and follow through with these same kinds of interventions in the home and community.
26. Ms. McConville testified that Student presents in many different ways, depending on the circumstances and context. She explained that he has shown great improvement socially and behaviorally at school, although he continues to demonstrate subtle behaviors that, when they appear in contexts outside of school, lead to rigidity and inappropriate behavior. She observed, for example, that when his class was directed to split up into partners, Student went over to another child and wrapped his arms around that child; the other child struggled a little and then agreed to be his partner. She noted that with an aide, Student could be prompted to be more appropriate when this occurred, and the incident could be processed with Student at a later time. Ms. McConville testified in favor of a shared aide for Student to address this and similar incidents, as well as to assist Student to understand what he is being told by teachers and other staff in school.
27. Ms. McConville testified that outside of school, Student is able to engage appropriately with others within a familiar environment; but when the environment changes or is unfamiliar, he becomes rigid in thought process, becomes anti-social and is non-compliant, with behavior outbursts. She noted that Student often does not understand the perspective of others, and how they view him and his conduct; and he has difficulty regulating and controlling his body when over-stimulated. She explained that this then escalates, at times, into aggression. She concluded, in response to Medfield staff’s report of his progress in school, that Student is on a progression of developing excellent skills but continues to require a significant amount of intervention.
28. Ms. McConville testified that in addition to the “lunch bunch” which Student currently participates in once per week for thirty minutes, he needs to participate in a small group of “typical” children two times per week in order to imitate and learn more appropriate social and behavioral interactions and responses. She noted that because of his disability, Student will not learn these skills on his own without assistance.
29. Ms. McConville testified that she recommended that there be regular written communication between school and home, similar to what is currently being done (see exhibit P-127), but that she prefers that the communication indicate whether Student had an appropriate social interaction, for example, rather than numerically rating the social interaction.
30. Ms. McConville testified that Student and his family currently require the services that she has been providing (parent training regarding Student’s social and pragmatic skills, and his behavior). She explained that these services should not be reduced without an assessment and determination that fewer services are appropriate. She explained that although the current amount of time on the IEP (eight hours per month) is sufficient for providing both parent training and direct intervention to Student, it would be better to “frontload” her time, with as much as sixteen hours provided over the next month, with less time spent later. This would allow her to address certain issues in greater depth sooner.
31. Ms. McConville testified that it may be useful, as a vehicle to diffuse some of the relationship difficulties between home and school, to have a third party who can observe and understand what is occurring at both home and school and who can then communicate back and forth between home and school regarding issues of concern both to school staff and to Parents.
32. Ms. McConville testified that in addition to her home-based consultant role, there is a second consultant who advises school staff regarding Student’s social and behavioral issues, and that having two consultants (rather than a single consultant doing both tasks) limits the opportunities for consistency of approach between the school and home/community environments. She noted that consistency is important in order to promote generalization of what is learned within school and home. She explained that currently there is no communication between her and the school consultant or others within the school so as to ensure consistency of approach. She suggested that if there continue to be two, rather than one, behavior consultant, she should spend an additional one hour per month meeting with school staff and an additional one hour per month observing Student in school in order to ensure sufficient communication between her and school staff, and sufficient understanding of Student in different environments.
33. In her functional behavior assessment report, Ms. McConville generally supported the observations and recommendations contained within Dr. Frankhouser’s neuropsychological re-evaluation report. For purposes of preparing this report, Ms. McConville had observed Student in both structured and unstructured settings, and noted Student’s emerging self-regulation skills for his sensory issues in a structured and calm environment. She noted, for example, that in his classroom, Student “exhibited an ability to independently self-regulate and provide sensory input for his body.” However, she observed that outside of the classroom in an unstructured setting such as an ice cream social after school, Student had no ability to “control his body in space or internally” and he engaged in “many inappropriate behaviors that were dangerous” during a particular observation. She recommended that repetition and prompting in all environments are “crucial” to maintain and generalize the skills that he exhibits in a structured and calm environment. Exhibit P-51.
34. In her functional behavior assessment report, Ms. McConville supported the need for a shared aide in order to generalize new skills in a repetitive and consistent manner. Exhibit
P-51. Her recommendation regarding a shared aide is further detailed in her review of Student’s IEP. Exhibit P-88 (par. 1), S-9. In her functional behavior assessment report, Ms. McConville also emphasized the need for home support in order to provide consistency of expectations and teaching between home and school, and to enable Student to generalize his emerging skills. Exhibit P-51.
35. Ms. McConville authored a document entitled “Suggested text for [Student] Goals and Objectives” in which she proposes language to be used for Student’s goals and objectives in his IEP. Exhibit P-85.
36. Ms. McConville authored a document entitled “Review of IEP” dated August 28, 2004 in which she recommended that a shared aide and a social pragmatic skill session be added to the IEP. In this document, Ms. McConville concluded that “Some goals/benchmarks are not clear.” She further explained: “For example, who is responsible to review and document issues/skills on [Student’s] checklist? At what frequency is it done? Who is responsible for Theory of Mind expansion? Can this be done effectively with a share aide?” Ms. McConville then noted that goal # 1 could be more specific for Student’s current needs and provided proposed language. Exhibit S-9, P-88.
37. Ms. McConville, in an e-mail dated September 15, 2003 to Parent’s attorney, set forth the “approximate IEP goals” that she had previously e-mailed to Susan Gross on June 15, 2004. Exhibit P-96.
38. Joann Frankhouser , PsyD, testified and her resume reflects that she has been a pediatric neuropsychologist for thirteen years, providing therapeutic services as well as evaluations. She explained that currently she completes approximately 48 to 50 neuropsychological assessments each year. She also noted that since 1998, she has been a consulting school psychologist to the Marblehead Public Schools. Exhibit P-121 (resume).
39. Dr. Frankhouser testified that her most recent neuropsychological evaluation (an update of a previous evaluation) of Student was in March 2004. Exhibit P-52. She noted that in addition to seeing Student for formal testing, she has observed him at an ice skating gathering, at a social event at home, at school and at his afterschool program.
40. Dr. Frankhouser testified that in her opinion, Student is a bright and energetic boy with a lot of knowledge, but who has difficulty using his knowledge flexibly and consistently to guide his behavior in different settings. She explained that he relies on structure and routine, and that when these are present, he functions at his best and is better able to integrate; but when he becomes anxious, it is difficult for him to demonstrate (and act upon) what he knows.
41. Dr. Frankhouser testified that Student needs practice as well as direct teaching in order to process and help him to think about what has occurred. She explained that given his disability, his learning of more appropriate social and behavioral responses will not occur without assistance.
42. Dr. Frankhouser testified in response to the reports of Medfield staff that Student appears to be acting appropriately in school. She explained that when some of Student’s incidents at school are looked at in isolation, they appear to be normal; but within the larger picture of Student’s deficits and in light of the frequency of his aberrant responses, his interactions and responses are not appropriate and need to be addressed. She further explained that what are seen within school is the same behavior and social responses as are seen outside of school, but in a much “milder” form. She stated that, in her opinion, it is important to help Student within school to understand and remedy his deficits, so that his appropriate responses can be generalized to other settings. She explained that a shared aide would allow incidental teaching during school to address these issues. She also recommended pragmatic social groups, such as the “lunch bunch” to help Student learn these skills.
43. Dr. Frankhouser testified that it is important to have consistent teaching of Student both at home and in school. She suggested that it would be best to have one (rather than two) behavioral consultants to avoid the possibility of mixed messages. She also noted the usefulness of consulting to Student’s afterschool program to ensure consistency in all settings. She stated that the parent training consultant’s time should not be reduced without an assessment and determination that less time is warranted.
44. In her evaluation of Student of March 27, 2004, Dr. Frankhouser stated that of “greatest concern” are Student’s “adaptive functioning needs and continued pragmatic and social needs, particularly as regards the application of skills and knowledge of social mores he has acquired and can demonstrate (sometimes inconsistently) in more structured and routinized settings.” Exhibit P-52, page 8.
45. In this report (pages 9 and 10), Dr. Frankhouser specifically recommended that:
· Student be accompanied by his aide to unstructured activities (i.e., lunch when not participating in SLP [speech-language pathologist] -led “lunch bunch”, recess, specials and other free play activities) and the aide should be available to facilitate social interaction and communication during cooperative learning activities in the classroom. The aide should receive appropriate training and ongoing supervision in how to facilitate pragmatic and social skills.
· Student should continue to participate in a language group at school led by the speech-language pathologist. Student’s aide should be apprised of the skills being addressed and advised as to ways to facilitate their use during lunch, recess and cooperative learning activities. Communication with home and outside therapists should also be maintained so that these skills can continue to be fostered in community-based settings.
· Social and pragmatic skills should be addressed daily by a combination of both formal social pragmatic groups (i.e., led by the speech-language pathologist and school psychologist for a total of 2 or 3 groups per week) and informal groups facilitated by Student’s aide on the other days.
46. In order to include additional information from school staff regarding Student’s behavior and functioning within the school setting, Dr. Frankhouser reviewed the additional information on May 6, 2004 and wrote an addendum to her report of March 27, 2004. Her addendum indicates that Student’s school staff report that Student is not demonstrating behavior difficulties in school, and he is observed to present with age-appropriate social and adaptive skills, but that these are not observed in less structured settings. Exhibits P-101, S-13.
