COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Norwood Public Schools BSEA # 08-6241
DECISION
This decision is issued by the Bureau of Special Education Appeals (BSEA) 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 June 11 and 13, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Barbara Fragopoulos Former Boston Teacher for Visually Impaired Students
Erin Joyce Social Worker, South Norfolk Association for Retarded Citizens
Mitch Sanborn Director of Deaf-Blind Multi-Handicap Program at the
Massachusetts Commission for the Blind
Deborah Salaun Life Skills Teacher, Norwood Public Schools
Julie Moore Teacher of the Visually Impaired, Norwood Public Schools
Lisa Tartufo School Adjustment Counselor, Norwood Public Schools
Melinda Clougherty Speech-Language Pathologist, Norwood Public Schools
Michelle Plasse-Collins Team Chairperson, Norwood Public Schools
Mary Lou Motyka Special Education Coordinator, Norwood Public Schools
Helen Wyche Director of Student Support Services, Norwood Public Schools
Deborah Watts Orientation and Mobility Teacher, Carroll Center for the Blind
Chad Ryan Educational Consultant, May Institute
Robert Putnam Vice President of Consultation, May Institute
Tim Norris Attorney for Norwood Public Schools
Stephanie Singer BSEA Intern
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-8; documents submitted by the Norwood Public Schools (Norwood) and marked as exhibits S-1 through S-21; and approximately two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 24, 2008, and the record closed on that date.
I. INTRODUCTION
Parents seek a residential placement so that their son, who is blind and has a disability on the autism spectrum, will be able to learn daily living, social, and vocational skills that will better allow him to live and work independently in the community. Parents, through their witnesses and reports, point to the advantages of a comprehensive, twenty-four-hour program to help Student learn (and generalize the use of) these skills.
Norwood takes the position that its proposed educational program for the 2008-2009 school year, which includes after-school, summer, and home-based services, will allow Student to continue to make effective and meaningful progress, particularly with respect to vocational skills and functional academic skills.
For the reasons explained below, I find that Norwood’s proposed educational program during the school year, with modifications specified below, is appropriate for Student, that its proposed summer services are not appropriate, and that Student does not require residential services in order to make meaningful and effective educational progress.
II. ISSUES
The issues to be decided in this case are the following:
1. Is the individualized education program most recently proposed by Norwood reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made in order to satisfy this standard?
3. If not, is a residential placement necessary to satisfy this standard?
III. FACTS
A. Student Profile
Student is an eighteen-year-old young man who lives with his Parents in Norwood, Massachusetts. During this past school year (2007-2008), he was in the 12 th grade, attending a substantially separate program within the Norwood High School. Testimony of Parent; exhibit S-10 (IEP).
Student has many strengths. He has good capacity for acquiring explicit, literal content knowledge, has good capacity to engage in literal, logical reasoning, and has good rote memory skills. Student is an enthusiastic learner and loves to read. He has strong interests (including history and war), gets along well with (and is well-liked by) others at school (including typical peers), and has relatively good social-relatedness skills. Testimony of Parent, Fragopoulos, Putnam, Salaun; exhibits S-4 and P-4 (Prather’s report at page 8), S-10.
Student has been blind since infancy. He has also been diagnosed as having an autism spectrum disorder, as reflected in his impaired social judgment and reasoning, as well as more general and profound deficits in inferential reasoning and appreciation of global context/organization. He has difficulty using information. Student also has substantial skill deficits regarding adaptive behavior (for example, he repeats questions and perseverates). He also has significant weaknesses regarding daily living skills. All behavior difficulties within school as well as school attendance issues disappeared after a few months during the previous school year (2006-2007), but more recently Student demonstrated difficult and potentially dangerous behaviors at home. Testimony of Parent, Fragopoulos, Putnam, Salaun, Sanborn, Joyce, Tartufo; exhibits S-4 and P-4 (page 8), S-6 (speech-language evaluation), S-10 (page 2).
