COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Norfolk Public Schools
BSEA # 07-1421
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on October 23, 2005 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Grandmother
Stephanie Sweeton Speech-Language Therapist, Learning Center for Deaf Children
Carla Squier Behavior Specialist, Norfolk Public Schools
Carol Riccardi-Gahan Director of Student Support Services, Norfolk Public Schools
Mary Ellen Sowyrda Attorney for Norfolk Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 and P-2; documents submitted by the Norfolk Public Schools (Norfolk) and marked as exhibits S-1 through S-18; and approximately three hours of recorded oral testimony and argument. Oral closing arguments were made at the close of the Hearing on October 23, 2004, and the record closed on that date.
ISSUE
The issue to be decided in this case is whether Norfolk may utilize Carla Squier as a behavior specialist, in lieu of Dr. Martin Sawzin, who currently is providing these services to Student.
PROFILE
Student is a ten-year-old third grader who lives at home with her Mother in Norfolk. She is an imaginative, energetic girl with an excellent sense of humor. Exhibit S-1 (IEP).
Student is diagnosed with apraxia of speech, pervasive developmental disability, fine motor deficits, and cognitive delay. Student does not have a known hearing deficit. Testimony of Sweeton; exhibits S-1, P-2.
Student receives educational services during the school day at the Learning Center for Deaf Children’s Language Access Program (Learning Center) pursuant to an IEP proposed by Norfolk. Norfolk also provides home-based services. Exhibits S-1, S-2 (IEPs).
DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”3 Neither Student’s eligibility status nor her entitlement to FAPE is in dispute.
FAPE is provided through an individualized education program (IEP). Parent has accepted Student’s most recent IEP, with several exceptions, only one of which is relevant to the present dispute. That one exception is the identity of Student’s behavior specialist.
The previous IEP had specifically identified Dr. Martin Sawzin as Student’s behavior specialist. Through its current IEP, Norfolk sought to identify the position, rather than the particular person, with the intent of then substituting Carla Squier as Student’s behavior specialist. Parent rejected this change, invoking her stay put rights, and Norfolk has continued to engage Dr. Sawzin as Student’s behavior specialist.
On August 29, 2006, Norfolk filed a Hearing Request with the BSEA for the sole purpose of obtaining an order allowing it to substitute behavior specialists. A pre-hearing conference and mediation failed to resolve this matter, and it proceeded to hearing on October 23, 2006. Norfolk has the burden of persuading me that it may substitute behavior specialists.4
The issue was further narrowed by Parent’s oral stipulation during the hearing that Ms. Squier’s qualifications as a behaviorist are not in dispute. Parent’s concern is focused exclusively on whether Ms. Squier is able to communicate satisfactorily with Student in order to fulfill her responsibilities as a behavior specialist. This, then, is the dispute that must be resolved.
Norfolk has the discretion to engage whichever behavior specialist it might choose, so long as the identified specialist has the requisite qualifications to provide the services set forth within Student’s most recently accepted IEP.5 I now consider whether Ms. Squier meets this standard.
Stephanie Sweeton, Student’s speech-language pathologist since the spring of 2003 at the Learning Center testified with respect to Student’s communication deficits. With respect to expressive language, Student’s apraxia interferes with her ability to speak. She has limited vocalizations and a small set of words that can be spoken. As a result, Student communicates principally through American Sign Language (ASL). Some or all of Student’s signing is atypical. Testimony of Sweeton; exhibit S-1.
With respect to receptive language, Student understands spoken English, but in order to understand relatively large or abstract concepts, she benefits from spoken English combined with ASL. Testimony of Sweeton; exhibit S-1.
Pursuant to the current IEP and as explained by Ms. Squier, the role of the behavior specialist is to provide a home-based program for the purpose of providing Student with direct instruction to improve her ability to express her wants and needs in the community, with the additional (and equally important) purpose of training Parent to provide this instruction herself. All communication between Student and the behavior specialist occurs in Parent’s presence. Testimony of Squier; exhibit S-1.
In order for a behavior specialist to communicate effectively with Student for the purpose of implementing the home-based program pursuant to the IEP, the behavior specialist must have what Ms. Sweeton referred to as a “solid foundation” of ASL. For these purposes, a “solid foundation” of ASL refers to an ability to express and understand Student’s immediate wants and needs, including an understanding and ability to use the vocabulary relevant to interactions between the behavior specialist and Student. “Solid foundation” does not include 100% fluency in ASL. As a rough guide, Ms. Sweeton opined that it may take one year of ASL course work, combined with one year of regular use of ASL, to reach this requisite level of competence. Testimony of Sweeton.