47. In the addendum to her report, Dr. Frankhouser notes the following pragmatic difficulties, as reflected in ratings from the afterschool site director (and as further reflected in observations of Dr. Frankhouser and reports by Student’s family):
Her ratings indicated [Student] to frequently expect others to know his thoughts/experiences/opinions even when such knowledge is not realistic, to frequently lack subtlety and precision in his expression of emotion, to frequently show less eye contact in conversation and to be uninterested in his partner’s side of a conversation, to be less empathic, and to have problems repairing a conversation.
48. Dr. Frankhouser concluded in her addendum that Student demonstrates social and pragmatic skills in structured settings but he does not carry over these skills into less structured settings, and that there is an inverse relationship between Student’s social/pragmatic/behavioral difficulties and the degree of structure available to him. She further concluded that
Student requires direct instruction and facilitation in less structured settings so as to generalize the social, pragmatic, and self-control skills that are observed being used in school. To facilitate this generalization of social and self-control skills, weekly consultation by a behavior specialist … should also be provided to [Student’s] afterschool care staff and parents to assist them in helping [Student] to generalize his skills to the community and home settings (e.g., addressing his needs in afterschool activities, sports teams, social events, etc.)
49. Also, Dr. Frankhouser’s addendum recommended that Student’s IEP include goals for using these skills in all settings, and that a questionnaire be used to monitor his social/pragmatic skill development and generalization. She recommended that the questionnaire be completed by staff/Parents in each of the settings where these skills are to be demonstrated. Exhibits P-101, S-13.
50. Patricia Lavelle testified that she has been a speech-language pathologist at Medfield’s Wheelock School for the past ten years, and previously was a speech-language pathologist in the Burlington Public Schools for sixteen years.
51. Ms. Lavelle testified that she has provided services to Student during all of the last academic year and during the current academic year. She explained that last year and this year she has led an inclusion social-pragmatics group (“lunch bunch”) in which Student has participated for thirty minutes, once per week with typical peers to address his social and pragmatic skills. She further explained the following additional services — last year, she provided Student with an additional pull-out service for thirty minutes, once per week, as well as ten minutes per week for assessment of certain speech-language skills; this year she is providing Student with an additional pull-out service for fifteen minutes, once per week, which is a “circle of friends” with typical peers to address social and pragmatic skills.
52. Ms. Lavelle testified that in the “lunch bunch” and pull-out services, Student performed at a high level and, as the last academic year progressed, he needed little facilitation – mostly, she provided comments to Student regarding his competency. She sees Student as being accepted by his peers, and acting appropriately. She opined that Student is capable of implementing his pragmatic and social skills within a structured environment, and that any issues or difficulties that may arise in these areas can be appropriately addressed by Student’s teacher without the need for an aide.
53. Ms. Lavelle testified that she has observed Student in a variety of settings at school, including indoor and outdoor recess, gym, library and art, and has reviewed with Student’s 2 nd grade teacher, her annual review progress report (exhibit S-4). Ms. Lavelle explained that she sees in Student a “pretty typical child” with respect to his ability to attend, participate and relate to his peers – he did not stand out as inappropriate or as having any aberrant behavior, and he was easily re-directed as necessary. She believes that Student is very successfully demonstrating his ability to implement his social and pragmatic skills within the classroom and other settings within the school day. She noted that he appears to be very happy in school this year and to have friends.
54. Ms. Lavelle testified that she has not observed Student outside of school but has read reports regarding his behavior in that setting. She recognized Student’s significant social/behavioral difficulties outside of the school environment; and she expected that learning to generalize to home and community the social and pragmatic skills (which he has learned and demonstrated at school) would be a long-term process. She also agreed that a consultant was needed to help Parents address these issues outside of school.
55. Ms. Lavelle testified that the current daily protocol for communicating with Parents is not appropriate because Student is doing so well that there is little to report, and she suggested instead a weekly reporting tool which describes more qualitatively Student’s pragmatic and social behavior, but not necessarily reports Student’s progress regarding every skill that is being addressed at school.
56. Elizabeth Donalds testified that she has been a school psychologist at Medfield’s Wheelock School for the past four years, and is in her 8 th year as a school psychologist. She explained that during the past and current academic years, she has provided Student with thirty minutes, once per week, of small group services (Student and one other child). She noted that she also has provided thirty minutes, once per week, of consultation to the school team regarding Student.
57. Ms. Donalds testified that last year, Student made significant progress regarding his social skills and working with his frustrations (for example, coping skills). She noted that Student learned to identify his emotions, although she stated that empathy was an area of weakness. She explained that this year there are new goals for Student, focusing on independently identifying emotions in himself and others in both structured and unstructured situations. She noted his success so far this year – he is now able to say that he is angry although he is having difficulty with discussing sadness. She explained that he will usually know if he is doing something inappropriate but may not be as concerned about others’ feelings. She believes that all of Student’s skills are within an age-appropriate range at school, and that any issues or difficulties that may arise in school can be appropriately addressed by a teacher (through common teacher practices) without the need for an aide.
58. Ms. Donalds testified that in her opinion once per week is more than sufficient for written communication from school to home, and that this communication can address any unusual or important incidents or concerns.
59. Meg Singer testified that she has been employed as an occupational therapist at Medfield’s Wheelock School for the past six years. She testified that during the last and current academic years, she has been providing occupational therapy services to Student for thirty minutes, twice each week; and she provides consultation for thirty minutes, once per week.
60. Ms. Singer testified that the direct services to Student are to teach him how to use strategies to self-regulate his sensory input. She explained that Student has learned these skills, that teachers rarely need to intervene to address his sensory issues, and that in her opinion there is no need for Student to continue receiving direct occupational therapy services. She opined that the consultation services continue to be useful to instruct teachers regarding Student’s sensory diet and how it should be implemented; she is confident that his teachers can implement this successfully. She explained that she therefore supported the proposed IEP which would eliminate the direct occupational therapy services, and maintain her consultation services.
61. Ms. Singer testified that Student appears to be happy in school, he follows classroom routines and he works well with other students.
62. Mary Ann Gibbons testified that she is the program director of ACCEPT Education Collaborative. She explained that she oversees the staff at the Collaborative and provides educational and behavioral consultation. She noted that she received her masters degree in psychology in 2000, is certified as a regular education teacher, and has been working with children with profiles similar to Student for seventeen years.
63. Ms. Gibbons testified that she has been retained by Medfield to provide consultation to Medfield staff regarding Student. She explained that last year, she observed Student within the school setting (including a variety of classrooms as well as less structured times such as gym and recess) eight times during the last academic year and once this year. (Individual observation reports of Ms. Gibbons are found at exhibits S-7 (classroom observation), P-6 (observation during lunch, recess and classroom), P-17 (observation of class), P-19 (observation in class), P-53 (observation in gym), P-64 (observation in morning meeting, art and classroom), P-69 (observation of indoor recess, story, work time and music), P-71 (observation of lunch, recess and classroom), P-78 (observation of classroom), P-79 (classroom observation).) Ms. Gibbons testified that during all of her observations, Student demonstrated appropriate behavior and interactions with others, including appropriate social skills; she has observed his functioning as a typical 2 nd grader last year. Ms. Gibbons prepared a written summary report, dated May 3, 2004, which summarized eight observations of Student. In her report, Ms. Gibbons stated that there had been some “minor” social/behavioral issues in the beginning of the school year (such as Student pushing his way into the front of a line), but that during all of the observations, Student was “able to function independently throughout the classroom and the school and followed directions well”, that he was observed “on a couple of occasions to receive assistance from the aide for a very brief period”, but that he did not require any more assistance from the aide or teacher than the other students in the classroom. Student Exhibit S-8 (consult summary).4
64. Ms. Gibbons testified that to address appropriately Student’s difficulties within the home and the community, parent training (but not direct intervention to Student) is appropriate. She explained that Parents need to be trained and to become better equipped to address Student’s social and behavioral difficulties so that they can become life-long teachers of the child; she did not recommend direct intervention by a professional in the home/community as this would provide only a short-term solution. She noted that what Parents need to be able to do regarding Student (in order to address his social, pragmatic and behavioral deficits) can be easily learned through Parent training.
65. Ms. Gibbons testified that she did not see any difficulty with two (as compared to one) consultants — one to the family and one to the school. She indicated that she had only spoken to Ms. McConville during Team meetings. She also indicated that it is not a problem that Parent has little trust in her – this is because she is consulting to the school staff, not to Parent.
66. Ms. Gibbons testified that if Student’s afterschool program is indicating that there are social/behavioral issues with Student that should be addressed, it would be appropriate to provide this program with consultation, either through her or Ms. McConville.
67. Kathleen McArdle testified that for the past nine years she has been the Director of Pupil Services at Medfield. She noted her previous experience as a director of special education for seven years in other school districts, as well as her thirteen years experience in Boston first as a special education teacher, then as a special education supervisor and then as a special education administrator.