B. Services Provided during the 2007-2008 School Year (including the Summer of 2007)
Since September 2006 through June 2008, Student has been placed at the Practical Academic and Curriculum Skills (PACS) program at Norwood High School. PACS’ purpose is to integrate curriculum frameworks in a manner that is both understandable and functional for students who have varying needs, to provide these students with knowledge of their community, and to provide the students with tools and skills to promote their independence. Towards this end, Norwood has provided Student with instruction and training to develop his (1) daily living and self-help skills, (2) functional academic skills, (3) vocational skills, (4) community experience, (5) peer relationships, and (6) social/pragmatic skills. A principal focus of the PACS program is preparation for transition to vocational and adult services. Student has also been provided with resource room supports for academics (math and science). Testimony of Salaun; exhibits P-2, S-10 (IEP, page 1), S-12 (IEP, page 2).
More specifically, the most recent, partially-accepted IEP (Parent accepted the services on an interim basis but not the placement) calls for Student to receive the special education and related services, described below. Except with respect to summer services, these services were to be provided through June 19, 2008. The IEP itself is for the period 10/19/07 to 10/17/08. Exhibit S-10.
Consultation Services:
· Consultation services by May Center staff to special education staff for one hour per month.
Direct Special Education and Related Services During the School Day:
· Reading/language arts by special education staff five times per seven-day cycle.
· Teacher of the visually impaired services by a vision specialist 15.5 times per seven-day cycle.
· Speech-language services by a speech therapist for 45 minutes, twice per seven-day cycle.
· Mathematics by special education staff 5 times per seven-day cycle.
· Family support services by ABA staff for one hour, three times per seven-day cycle.
· Counseling by the school adjustment counselor once per seven-day cycle.
· Assistive technology services by special education staff 5 times per seven-day cycle.
· Orientation/mobility services from an orientation and mobility specialist for one hour, twice per seven-day cycle.
· Adaptive physical education by an adaptive physical education teacher 2 times per seven-day cycle.
After School Services:
· The IEP states that Student requires a longer school day (i.e., after-school programming) to enhance his social/pragmatics/leisure skills. The IEP service delivery grid calls for leisure skills services by Charles River staff twice per week after school.
Summer Services:
· The summer services for 2007 are set forth in an earlier IEP for the period 4/23/07 to 4/22/08. Exhibits P-2, S-12. This IEP states that Student requires longer year services (i.e., summer services) to prevent skill regression. The IEP service delivery grid calls for summer services by special education staff without providing the length of the summer services or a beginning or ending date.
C. Services Proposed for the 2008-2009 School Year and for the Summers of 2008 and 2009
The focus of the instant dispute is Norwood’s proposed services for this summer (2008) and for the next (2008-2009) school year. Norwood has not yet proposed an IEP for the 2008-2009 school year but instead provided Parents and the Hearing Officer with a draft document that provides a summary of the proposed program, draft IEP pages describing Student’s proposed levels of educational performance, and draft IEP pages describing a service delivery grid with proposed consultation and special education and related services. At the evidentiary hearing, it was agreed that this draft document reflects Norwood’s proposed program and services for the 2008-2009 school year, and that it would be considered by the Hearing Officer and the parties for that purpose. Exhibit S-21.1
As reflected in this draft document, Norwood is proposing that Student attend its Live, Engage, Achieve, and Develop (LEAD) program located at the Savage Education Center in the town of Norwood. LEAD is a post-secondary program for eighteen- to twenty-two-year-old special education students. LEAD offers individual and small group instruction in a four-year program designed to develop readiness for vocational or post-secondary experiences, and also offers internships in the community and individualized extended day programming that is developed and scheduled to complement the school day for each student. This program has a vocational emphasis, and practical or functional academics (including math and reading) are taught. The program works on community and work-related skills, such as getting a library card and opening a bank account. Some students in the program do volunteer work at a local hospital. Testimony of Wyche; exhibit S-21.
Specialized services that may be offered to any student in the program include the following: teacher of the visually-impaired services, orientation and mobility services, assistive/adaptive technology, behavioral consultation, counseling and case management services, speech-language services, individual job coaching, individualized vocational assessment, explicit social and leisure/recreational instruction, and independent daily living skills instruction. Exhibit S-21.