Approximately ten or eleven years ago, as part of her college course work, Ms. Squier took ASL courses for an academic year. Upon graduating from college in May 1997, she worked for the New England Center for Children for five years until August 2002. During this time, she regularly communicated through ASL with children with whom she was working. For the past four years, Ms. Squier has been employed in the public schools where she has used ASL on a limited basis – for example, one- or two-word utterances. Testimony of Squier; exhibit S-3 (resume).
Beginning the week of October 16, 2006, Ms. Squier began observing Student in her classroom, as well as interacting with Student socially, for a period of two hours per week. In addition, during the week of October 16, 2006, Ms. Squier began attending an ASL course (at the level of ASL II, level one) that meets once each week for two hours and that will continue until November 21, 2006. Norfolk proposes that, in addition to these opportunities to learn ASL and develop a relationship with Student, Ms. Squier observe Dr. Sawzin’s delivery of home-based services for three weeks prior to Ms. Squier’s providing these services herself without assistance. Testimony of Squier; exhibit S-18.
Norfolk takes the position that the weekly observation/socialization with Student in her classroom, the completion of the ASL course, and three weeks of observation of Dr. Sawzin, in combination with Ms. Squier’s previous instruction and work in this area, will result in sufficient ASL competence to deliver the home-based services. Norfolk points out correctly that it is not necessary that Ms. Squier learn ASL for the first time, but rather that she refresh her previous learning and use of ASL, and that she learn the atypical signs used by Student.
Parent takes the position that Ms. Squier is a qualified behaviorist who should eventually become Student’s behavior specialist, but not until Ms. Squier has had one year of additional ASL instruction and practice.
In resolving this dispute, I rely on the testimony of Ms. Sweeton. Although not an expert in the teaching or development of ASL, Ms. Sweeton has a thorough knowledge of Student’s communication needs, has extensive experience communicating with Student, and has significant knowledge regarding ASL. Ms. Sweeton also presented as an intelligent, articulate, and candid witness.
Ms. Sweeton was Norfolk’s first witness, and through her testimony, she explained Student’s communication needs and what would be necessary to work effectively with her. Ms. Squier then testified, explaining her role and responsibilities as Student’s behavior specialist, describing her previous instruction and use of ASL, and further explaining the steps that are currently being taken (and would be taken) as described above to refresh her ASL and to understand Student’s specific ASL communications. After Ms. Sweeton heard Ms. Squier’s testimony, she was re-called for the purpose of testifying on the process for Ms. Squier’s becoming Student’s behavior specialist.
In her testimony, Ms. Sweeton agreed with the appropriateness of Ms. Squier’s and Norfolk’s planned transition, as described above, to become Student’s behavior specialist, provided that at the end of the transition period and before becoming Student’s behavior specialist, Ms. Squier demonstrate her ability to communicate successfully with Student, without support from others, for the purpose of implementing the home-based program.
It is appropriate for Ms. Squier to decide herself, with Parent’s input, when she has sufficient ASL skills and knowledge to provide Student with services under the IEP. However, the parties agreed at the end of the evidentiary portion of the hearing that it would also be appropriate for another person to review Ms. Squier’s decision that she has the requisite ASL skills to provide the home-based services. For this purpose, the parties further agreed that this other person would, in order of preference, be Student’s current classroom teacher at the Learning Center (Ms. Howard), Student’s current speech-language pathologist at the Learning Center (Ms. Sweeton), or another service provider at the Learning Center who has worked with Student for a sufficient period of time to understand what is needed in order to communicate effectively with Student. I find that this additional process should be followed by Norfolk.
I conclude that Ms. Squier is an appropriate behavior specialist for Student, provided that prior to commencing services, Norfolk’s proposed transition process be completed, with the addition of the review process described immediately above.
ORDER
Carla Squier may begin providing services as a behavior specialist pursuant to Norfolk’s current IEP (including any relevant parts of the previous IEP) after the following have occurred or been completed:
1. Ms. Squier has observed Dr. Sawzin’s services to Student for a period of three weeks.
2. Ms. Squier has completed the ASL class in which she is currently enrolled.
3. Ms. Squier has continued the process of observing and socializing with Student in her classroom until Ms. Squier begins providing behavior specialist services to Student.
4. Ms. Squier has determined (after providing Parent an opportunity for input into this determination) that she has sufficient ability to understand and communicate with Student through ASL for the purposes of providing the behavior specialist services under the IEP.
5. Student’s current teacher (Ms. Howard) or another service provider at the Learning Center (see the order of preference described above within this Decision) has reviewed Ms. Squier’s ability to understand and communicate with Student for the purpose of providing behavior specialist services under the IEP, and has affirmed Ms. Squier’s determination that she has sufficient ability to do so.
By the Hearing Officer,
William Crane
Dated: October 27, 2004
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING 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).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
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
20 USC 1400 et seq .
2
MGL c. 71B.
3
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
4
Schaffer v. Weast , 126 S. Ct. 528 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
5
See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE, any decisions regarding methodology are left to its discretion).