68. Ms. McArdle explained some of the difficulties and frustrations she has faced trying to respond to Parent’s concerns, and that this led to her initiating the Hearing Request in the present dispute in order to bring finality to Student’s IEP through a BSEA Hearing Officer’s decision.
69. Ms. McArdle testified that she believes it would be appropriate for Ms. McConville, in her role as Parent trainer, to provide direct intervention to Student but only if it is done when a family member is present and the direct intervention is done for the purpose of modeling and therefore training a family member.
70. Ms. McArdle testified that Ms. Gibbons’ consultation to Medfield staff has been successful and there is no reason why this consultation should not continue. Ms. McArdle explained that she believes it appropriate for Ms. McConville to continue to consult with Parents but that she would not recommend that Ms. McConville consult to Medfield staff. She testified that she believed that it was satisfactory to have two (rather than one) consultants.
71. Ms. McArdle testified that Medfield’s proposed summer program for Student (Discovery Program) had been proposed to Parents the previous year. She explained that, in her opinion, the program is appropriate to avoid regression. She noted that the director is a special educator who understands and is able to address the needs which Student has; the staff are well-trained and organized; the program has a structure similar to school; and it is a social (rather than an academic) program with “fun” activities, which can be modified as needed to make them appropriate for a particular student. She further noted that the primary area of concern for Student is to work on his emerging social skills, which the summer program addresses.
72. Ms. McArdle testified that in her opinion all of the goals in the most-recently-proposed IEP are measurable. She noted that her experience in this area includes teaching a graduate level course which addressed writing IEP goals. She understands that Student’s service providers have found the IEP goals to be measurable.
73. Ms. McArdle testified that she agreed with Parent that generalization of Student’s skills is an appropriate area of concern for Medfield, and this is explicitly acknowledged within the IEP proposed by Medfield. She stated, however, that the disagreement with Parent pertains to how to address this issue.
74. A letter from Linda Kipper , dated January 23, 2004, explains that she and her family have known Student for several years, and her daughter is friends with Student. Ms. Kipper explains that she has observed Student in his classroom (when she has volunteered there) and in the community. She states that in several social situations (lunch at school, watching a play, backstage after the play) she has observed Student “shrink from contact with his peers without any apparent reason.” During the play, she noticed that Student seemed to be particularly isolated and was later unwilling to acknowledge her daughter when they went backstage. Exhibit P-3. See also letter from Kipper, dated January 18, 2004. Exhibit P-68.
75. A neurology consultation report by Margaret Bauman , MD, (evaluation dated 1/5/04) recommended that Student receive a shared aide in order to assist Student with academic skills. Exhibit P-4.
76. A note from Grzegorz Maliszewski , dated December 2003, states that he has worked with Student for the last four years and has observed Student’s “poor” social skills. Mr. Maliszewski does not explain how he has known Student. Exhibit P-5. See also exhibit P-73 (similar note from the same person).
77. A School Consultation report of 6/6/03 by Lori Hodgins , MSEd, recommended that the teaching assistant assigned to support Student in the classroom should take on the role of social coach/interpreter. Exhibit P-24.
78. A letter “To whom it may concern” dated September 13, 2004 from Nathan Armstrong indicates that Mr. Armstrong currently is Student’s au pair . In his letter, Mr. Armstrong notes that Student’s behavior has become more difficult, making it “harder and harder to look after” him. Mr. Armstrong noted, for example, that if after 7 PM, Mr. Armstrong asks Student to do something, “he automatically collapses on the floor and claims that he is too tired, or his back hurts.” Mr. Armstrong noted that in the community, Student “resorts to violence and abuse eg, poking, kicking and grabing [sic].” Mr. Armstrong does not indicate in his letter how much time he spends with Student or how long he has been working with Student. Exhibit P-86.
79. Student’s report card for 2 nd grade indicates that in every area for all three terms, Student scored a grade of either 4 (the highest grade, which refers to “consistently”) or 3 (the second highest grade which refers to “usually”), except with respect to the completion of homework in which Student received a grade of N/A for the first term, a grade of 4 for the second term and grades of 1 / 2 for the third term. Exhibit P-94.
80. Student’s 2 nd grade teacher (Ms. Mitchell) prepared a “Progress Report, Annual Review” dated May 6, 2004. Ms. Mitchell’s report explains that Student demonstrated “steady progress” in 2 nd grade, making progress in all areas of the curriculum. The report further explained that Student was very successful in learning and understanding classroom routines and expectations, transitioned well from one activity to another and required few cues to stay on task. The report noted that Student was also very flexible when faced with last minute changes. Exhibit S-4.
81. Ms. Mitchell’s report discussed Student’s successful interactions with his peers — this included participating in discussion groups, listening attentively, following along, reading when it was his turn, and sharing his book without teacher intervention. Ms. Mitchell’s report noted that in the classroom, Student participated in games, did not hesitate to locate a partner and independently negotiated such things as which game they will play and who will take the first turn. Exhibit S-4.
82. Ms. Mitchell’s report explained that Student often provided a leadership role in which he reminded other students to stay on task and re-directed those who were drifting. Ms. Mitchell found that the other students responded positively to Student’s approach.
Exhibit S-4.
83. Ms. Mitchell’s report stated that early in the school year, Student occasionally displayed difficulty when faced with losing a game, but as the year progressed, he became much more capable of dealing with a loss. Ms. Mitchell further noted in her report:
It has been quite some time since any problematic behaviors have been observed in the classroom. Instead, [Student] can be seen helping others with strategies or encouraging other players in the game, all without teacher prompting. This same behavior has been observed at recess. . . . [Student] typically assesses a situation in which choices are presented and joins activities which interest him most. This is accomplished independently and with age appropriate strategies.
84. Ms. Mitchell’s report concluded that Student conformed to all classroom routines; he understood what expectations were placed upon him and independently worked to meet them; typical classroom management techniques were effective in keeping Student focused and following directions; and she was able to manage Student in the classroom without assistance. Exhibit S-4.
85. A report from the Medfield Afterschool Program (MAP) Site Director describes Student’s program as providing less structure than during the school day, but does follow a predictable routine on a daily basis. The MAP report portrays a mixed picture of Student’s social and pragmatic skills. The report indicates progress in these areas and at the same time portrays a child who, at times, needs re-direction and guidance regarding his manners, conversations and behaviors. Exhibit S-11. See also exhibit S-12 (MAP Child Experience Report).
DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act5 and the state special education statute.6 As such, Student is entitled to a free appropriate public education (FAPE).7 Neither his eligibility status nor his entitlement to FAPE is in dispute.
FAPE requires that Student’s individualized education program (IEP) be tailored to address his unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress in the least restrictive environment.8
Although no written arguments have been submitted in this dispute, Parent has prepared and submitted to me, through her attorney, a written statement of “concerns and proposed remedies” dated September 2004 ( Statement of Concerns ). I will consider this document to be argument and utilize it when I address specific issues, below, in order to help me understand Parent’s concerns as well as the remedies she proposes to address those concerns.
I will separately consider each of the issues in dispute, as listed above in the statement of Issues.
Social competency education within the school .
Contested issue and proposed IEP : This contested issue is whether the proposed IEP adequately addresses Student’s needs for social competency education; and if not, what additional services are required. At this point in the Decision, I consider only those services that would be provided within the school. In the section of this Decision immediately following the present section, I will consider home-based services which address Student’s social competency needs.
There are essentially two parts to this contested issue. The first part is whether Medfield’s IEP is legally sufficient to address Student’s social competency deficits which manifest within the school environment, without considering Student’s social competency deficits within the home and community. The second part is whether the services which Medfield has proposed to be delivered within the school environment are sufficient for purposes of allowing for generalization of his social competency skills to other settings and thereby would allow Student to make meaningful and effective progress regarding his social deficits within the home and community environments . Both parts will be addressed below.
The proposed IEP (for the period June 10, 2004 through June 10, 2005) includes the following direct services at school to address Student’s needs regarding social competency:
· Speech-language services within the general education classroom for thirty minutes, once per week. (The speech-language pathologist leads a “lunch bunch” with Student and typical peers to work on his social and pragmatic skills.)
· Speech-language pull-out services for fifteen minutes, once per week. (The speech-language pathologist leads a “circle of friends” with Student and typical peers to work on his social and pragmatic skills.)
· Social/emotional pull-out services from a psychologist for thirty minutes, once per week. (The school psychologist leads a small group — Student and one other special education student — to work on social skills.)
Parent’s concerns and evidence in support of those concerns : In her Statement of Concerns , Parent explains that Student has great difficulty interacting appropriately in spontaneous and unpredictable social situations, particularly in unstructured settings and in settings outside of school. Parent seeks (1) a social skills curriculum, (2) “direct and reliable” adult teaching and support in both structured and unstructured settings, (3) a dedicated and trained support person to help Student meet objectives regarding social competency education, (4) explicit objectives in the IEP to address this area of concern, and (5) three social skill groups that include typical peers.