The special education and related services proposed specifically for Student for the 2008-2009 school year are similar to what had been proposed pursuant to the most recent, partially-accepted IEP and provided during the 2007-2008 school year. Several of the service providers would be identical (the teacher of the visually-impaired, the orientation and mobility specialist, and the May consultation services) and the overall approach and accommodations followed during the 2007-2008 school year would be continued.
More specifically, Norwood has proposed the following special education and related services, as described below. These services would be provided from 9/04/08 to 9/04/09 (except with respect to summer services). Exhibit S-21.
Consultation Services:
· Consultation services by May Center staff to special education staff for one hour per month.
Direct Special Education and Related Services During the School Day:
· Reading/language arts by special education staff five times per five-day cycle.
· Teacher of the visually impaired services by a vision specialist for three hours per five-day cycle.
· Speech-language services by a speech therapist for 45 minutes, twice per five days.
· Mathematics by special education staff 5 times per five-day cycle.
· Family support services by May Center staff for one hour, three times per week.
· Counseling by the school adjustment counselor once per five-day cycle.
· Assistive technology services by special education staff 5 times per five-day cycle.
· Orientation/mobility services from an orientation and mobility specialist for one hour, four times per week.
· Adaptive physical education by an adaptive physical education teacher 2 times per five-day cycle.
After School Services:
· The service delivery grid calls for leisure skills services five times per week after school.
Summer Services:
· The summer services for 2008 are set forth in the most recent, partially-signed IEP for the period 4/23/07 to 4/22/08. This IEP states that Student requires longer year services (i.e., summer services) to prevent skill regression. The IEP service delivery grid calls for summer services by special education staff for 6 weeks for the summer of 2008, but without providing a beginning or ending date. Exhibit S-10.
· The draft service delivery grid for the period 9/04/08 to 9/04/09 includes summer services for 2009, but the grid does not provide for the length of the services or a beginning or end date. Exhibit S-21.
D. Most Recent Evaluations
Occupational therapy evaluation : This evaluation was conducted by Norwood staff in May and June 2007 for the purpose of addressing a recommendation, contained in a neuropsychological evaluation (discussed below), relative to Student’s need for occupational therapy. Norwood’s occupational therapy evaluation concluded that formal occupational therapy was not warranted and that Student should continue to use his then current informal sensory diet stretch breaks and additional sensory diet experiences listed in the report in order to address his needs in this area. Exhibit S-1.
Neuropsychological evaluation : This independent evaluation was conducted, at Parents’ request, by Penny Prather, Ph.D., in February and March 2007 when Student was 17 years old. After noting Student’s deficits in social comprehension, judgment, and communication, as well as in specific aspects of executive control processes, Dr. Prather concluded that “consistency, structure, logic, and predictability are expected to be essential to meeting [Student’s] academic as well as social and emotional needs.” She further explained that Student needs “very literal, predictable, logical, explicit, unambiguous instructional language and curriculum materials … [and] very explicit and specialized instruction to guide comprehension, integration and organization of new learning as well as appropriate application and generalization of new knowledge and skills.” Exhibit S-4, P-4 (pages 9-10).
Dr. Prather, in her report, then made the following recommendations:
Educational programming needs to include full day, twelve month programming (with “full day” intended to include after-school and daily living components provided in a residential setting as well as continuous summer programming). … A comprehensive program with the above components is felt to be essential to meeting [Student’s] basic educational needs and in order to minimize the well documented regression and loss of learning for students with Pervasive Developmental Disorders when there is a break/disruption in daily routines and instruction. …
Being in a residential setting is considered essential in order to assure that [Student] will have the time and comprehensive support needed to begin to develop rudimentary self-help skills and to provide appropriate instruction and opportunities for developing his social and community living skills as well as academic progress.