Through unrebutted testimony and reports of her three experts (Dr. Frankhouser, Dr. Aspel and Ms. McConville), Parent established that Student has social and pragmatic deficits at school. For example, within her most recent report (after considering the reports from Student’s teacher and afterschool program director), Dr. Frankhouser noted the following social competency deficits within the school environment: Student expects others to know his thoughts/experiences/opinions even when such knowledge is not realistic, he lacks subtlety and precision in his expression of emotion, he shows less eye contact in conversation, he is uninterested in his partner’s side of a conversation, he is less empathic, and he has problems “repairing” a conversation. Dr. Frankhouser noted that these behaviors that are observed within school are the same behaviors and social responses as are seen outside of school, but in a much “milder” form. Facts, pars. 42, 48.
Of Parent’s experts, Ms. McConville has observed Student the most within school and home/community. Her school observations began on February 4, 2004 and most recently occurred on September 21, 2004. Ms. McConville cited an example of Student’s inappropriate social skills at school during a gym period which Ms. McConville observed on September 21, 2004. When Student’s class was directed to split up into partners, Student went over to another child and (presumably without verbally asking the child to be his partner) wrapped his arms around that child; the other child struggled a little and then agreed to be his partner. An example provided by Dr. Frankhouser in her testimony was that Student took another child’s pencil without asking permission to do so and did not appear to be concerned about or aware of the other child’s perception of the incident. Parent has also submitted several documents reflecting her own observations of Student’s aberrant behavior at school (such as taking off and putting on his shoes), and Parent has observed that her son often appears disengaged from classroom and gym activities. Exhibits P-7 (observation of music), P-14 (observation of gym), P-49 (observation of music), P-50 (observation of health).
Dr. Frankhouser explained (and Ms. McConville agreed) that when some of Student’s incidents at school are looked at in isolation, they appear to be normal; but within the larger picture of Student’s deficits and in light of the frequency of his aberrant responses, his interactions and responses are not appropriate, reflect more serious underlying deficits related to his disabilities and should be addressed through special education services within the school environment. Facts, par. 42.
Parent’s concern is not simply that Student’s social deficits exist in school and therefore should be addressed within that environment. Perhaps more importantly, Parent seeks to address these deficits within the school environment in order to promote generalization of his social competency skills to other settings and thereby allow Student to make meaningful and effective progress regarding his social deficits within the home and community environments .
Parent’s focus on the need to generalize Student’s skills to the home and community is grounded on the fact, undisputed by the parties, that all of Student’s more significant social difficulties are manifesting themselves within Student’s home and community. Parent provided persuasive evidence of Student’s difficulties with social and pragmatic skills at home and in the community. These difficulties contrasted with Student’s reported social successes within the school environment. See, for example, testimony and reports of McConville (Facts, pars. 27, 33), Frankhouser (Facts, pars. 42, 46), Aspel (Facts, pars. 20, 22). There is further support within other documents. See also exhibits P-3 (letter from Kipper), P-68 (letter from Kipper), P-78 (letter from Armstrong). Parent properly focuses much of her attention on what special education services and supports should be in place to adequately address these home/community social deficits.
Medfield’s witnesses also acknowledged the existence of (and the need for Medfield to address through its IEP) Student’s social and pragmatic deficits within the home and community environments. Testimony of Lavelle (Facts, par. 54), McArdle (Facts, par. 73); exhibits S-2, P-95, P-118 (IEP).
To improve Student’s social competency in school and allow greater generalization of his skills to other environments, Parent’s experts (Dr. Frankhouser, Ms. McConville and Dr. Aspel) recommended that Student be provided a shared aide who would address Student’s social difficulties at school. This would occur through incidental teaching as the opportunities arose, particularly in less structured settings during the school day. The shared aide would receive specialized training regarding his/her responsibilities. Dr. Frankhouser, Ms. McConville and Dr. Aspel also recommended pragmatic social groups, such as the “lunch bunch”, to help Student learn these skills. The pragmatic social groups would allow for modeling of “typical” students and direct instruction to be provided Student either by a speech-language pathologist or other trained staff person. Each of the three experts differed somewhat regarding the number of social groups that are needed. Facts, pars. 21, 26, 28, 33, 34, 42, 45.9
Although I consider Dr. Frankhouser, Dr. Aspel and Ms. McConville to be credible, expert witnesses who have testified as to what they believe to be in Student’s best interests, I am not persuaded that the law requires Medfield to provide the additional services which they recommend.
Student’s progress and his need for additional services : There was persuasive testimony from Medfield witnesses, as well as documentary evidence, in support of Medfield’s position that Student has made substantial progress regarding his social (and related behavioral) issues at school. As compared to Parent and her experts who were able to observe Student occasionally within the school environment and who read reports of others who work there, the Medfield staff have a more complete understanding of Student’s social and pragmatic skills and behavior within the various school environment. Testimony of Lavelle (Facts section of this Decision at pars. 52-54), Donalds (Facts, par. 57), Singer (Facts, par. 60); exhibits S-4 (annual progress report of teacher, Ms. Mitchell, summarized in Facts, pars. 80 through 84), S-7 (classroom observation), S-8 (consult summary), S-24 (progress reports), P-6 (observation during lunch, recess and classroom), P-12 (progress report regarding pragmatic language skills), P-17 (observation of class), P-19 (observation in class), P-53 (observation in gym), P-64 (observation in morning meeting, art and classroom), P-69 (observation of indoor recess, story, work time and music), P-71 (observation of lunch, recess and classroom), P-78 (observation of classroom), P-79 (classroom observation).
Parent’s evidence did not rebut (and occasionally confirmed) the conclusion that Student has made significant progress regarding his social needs within the school environment. For example, Parent’s behavior expert (Ms. McConville) testified that Student has shown significant improvement socially and behaviorally at school, and her written report noted Student’s improvements in this area. Exhibit P-51. Facts, pars. 26, 33.
In addition to demonstrating significant progress, the Medfield witnesses and reports were persuasive that notwithstanding certain areas of continuing weakness (such as limited empathy and limited ability to understand how others perceive him), Student appears and acts very much like a “typical” student at school (not only in the classroom but in less structured settings such as recess), and his areas of weakness can be addressed appropriately through the services proposed within the IEP.
In 2 nd grade, for example, Student was successful in learning and understanding classroom routines and expectations, including interactions with his peers. He was able to participate in discussion groups, listening attentively, following along, reading when it was his turn, and sharing his book without teacher intervention. He participated in games, did not hesitate to locate a partner and independently negotiated such things as which game they will play and who will take the first turn. Student’s 2 nd grade teacher reported that Student conformed to all classroom routines, he understood what expectations were placed upon him and independently worked to meet them. The teacher noted in her May 6, 2004 report that “[i]t has been quite some time since any problematic behaviors have been observed in the classroom”. On those occasional instances where Student has exhibited inappropriate social behavior, they have been addressed by his classroom teacher, the speech-language pathologist or the school psychologist who are working with him without the need for an additional aide as a social coach or social skills teacher. Student’s 2 nd grade teacher concluded that she was able to manage Student in the classroom without assistance, utilizing typical classroom management techniques that were effective in keeping Student focused and following directions. Facts, pars. 53, 57, 60, 63, 80 through 84.10
Medfield’s view of Student’s level of social functioning within the school environment was supported by the Functional Behavioral Assessment submitted by Parent’s behavior expert (Ms. McConville). As part of her assessment, Ms. McConville observed Student in his 2 nd grade classroom on February 4, 2004 at the Wheelock School and recorded her observations and comments. What is revealed by Ms. McConville in her report is a student who has certain occasional aberrant behaviors (such as taking off his shoes, shaking his leg and lying on his stomach) but who, at the same time, is functioning independently, appropriately and successfully within the classroom environment. Exhibit P-51. What Ms. McConville reported from her observations of Student in school is similar to what Medfield’s expert (Ms. Gibbons) reported after observing Student within the school setting (including a variety of classrooms as well as less structured times such as gym and recess) nine times during the last academic year and once this year. See Facts, par. 63.11
This evidence persuades me that Student’s social deficits and aberrant behaviors have been and can continue to be appropriately addressed through the interventions of Medfield staff, without the need for an aide.
I also note that Medfield’s IEP provides for a “lunch bunch” for a half hour each week, as well as a “circle of friends” for fifteen minutes each week, during which Student’s social and pragmatic skills are addressed by a speech-language pathologist. The testimony of Medfield’s speech-language pathologist (Ms. Lavelle) was persuasive that Student made significant progress in this area last year, with the result that by the end of the school year, little more was needed during “lunch bunch” than her providing comments to Student regarding his competency. I also note that the neuropsychologist retained by Parent (Dr. Frankhouser) recommended two or three opportunities with typical peers for instruction regarding Student’s social and pragmatic issues. The proposed IEP provides for two opportunities with typical peers (the “lunch bunch” and the “circle of friends”) and a third opportunity with another special needs student (pull-out services with the school psychologist) for direct instruction to address Student’s social skills. Facts, pars. 45, 51, 57.
This evidence persuades me that Student’s social deficits have been and can continue to be addressed appropriately through the services now proposed within the IEP without additional direct instruction, not only for the purpose of addressing his in-school social and pragmatic skills but also for purpose of generalizing these skills to other settings.
Parent’s proposed services would benefit Student but are not required : By reaching the above conclusions, I do not intend to imply that what has been recommended by Parent, Dr. Frankhouser, Dr. Aspel and Ms. McConville would not likely benefit Student. I accept their observations (as well as their arguments) that Student’s aberrant social behaviors are occurring within the school setting, that these behaviors should be addressed within that setting and that these behaviors are sufficiently mild so that they may be missed occasionally by school staff who typically have responsibility for a group of children. A shared aide who is properly trained would undoubtedly pick up on an occasional social deficit that might be missed by others more generally responsible for Student, and the shared aide might more likely ensure that once a social mistake or misunderstanding is identified, it is later processed and addressed in a way that is most helpful to Student.
Similarly, an additional opportunity for formal groups with typical peers regarding social and pragmatic skills, as recommended by Ms. McConville, would likely benefit Student by providing him more opportunities for direct instruction on his social and pragmatic skills. I accept as a given that virtually any additional services within the school environment that further address Student’s social deficits will likely have a positive impact on his social deficits at school and, at least indirectly, on his social deficits within the home and community.
I also note that it is understandable that Parent has vigorously pressed for these additional services. She is a highly engaged and motivated Parent who has observed first hand in many different environments her son’s social, pragmatic and behavioral difficulties, and it is apparent that she is fully committed to obtaining the best services for her son in order to help him function more appropriately within the school and community environments.
The evidence of how Student’s special education services may be improved does not persuade me, however, that I may order Medfield to provide the recommended additional services. Medfield is not obligated to provide the best special education and related services, nor does Medfield need to provide those services specifically requested by Parent or her experts, so long as what is offered by Medfield is reasonably calculated to result in Student’s making the requisite educational progress with respect to his identified special education needs. The law requires only that the special education and related services be reasonably calculated to result in meaningful and effective progress. I have no authority to order Medfield to do more than is necessary to meet this legal standard.12
Finally, I note that Student’s social and pragmatic deficits that manifest themselves within the home and community environments (which are the deficits of greatest concern) can be addressed more directly through appropriate home-based consulting services as opposed to increases in the school-based services. The adequacy of Medfield’s proposed home-based services will be addressed in the next section of this Decision.
Findings and conclusions : I find that Medfield, within its IEP, has proposed school-based services which are tailored to address Student’s unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress regarding his social competence. Parent is not entitled to any relief with respect to this issue.13
Home-based consulting services .
Issue in dispute : The second issue listed in the statement of Issues, above, is whether the proposed IEP appropriately addresses Student’s need for home-based consulting services; and, if not, whether the IEP should include a definition of home-based consulting services that includes direct services to Student, whether there should be measurable objectives for such services, and whether there should be a plan to decrease such services only with evidence of sufficient progress rather than automatically through the year as currently provided in the proposed IEP.
The proposed IEP (for the period June 10, 2004 through June 10, 2005) includes the following Parent consult services:
Parent Consultation by a Behavior Analyst from 7/1/04 to 6/30/05 pursuant to the following schedule: 8 hours per month from July-October; 4 hours per month from November-February; and 2 hours per month from March-May. Parents are to be invited to a review meeting in November with the behavior consultant, special education director and at least one school-based service provider to assess the program, and a second review meeting in February/March.
As discussed in the section of this Decision immediately above, the undisputed evidence is that Student has substantial social, pragmatic and (related) behavioral deficits that manifest themselves within the home and community environments. Medfield’s witnesses did not disagree (and several affirmatively agreed) with the need to provide services within the IEP in order to address appropriately these deficits. Testimony of McArdle, Gibbons, Lavelle. Facts, pars. 54, 64, 73.
Number of hours needed : The principal method of addressing these deficits is the provision of training to Parents so that the Parents will be able to address appropriately Student’s social (and related behavioral) deficits as they arise within the home and community. It is not disputed that at the present time, eight hours per month is an appropriate amount of consult services for the purposes of training Parents. I also note that the expert (Ms. McConville) who has been engaged for this purpose is acceptable to both parties to provide these services.
In her School-Based Consult Summary, Medfield’s autism consultant (Ms. Gibbons) recommended that the Parent consult services be faded out over time. Exhibit S-8. Apparently on the basis of this recommendation, Medfield structured these services within its proposed IEP so that they would be automatically reduced in November from eight hours per month to four, and again automatically reduced in March from four hours per month to two. Parent objects to this automatic reduction of home-based services, arguing that any such reduction must be based upon a demonstration of reduced need. For the following reasons, I agree with Parent in this regard.
Neither Ms. Gibbons nor any other Medfield witness provided any further explanation or justification for this fading of services, and one is left to guess as to what rationale might support it. Perhaps the most logical argument would be that Parents will likely be sufficiently trained through the number of hours proposed by Medfield, but Medfield provided no evidentiary basis from which I would be able to make this prediction.
Parent’s experts (Dr. Frankhouser and Ms. McConville) were persuasive in their testimony and I so find that the eight hours per month is necessary now and that any appropriate reduction in services should be proposed only after a careful review over a period of time, and a determination made at that time that fewer hours would be sufficient. In other words, it is not possible to predict at this point in time that fewer than eight hours per month will be needed over the term of the IEP; and if fewer than eight hours is needed, what the appropriate number of hours would be. Facts, pars. 30, 43. See also exhibits P-88, S-9 (par. 3).
Direct services by the consultant : A related issue in dispute is whether Student should also receive direct intervention services from the Parent consultant (Ms. McConville). Currently, the IEP Parent consultation services do not allow for Ms. McConville to intervene directly with Student to address his behaviors. Parent has argued that the Parent consultant should be able to intervene directly with Student in the home or community, in addition to her training Parents how to respond to Student, regardless of whether the direct intervention is used to train Parents.
Ms. McConville testified that she recommends that Student’s IEP include the provision of direct services to Student in the home and community. She explained that the advantage of working directly with Student in this way is that the consultant would be able to provide behavioral interventions to Student, and Parents would then be able to see how to intervene with Student and follow through with these same kinds of interventions in the home and community when the consultant is not present – essentially, modeling appropriate responses to Student as a training vehicle for Parents. Ms. McConville testified that providing this direct intervention to Student would not increase the time needed for Parent consulting. Facts, par. 25.
In her testimony, Ms. Gibbons disagreed. She explained that Parents need to be trained and to become better equipped to address Student’s social and behavioral difficulties so that they can become life-long teachers of the child; she did not recommend direct intervention by a professional in the home/community as this would provide only a short-term solution. However, she did not directly address the possibility of utilizing direct intervention as a training tool. Facts, par. 64.
Medfield’s Director of Pupil Services (Ms. McArdle) appeared to agree with Ms. McConville. Ms. McArdle testified that she believes it would be appropriate for Ms. McConville, in her role as Parent trainer, to provide direct intervention to Student but only if it is done when a family member is present and the direct intervention is done for the purpose of modeling and therefore training that family member. Facts, par. 69.
During closing arguments, Medfield’s attorney made clear that Medfield would not object to the Parent consultant’s services including direct intervention so long as it is done in the presence of and for the purpose of training Parents or another primary-care provider (including, for example, the family’s au pair ).
I find that the weight of the evidence is that Parent consulting services should include direct intervention to Student provided that any such direct intervention is done in the presence of a family member (such as a parent or step-parent) or other primary-care provider (such as an au pair ), and is done for the purpose of training that person through modeling. It is anticipated that providing direct intervention services to Student will not increase the total amount of Parent consultation time over the course of the IEP.
Consistency between home/community and school : A related issue is the need for consistency of approach between those working with Student within the school setting and the home/community setting. The undisputed evidence was that Student’s social competency education within the school environment and Student’s social competency education within the home and community environments must be consistent in order for them to be effective. Facts, pars. 25, 43. Parent correctly has emphasized the importance of this. Towards this end, Parent seeks to have a single expert advise both school staff and Parents regarding Student’s social skills deficits.
For reasons explained in the next section of this Decision, I disagree with Parent that Medfield must hire a single consultant for both school and home/community. However, the implications of having two consultants is that the Parent consultant will need additional time each month to observe Student within the school (and possibly afterschool14 ) environment(s) and to communicate with Medfield (and possibly afterschool) staff regarding what they and she are doing to address Student’s social competency needs. It is only through this process that the Parent consultant will be able to provide the requisite consistency between the school, home/community and (possibly) afterschool environments. Ms. McConville’s undisputed testimony was that this would require an additional two hours (one hour of observation and one hour of meeting time) each month of her time. Facts, par. 32.
“Frontloading” and other adjustments of service hours : A related issue is whether the eight hours of Parent consult per month (which I am increasing to ten hours) should be provided at the same number of hours each month, or as Ms. McConville recommended, should be “frontloaded” to allow a greater number of hours in the next month or so and a reduced number of hours some time thereafter. Ms. McConville persuasively testified that it would be better to “frontload” her time, with as much as sixteen hours provided over the next month or so, with less time spent later. This would allow her to accomplish more in the earlier phases of the training and increase the overall efficiency and effectiveness of her training over the course of the IEP. Facts, par. 30. I agree with Ms. McConville that she may frontload her time, so long as she does not exceed an average of ten hours per month over the remainder of the term of the IEP.