A comprehensive and full day setting is also felt to be essential in order to address his atypical and concerning behavioral and social impairments. …
In addition, though, there should be a home-based program in place on weekends to reinforce and generalize skills introduced in [Student’s] academic setting. Home based support is well recognized as essential to ensure the intensity, consistency and continuity of behavioral programming; and to facilitate generalization of coping strategies with skills for individuals with PDD/ASD. This programming should be designed to assure that [Student] has opportunities to practice and generalize skills across multiple settings and afford parents teaching and training to support skills as they develop.
Exhibit S-4, P-4 (pages 10-11).
Functional behavioral assessment : This assessment was conducted by Robert Putnam, Ph.D., and Chad Ryan, M.Ed.,2 both of the May Center, in November 2006. Its stated purpose was to determine the context and functions of the following problematic behaviors: topic perseveration (i.e., discussion the same topic after two or more attempts to redirect Student) and hand tapping (i.e., touching the back side of another person’s hand repeatedly for more than five seconds). The assessment concluded that Student is most likely to engage in topic perseveration when a demand is placed on him and most likely to engage in hand tapping when he is receiving low attention from staff and peers and when in contact with certain individuals. Testimony of Putnam, Ryan; exhibits S-5, P-5.
The functional behavioral assessment recommended the development of a behavior support plan that would incorporate the findings of the assessment. A behavior support plan, dated March 20, 2007, was developed for this purpose. Testimony of Putnam, Ryan; exhibit S-3.
IV. DISCUSSION
A. Introduction
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)3 and the Massachusetts special education statute.4 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 further education, employment, and independent living.”5 The Massachusetts special education statute also includes a FAPE requirement.6 FAPE must be provided in the least restrictive environment.7
The Supreme Court has explained that under the federal statute, FAPE is intended to require special education services that allow a student to access public education .8 Access must be meaningful,9 and sufficient to confer educational benefit,10 but need not maximize a student’s educational potential.11
Massachusetts and federal educational standards require that the IEP be designed to enable the student to make effective progress.12 Norwood’s IEPs also make reference to the expectation that educational services and accommodations will result in effective progress.13 Massachusetts standards also provide that the special education services be designed to develop the student’s educational potential.14
Parents have the burden of persuasion that Norwood’s proposed education program for the summer of 2008 and the 2008-2009 school year is not appropriate and that residential services must be provided in order that Student receive FAPE.15
B. Student’s Educational Program During the School Day
Norwood’s educational program for the 2007-2008 school year sought to allow Student to access the school curriculum and, at the same time, address Student’s functional skill areas for the purpose of assisting Student to be able to live and work in the community.
Through the services of a teacher of the visually impaired, Norwood has utilized a voice-output program as an assistive technology device for Student. Student is able to read and write in Braille All relevant materials have been translated into Braille. Recreational equipment accessible to persons who are blind (for example, a beeping kickball) are used at school and Student participates. Testimony of Moore.
Norwood has provided Student with an expanded core curriculum for students with visual impairments, and Norwood has put together a functional math program appropriate for Student. Student is an avid reader and reads at the 6 th grade level. Norwood staff is “constantly” giving Student books to read in Braille, and he just finished The Great Gatsby . Testimony of Salaun.
Through the services of an orientation and mobility instructor, Student has developed the foundation for travel skills and is oriented to Norwood High School. Student is working on what to do if he becomes lost outside of the school environment. Testimony of Watts.
Norwood has utilized an empirically supported social curriculum, as recommended in Dr. Prather’s neuropsychological report and in the May Center’s functional behavior assessment. Norwood has also implemented a behavior plan, consistent with the May Center functional behavioral assessment and as recommended in Dr. Prather’s neuropsychological report. To address behavior-related issues, Norwood has utilized applied behavior analysis techniques, as recommended in Dr. Prather’s neuropsychological report and in the May Center’s functional behavior assessment. Testimony of Putnam, Ryan, Salaun; exhibits S-3, S-4, S-5, S-8, S-19, P-4, P-5.
Through its IEPs, Norwood has also recognized the need for and proposed services for Student after school in the community, within the home, and during the summer, all as discussed in separate sections below.