I also note that the IEP calls for periodic review of the Parent consulting services. Parent agrees that these reviews are appropriate. It is anticipated that these reviews will provide an appropriate opportunity for the parties to consider whether Parent consulting services should be adjusted. It is hoped, based upon Ms. McConville’s testimony, that her services may be able to be reduced significantly over time and eventually will no longer be needed.
Findings and conclusions : Parent consult services shall be provided for an average of ten hours per month. The precise number of hours delivered each month shall be determined by the Parent consultant, provided that she does not exceed an average of ten hours per month from the date of this Decision through the end of the IEP (6/10/05). For example, Parent’s consultant may “frontload” her time, spending more than ten hours per month over the next month or so, and later reducing her time by a commensurate amount. Parent consulting services shall include direct intervention to Student provided that any such direct intervention is done in the presence of a family member (such as a parent or step-parent) or other primary-care provider (such as an au pair ), and provided further that it is done for the purpose of training that person through modeling.15
Expert regarding social and behavioral issues .
The third issue listed in the statement of Issues, above, raises the question of whether Medfield has hired an appropriate person (Ms. Gibbons) to be its school-based consultant, and whether it is permissible for Medfield to divide the responsibilities for school-based and home-based consulting between two people, as compared to having a single consultant perform both functions.
The proposed IEP calls for consultation services to the school staff, in the form of an autism spectrum disorder consultant for two hours per month, in addition to the home-based consulting services. Medfield has hired two separate consultants – one consultant to train Parents (Ms. McConville) and a second consultant to advise school staff (Ms. Gibbons). Parent urges that Ms. McConville serve in both capacities in order to ensure consistency across environments.
Parent takes the position that Medfield should not continue to retain Ms. Gibbons as the school-based consultant. Parent alleges that Ms. Gibbons has failed to secure Parent’s trust and cannot effectively meet Student’s needs, notwithstanding any expertise and experience she may have. Parent argues that Medfield should assign a single expert (to consult in both the school and home settings) in order to effectively coordinate between home and school, and that this person should be Ms. McConville who Parent believes is able and willing to serve in both contexts. I will address Parent’s second concern first.
Although there was persuasive testimony from Parent’s experts (Frankhouser and McConville) that having one (rather than two) consultant would be “best”, there is no basis within the evidentiary record for me to conclude that Medfield’s arrangement of hiring two consultants would somehow compromise the ability of Medfield to provide the consulting services described within the IEP. Facts, pars. 32, 43. As noted earlier in footnote 12 and accompanying text, Medfield is under no obligation to provide the best delivery of service system to Student. In addition, Medfield’s consultant (Gibbons) and Medfield’s Director of Pupil Services (McArdle) provided unrebutted testimony that this arrangement has been and will continue to provide Medfield staff with the expert consultation services which it needs. Facts, pars. 65, 69, 70.16
I reach a similar result regarding Parent’s request that Ms. Gibbons not be the consultant hired by Medfield to advise the Medfield staff. Parent has taken the position that Ms. Gibbons can not effectively meet Student’s needs, but Parent has provided no basis for this proposition other than a lack of trust. Apparently part of the basis for this lack of trust is a previous disagreement between Parent and Ms. Gibbons. Facts, pars. 7, 12.
Medfield is allowed discretion to choose the specific service providers (including the individual experts who will consult them) so long as these service providers are sufficiently qualified for the purpose of providing Student with the special education and related services to which he is entitled. Parent does not question Ms. Gibbons’ expertise or experience. Parent’s lack of trust in Ms. Gibbons does not, by itself, result in Ms. Gibbons being unqualified to perform her assigned responsibilities of consulting Medfield staff. I therefore have no basis to order that Medfield hire a different consultant.
Findings and conclusions : I find that Medfield need not hire a single consultant (as opposed to one consultant for school and a second consultant for home/community), and Medfield may continue to hire Ms. Gibbons as its school-based consultant. Parent is not entitled to any relief with respect to this issue.
Executive functioning skills .
The fourth issue listed in the statement of Issues, above, is whether the proposed IEP should include an additional goal and measurable objectives related to executive functioning skills.
In her Statement of Concerns , Parent explained that there has been deterioration of Student’s attitude and ability to complete homework assignments.
Parent further highlighted this concern in her testimony. She explained her son’s recent rigidity and literal interpretation, which have made it more difficult for him to complete his homework successfully. She stated that these difficulties and frustrations with his homework reflect deficits regarding his executive functioning skills. Facts, par. 3. Student’s difficulties in homework have also been noted in his report card – completion of homework was the single area in which Student received a low mark. Facts, par.79.
Dr. Frankhouser was the only expert witness to address this issue. In her testimony, she first appeared to support Parent’s position that Student has significant deficits regarding his executive functioning. However, upon further questioning, she made clear that the deficits she was describing would more properly fall within Student’s social and pragmatic difficulties.
In addition, Dr. Frankhouser’s report includes the following statement: “Overall [Student’s] executive skills should continue to be monitored, but at this time, are developing adequately.” Exhibit P-52, page 8. Later in the report she further recommended that continued development of executive skills “should be monitored”, and that if Student demonstrates increased difficulty in this area, “more direct intervention . . . may be needed.” Exhibit P-52, page 11. These statements make clear that Dr. Frankhouser does not believe that Student currently has executive functioning deficits which need to be addressed by Medfield.
With all due respect to Parent and her understandable concerns regarding her son’s ability to complete his homework successfully, Parent’s representations that her son has executive functioning deficits are not persuasive in light of her own expert’s testimony and report.
Findings and conclusions : I find that Medfield’s IEP need not include a goal and objectives related to executive functioning skills. Parent is not entitled to any relief with respect to this issue.
Occupational therapy services .
The fifth issue listed in the statement of Issues, above, is whether the proposed IEP should include two periods per week of occupational therapy services, including sensory integration. The proposed IEP does not call for any direct occupational therapy services, but does propose the following consultative occupational therapy services: “sensory” services by an occupational therapist for thirty minutes, once per week. Exhibit S-2, P-95, P-118.
Parent testified that her son continues to need occupational therapy in order to address his deficits regarding his response to sensory stimulation. She believes that occupational therapy is necessary in order to give him the ability to participate more fully in school and community activities. Facts, par. 2.
The only expert testimony regarding this issue was from Medfield’s occupational therapist (Ms. Singer) who has been providing occupational therapy services to Student during the current and previous academic years. Ms. Singer testified that the direct services to Student are to teach him how to use strategies to self-regulate his sensory input. Ms. Singer was persuasive that Student has learned these skills, that teachers rarely need to intervene to address his sensory issues, and that in her opinion there is no need for Student to continue receiving direct occupational therapy services. Facts, par. 60.
With all due respect to Parent and her belief that Student requires further direct occupational services to address sensory issues, Parent’s representations are not persuasive in light of the testimony of Medfield’s occupational therapist who not only has the requisite expertise to assess Student’s needs for these services but has also provided occupational therapy services to Student for more than an academic year.
Findings and conclusions : I find that it is appropriate that Medfield provide only consultation (as compared to direct) occupational therapy services, as described in its proposed IEP. Parent is not entitled to any relief with respect to this issue.
Summer program .
The sixth issue listed in the statement of Issues, above, is whether Medfield’s proposed summer services are appropriate and whether there should be a commitment to an “early” Team meeting date to develop a summer program and placement for 2005.
The proposed IEP (for the period June 10, 2004 through June 10, 2005) includes the following services:
Extended school year services to take place at “Summer Discovery” for six weeks, five days per week, five hours per day, in order to assist in breakthrough social skills and to ready Student for transition to grade three. Social and pragmatic skills are to be targeted.
Parent takes the position that the IEP should include a summer program in an environment with typical peers, in which the development and generalization of Student’s social skills and behavioral skills are intentional areas to be addressed with the assistance of professionals with expertise in autism spectrum disorders, and that a Team meeting should be held prior to the end of February 2005 to address the summer of 2005.
In her Statement of Concerns , Parent explained that without appropriate programming during the summer months, Student may substantially regress in his social skills and become “even more introverted and shut down”, also making it more difficult for him to re-enter a more structured program when he returns to school in the fall.
The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.17
The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.340-300.350, that the services are necessary for the provision of FAPE to the child.18
A circuit court of appeals has recently discussed the relationship between regression and the FAPE standard found within the IDEA:
it is incumbent upon those proposing an ESY [extended school year] for inclusion in the child’s IEP to demonstrate, in a particularized manner relating to the individual child, that an ESY is necessary to avoid something more than adequately recoupable regression. More specifically, it must be shown that an ESY is necessary to permit the child to benefit from his instruction. The Third Circuit has persuasively held that this benefit must be more than merely de minimis, gauged in relation to the child’s potential.19
There is no dispute that Student requires a summer program to address his social (and related behavioral) skills. The summer program proposed by Medfield within its IEP (the Discovery Program) is described within exhibit P-100.
Medfield’s Director of Pupil Services (McArdle) testified that, in her opinion, Medfield’s proposed summer program (Summer Discovery) is appropriate to avoid regression. Ms. McArdle explained that the program director is a special educator who understands and is able to address Student’s social competency needs; the staff are well-trained and organized; the program has a structure similar to school; and it is a social (rather than an academic) program with “fun” activities, which can be adjusted to fit the interests and needs of the individual children attending. She concluded that the primary area of concern for Student is to work on his emerging social skills, which the summer program addresses. Facts, par. 71.
Parent testified in favor of the Noble’s camp which provides a choices of activities for her son, as compared to Medfield’s proposed summer program which she believes offers little choice, which provides activities (such as music, drama and nature) that are of little interest to her son, and which does not offer the sports activities that her son needs. She also noted that he has few peers in Medfield’s proposed program. Facts, par. 5.
In her report, Dr. Frankhouser recommended a summer program in light of Student’s need for consistency and predictability, and his risk for regression, particularly in social functioning. She suggested that a summer program address his social, coping, behavioral, sensory and pragmatic language goals, through interaction with typically-developing peers, a structured schedule with predictable routines, and sufficient staffing to meet his needs for attention, re-direction, and social modeling and facilitation. Exhibit P-52, page 11.
In her report, Ms. McConville recommended a summer program with typical peers to allow Student to continue with a structured environment to maintain and acquire skills, as well as to prevent regression. Exhibit P-51.
Ms. McConville observed Medfield’s proposed summer program. In her written report following this observation, she had high praise for the commitment, professionalism and organization of the Summer Discovery program, but noted a concern as to whether the desk-top tasks offered by the camp would give Student an “appropriate outlet during the summer months” given that Student currently “focuses a lot of his time on gross motor activities, such as dodge ball or other outside games.” Exhibit P-91 (page 2), S-10.
As Parent’s attorney pointed out in his closing argument, the disputed IEP which is before me runs only until June 10, 2005 and therefore does not include the Student’s summer program for 2005. The parties apparently had a dispute regarding the program for the summer of 2004, but this dispute has been resolved informally between the parties as part of Parent’s compensatory claims. Parent’s attorney therefore correctly points out that I need not decide whether Medfield’s proposed Summer Discovery program is appropriate for Student.
Medfield’s attorney, however, understandably seeks guidance from this process, expressing concern that without such guidance, Parent may again dispute Medfield’s proposed program for the summer of 2005, leading to further contention between the parties. Given the history of the relationship between the parties, I believe it is best to provide whatever guidance is permissible. I also note that both parties presented evidence on the merits of Medfield’s and Parent’s proposed summer programs.
Without formally deciding whether the Summer Discovery program would be appropriate for Student for the summer of 2005, I conclude that if I were to decide this issue on the basis of the evidence before me, I would likely rule in favor of the School District. Medfield provided credible evidence that Summer Discovery would adequately address Student’s social (and related behavioral) needs so as to meet the Massachusetts and federal regulatory standards articulated above. I do not discount Parent’s testimony, as well as the testimony and reports of her experts. Parent’s evidence convinces me that Student and Parent would, for good reason, prefer the Noble’s camp and the Noble’s camp may indeed by more appropriate for Student. However, Medfield has presented credible evidence that Summer Discovery would likely be appropriate, and Parent’s arguments and the evidence in support of her position do not persuade me to the contrary.
I also note that that the principal reason put forth by Ms. McConville for recommending that Student not attend Summer Discovery appeared to be that it did not offer the gross motor activities that Student preferred, and instead offered desk-top activities. However, there is no evidentiary basis upon which I might conclude that Student’s social competency deficits cannot be addressed appropriately through the desk-top activities offered at Summer Discovery. As noted earlier in this Decision, Medfield need only provide what is legally required to meet Student’s special education needs, as compared to what Student and Parent would, for good reasons, prefer.
A related issue is whether I should order that Medfield convene an “early” Team meeting so that there would be sufficient time and opportunity to resolve any dispute regarding the program for the summer of 2005. No credible evidence was submitted as to what this date should be. I am also reluctant, in general, to make an order at this level of detail unless it is necessary to ensure that Student receives FAPE.
During closing argument, Parent’s attorney asked that the Team be ordered to meet before the end of February 2005 to discuss a summer program for Student. Medfield’s attorney suggested instead that Medfield would be willing to meet in March 2005 for this purpose. I have no basis to conclude that a March meeting would not be sufficient and for the reasons explained above, decline to issue an order regarding this related issue.
Findings and conclusions : I make no findings or conclusions regarding this issue.
Protocol regarding sharing of information .
The seventh issue listed in the statement of Issues, above, is whether the proposed IEP should include a protocol for Parent and all service providers to regularly and frequently share information about Student’s daily experience, including specific programmatic skills. Parent seeks a daily checklist (to be included within this protocol) that would be completed by Student’s aide, listing items in the areas of social, behavioral and body-regulation skills.
Ms. McConville testified that she recommended that there be regular written communication between school and home, similar to what is currently being done (see exhibit P-127), but that she prefers that the communication indicate whether Student had an appropriate social interaction, for example, rather than numerically rating the social interaction. Facts, par. 29.
In her report, Ms. McConville suggested a simple checklist identifying positive and negative behaviors, as well as any target teaching skills during the school day, in order to improve Parents’ knowledge of Student’s program and allow them to follow through when Student is not in school. Exhibit P-51.
Dr. Aspel also recommended “some sort of daily home/school communication system” as he has found it helpful in his work with Student to monitor Student’s school functioning and to be kept current regarding issues that need to be addressed in therapy. Exhibit P-89 (letter from Dr. Aspel).
Ms. Lavelle testified that the current protocol for communicating with Parents need not be done on a daily basis because Student is doing so well that there is little to report; she suggested instead a weekly reporting tool which describes more qualitatively Student’s pragmatic and social behavior, without reporting every skill that is being addressed at school. Facts, par. 55.
Ms. Donalds testified that, in her opinion, once per week is more than sufficient for written communication from school to home, and that this communication can address any unusual or important incidents or concerns. Facts, par. 58.
Findings and conclusions : On the basis of this evidence, I find that it is sufficient that Medfield report weekly, describing in a qualitative manner Student’s social and pragmatic behavior. I decline to order the daily protocol requested by Parent.
IEP’s descriptions of Student’s current skills and deficits .
The eighth issue listed in the statement of Issues, above, is whether the proposed IEP provides accurate descriptions of Student’s current skills and deficits. Parent takes the position that the proposed IEP omits discussion of areas in which Student needs work, as well as accommodations he needs to address his deficits.
Although Parent did not testify regarding this issue, a review of her July 14, 2004 letter to Ms. McArdle reveals several concerns regarding the completeness of the IEP as it describes how Student’s disabilities affect his progress in curriculum (and other) areas, and as it describes what type of accommodations are necessary for Student to make effective progress. In her letter, Parent does not take the position that what is currently stated within the IEP is inaccurate, but rather that it is incomplete in that it is missing important information. In her letter, Parent suggests specific, additional language that she believes should be added to the IEP. Exhibit S-3, P-92.
I am not aware of any evidence (other than Parent’s letter of July 14, 2004) which directly addressed the completeness of the particular sections of the IEP which describe Student’s current skills and deficits; or to the extent there are omissions, any evidence that addressed whether the omissions are so significant as to implicate the special education and related services which are provided to Student. I note, for example, Ms. McConville submitted a three-page written review, recommending that a number of specific changes be made regarding the IEP. However, she does not indicate that the IEP’s descriptions of Student’s current skills and deficits should be changed. Exhibit P-88.
As Parent’s attorney recognized in his letter of August 5, 2004 to Medfield’s attorney (exhibit S-1), the “ultimate issue” before me is whether or not the program and placement reflected within the proposed IEP are reasonably calculated to provide Student with FAPE. I have no basis upon which I would be able to conclude that whatever omissions or incompleteness there may be within the contested sections of the IEP (describing Student’s skills and deficits) rise to the level of impacting upon Student’s opportunity to receive FAPE.
Findings and conclusions : For these reasons, I decline to order any relief for Parent regarding this issue.
Goals and objectives .
The ninth (and last) issue listed in the statement of Issues, above, is whether the proposed IEP states goals and objectives which are measurable. Parent also seeks more explicit objectives within the IEP in order to address Student’s social deficits, as well as additional, measurable objectives for Parent consulting services.
Medfield’s Director of Pupil Services (Ms. McArdle) testified as to the appropriateness of the goals and objectives, that they were measurable, and that the service providers had also found them to be measurable. Facts, par. 72.
In her review of the IEP, Ms. McConville concluded that “Some goals/benchmarks are not clear”; she asked a number of questions (for example “who is responsible to review and document issues/skills on [Student’s] checklist?”; she noted that IEP goal # 1 could be more specific for Student’s current needs; and she provided proposed language for the IEP. Exhibit S-9, P-88. See also exhibit P-85, providing suggested text for Student’s goals and objectives.
Parent has also provided a comprehensive and detailed written critique of the IEP, pointing out what she believes to be problematic language as well as explaining how these deficits could be corrected. Exhibits P-92, S-3.
The federal special education regulations require measurable goals relative to a student’s educational needs that result from his/her disability.20 In order to determine whether this standard has been met, I generally rely upon expert testimony. Although Ms. McConville is persuasive in her reports that the IEP goals could be improved, she has not provided me with a sufficiently specific critique for me to understand why specific goals are not measurable, or how the language used within the IEP goals and objectives implicates Student’s opportunity to receive FAPE. In order to persuade me to order changes in the IEP, it is not sufficient to demonstrate that the IEP and the goals within it could be improved.21
For similar reasons, I decline Parent’s request to order more explicit objectives within the IEP in order to address Student’s social deficits, or to order additional, measurable objectives for Parent consulting services. There was no expert testimony upon which I might base such an order.
I also decline Parent’s suggestion that an expert be appointed to recommend improved goals and objectives. This process would likely lead to further disputes between the parties, and potentially undermine the finality of this Decision.
For these reasons, I do not believe that Parent has effectively rebutted Ms. McArdle’s testimony that the IEP goals and objectives are appropriate.
Findings and conclusions : I find that that the goals and objectives of the IEP are appropriate. I decline to order any relief regarding this issue.
Relationship between the parties .
Finally, I address a concern that is not included within the enumerated Issues in this dispute.
Both Parent and Medfield’s Director of Pupil Services (McArdle) have made plain their frustration with the relationship that has developed between Parent and Medfield’s administrative and consulting staff. Parent has testified to this issue and candidly stated her views in a written document. Facts, pars. 7, 16. Similarly, Ms. McArdle made clear in her testimony her frustration and that of her staff in working with Parent and attempting to reach a resolution of the large number of concerns expressed by Parent over the years – ultimately, this frustration led to Medfield’s filing the Hearing Request in this dispute in order to bring closure to this matter. Facts, par. 68.
I suggest that both parties have an interest in considering ways to establish a more constructive relationship which, at the same time, satisfies their respective needs. Continuation of what has occurred in the past is likely to be frustrating to Parent and/or burdensome to Medfield staff, without necessarily producing tangible benefits for Student. Worse still, the negative relationship between the parties may possibly, at some point in the future if it continues on its present course, negatively impact upon Student’s education.
This is not a matter which I can appropriately address through findings and conclusions, much less through a formal order. Nevertheless, I would be remiss if I were simply to ignore this obvious difficulty and the possible implications of it upon Student’s education.
For this purpose, I make several observations.
First, the parties would benefit from a clear and relatively final resolution of their current, multiple disputes regarding Student’s services and IEP. By deciding the extent of Medfield’s legal obligations regarding Student’s special education and related services, this Decision hopefully will allow the parties to let go of some of the many disputed issues which have come between them.
Second, the parties may benefit from having an objective person whom Parent and Medfield staff can both rely upon not only to observe what is happening to Student in all settings but also to communicate effectively and constructively between the parties. Ms. McConville touched on this in her testimony. See Facts, par. 31.
In order for this suggestion to succeed, Medfield and Parent would need to see this person as someone with whom they can constructively discuss and address Parent’s and Medfield’s concerns. Parent would also need to see this person as a vehicle for better understanding what is occurring within the school setting and effectively communicating her concerns to Medfield staff, thereby allowing her to reduce (but not to eliminate) her own observations of Student and her own communications and advocacy with Medfield staff and consultants.
Ms. McConville appears to be the only person who may possibly fill this role as observer/communicator/facilitator. The additional two hours each month of Ms. McConville’s time that are being ordered through this Decision (to observe Student within the school environment and to meet with Medfield staff) may allow Ms. McConville to begin to fill this role.
Third, in light of this Decision and Ms. McConville’s possible role as described immediately above, the two attorneys should now consider assisting their clients in trying to reach agreement regarding (1) the role of Ms. McConville as observer/communicator/facilitator, and (2) the types and amount of communication (at least in general terms) that will occur directly between Parent and Medfield staff. It is apparent that sufficient communication should occur between the parties so that Parent (with the assistance of Ms. McConville) can continue to remain informed regarding her son’s education in all settings, but that Parent’s communications (and her expected responses from Medfield staff) should not be so voluminous as to become unduly burdensome on Medfield.
Finally, I note that Parent made clear during the Hearing that she would like the anniversary date of her son’s IEP to be in the fall, believing that this would facilitate timely review of her son’s educational program. I express no opinion on the merits of Parent’s request, but suggest that Medfield consider it if Medfield has not already done so.
ORDER
The IEP proposed by Medfield for the period 6/10/04 to 6/10/05 is reasonably calculated to provide Student with a free appropriate public education within the least restrictive environment, provided that the IEP is modified to reflect the following additional services. Parent consult services shall be provided for an average of ten hours per month. The precise number of hours delivered each month shall be determined by the Parent consultant, provided that she does not exceed an average of ten hours per month from the date of this Decision through the end of the IEP (6/10/05). For example, Parent’s consultant may “frontload” her time, spending more than ten hours per month over the next month or so, and later reducing her time by a commensurate amount. Parent consulting services shall include direct intervention to Student provided that any such direct intervention is done in the presence of a family member (such as a parent or step-parent) or other primary-care provider (such as an au pair ), and provided further that it is done for the purpose of training that person through modeling.
By the Hearing Officer,
William Crane
Dated: October 12, 2004
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Dr. Aspel participated by telephone.
2
Mr. Crabtree filed his appearance only on behalf of the mother. However, both Student’s mother and his stepfather are involved in Student’s education. In this Decision, the word “Parent” will be used to refer to Student’s mother, and the word “Parents” will be used to refer to both Student’s mother and his stepfather.
3
Parent’s attorney raised a 10 th issue – that is whether Medfield was appropriately planning for Student’s transition into a different school for the 2005-2006 school year. This was raised as a contested issue for the first time during closing argument on September 30, 2004 and for this reason, I decline to address it.
4
Ms. Gibbons is listed as the author of the consult summary. Ms. McCarthy is listed as the author of individual observation reports. Ms. McCarthy and Ms. Gibbons are the same person. She explained in her testimony that she recently changed her last name from McCarthy to Gibbons.
5
20 USC 1400 et seq .
6
MGL c. 71B.
7
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
8
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulatory provisions not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).
9
In written reports, Dr. Bauman and Ms. Hodgins also recommended an aide within the classroom, although Dr. Bauman’s recommendation was for the purpose of academic instruction and Ms. Hodgins’ recommendation is somewhat dated (6/6/03). Facts, pars. 75, 77.
10
I rely, to a large extent, upon Ms. Lavelle’s testimony and the written report of Ms. Mitchell who was Student’s 2 nd grade teacher. I found Ms. Lavelle to be a well informed and highly credible witness. Ms. Mitchell was unexpectedly unable to testify (either in person or by telephone). Her report and observations were presented through the testimony of Ms. Lavelle.
11
Similarly, I note that Dr. Frankhouser’s addendum to her written report explains that Medfield staff reports indicate that Student is not demonstrating behavior difficulties in school, and that he is observed to present with age-appropriate social and adaptive skills, but that these skills are not observed in less structured settings. Exhibits P-101, S-13.
12
See, e.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) (“FAPE may not be the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”). See also footnote 8, above, and accompanying text.
13
In addition to questioning the appropriateness of Medfield’s proposed services, Parent seeks more explicit objectives within the IEP in order to address Student’s social deficits. This matter will be discussed below as part of the ninth (and last) issue addressed in this Decision.
14
There was testimony from Dr. Frankhouser, Ms. Gibbons and Ms. McConville supporting the possibility of Ms. McConville spending time with Student’s afterschool program (the Medfield Afterschool Program (MAP)) since MAP is an additional and presumably important environment within which Student exhibits social competency strengths and weaknesses, and another environment in which these issues should be addressed consistently. See Facts, pars. 43, 48, 66. However, I note that it was not clear from the testimony whether MAP would agree with the need for this and, if it did, how much time would be appropriately spent by Ms. McConville. Therefore, although it would seem important, in the abstract, that Ms. McConville have the opportunity to spend time at MAP, I am not able to conclude whether this should actually occur and, if it did occur, how much time would be required. See also Facts, par. 85 for a description of Student’s social strengths and weaknesses within the afterschool program.
15
A related issue is the question of whether there should be additional, measurable objectives for Parent consulting services. I will discuss this concern within the ninth (and last) issue addressed by this Decision.
16
I also note that in the section of this Decision immediately above, I have added two hours per month to Ms. McConville’s consulting time in order to address Parent’s legitimate concerns regarding consistency between school and home/community environments.
17
603 CMR 28.05(4)(d)1.
18
34 CFR 300.309.
19
Kenton County School District, v. Hunt, 104 LRP 40801, 02-6027 (6th Cir. 2004)
(citations omitted) (emphasis omitted).
20
34 CFR 300.347(a):
General . The IEP for each child with a disability must include—
. . . .
(2) A statement of measurable annual goals, including benchmarks or short-term objectives, related to –
(i) Meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled children), or for preschool children, as appropriate, to participate in appropriate activities; and
(ii) Meeting each of the child’s other educational needs that result from the child’s disability; . . . .
See also Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (IEP must include measurable criteria to assess student’s progress).
21
See, e.g., Peter G. v. Chicago Public School District NO. 299 , 38 IDELR 94 (N.D. Ill. 2003) (fact that the parents’ expert believed the IEP could have contained more and better goals did not mean the goals did not offer the student FAPE).