The testimony of Norwood staff and Norwood consultants provided unrebutted and persuasive evidence that Student has made meaningful and effective improvement with respect to a number of areas regarding his behavior (including self-control), social skills (including peer relations), language skills, daily living skills (such as meal preparation, washing and drying clothes, folding clothes, cleaning tables, shoe tying, and food preparation), independent work skills, and adaptive behavior during the 2007-2008 school year. Documents admitted into the record substantiate progress in some of these areas. Written progress reports further reflect Student’s improvement in such areas as accurately reading a Braille clock, practical money skills (for example, identifying all common coins and making purchases), pragmatic language, transitions, use of assistive technology to complete school assignments independently, and indoor travel skills. In addition, Norwood’s transition program is drafted to allow Student to learn transition skills and move into paid employment. Testimony of Moore, Salaun, Clougherty, Watts, Tartufo, Putnam, Ryan; exhibits S-7, S-8, S-10, S-11, S-18.
As reflected in Norwood’s program descriptions, discussed above in part IIIC of this Decision and as described by Norwood’s witnesses, Student’s education for the 2008-2009 school year would take place in the LEAD program, a different program than that for the 2007-2008 school year (the PACS program). However, its overall focus and orientation are similar, the special education and related services are nearly identical, and several of the service providers (the teacher for the visually impaired, the orientation and mobility specialist, and the May consultation services) are the same as that provided during the 2007-2008 school year. It is not disputed that the best indicator of the progress likely to be made in Norwood’s proposed educational program at LEAD is the progress achieved at the PACS program. Testimony of Wyche, Putnam, Moore, Watts.
There are two exceptions to the above analysis. The first pertains to mobility and orientation services. Norwood’s mobility and orientation specialist (Ms. Watts) testified that during the 2008-2009 school year, Student may require more services than are presently called for (4×60 minutes per five-day cycle) because of increased settings next year, including orienting him to his own backyard. Student has made progress and can generalize what he knows, but he needs experience in different areas outside of the school environment, including his home community. Testimony of Watts. I therefore find that additional mobility and orientation services may be needed for the 2008-2009 school year.
Second, Norwood’s proposed service delivery grid proposes counseling once during the five-day cycle, but the service delivery grid does not specify the amount of time. Testimony of Wyche; exhibit S-21. I find that the IEP should specify the amount of time for this service.
For these reasons, I find that Norwood’s proposed program and services for Student are reasonably calculated to allow Student to make meaningful and effective progress for the 2008-2009 school year; provided, however, that the IEP Team shall meet to consider the need for any additional mobility and orientation services and shall determine the amount of time of counseling services to be provided Student.
Norwood has proposed providing additional services beyond the school day and school year. I now consider the appropriateness of Norwood’s proposed services during the summer, services at home, and services after school.
C. Summer Services
Norwood has proposed summer services for Student for the summer of 2008. Similarly, Norwood had proposed services for the summer of 2007 and has proposed services for the summer of 2009. The IEPs explain that summer services are being provided “to prevent skill regression.” See parts IIIB and IIIC, above, of this Decision.16
The need for summer services is supported by the testimony of Norwood’s principal expert (Dr. Putnam) and the neuropsychological evaluation report (by Dr. Prather). Dr. Prather wrote that “twelve month programming [is] essential to meeting [Student’s] basic educational needs and in order to minimize the well documented regression and loss of learning for students with Pervasive Developmental Disorders when there is a break/disruption in daily routines and instruction.” Exhibit S-4, P-4 (page 10).
Dr. Putnam testified that although he was unaware of any documented regression or loss of learning regarding Student’s activities of daily living skills when not involved in school, he was aware of the regression standard generally applicable to summer services and he agreed with Dr. Prather’s specific recommendations regarding Student’s need for summer services. In his testimony, Dr. Putnam further explained that Student’s summer program should continue the specialized services, including vision and other services that are provided during the school year. Dr. Putnam noted that Student may or may not require the same level of intensity of these services during the summer, but the same instructional methodology provided by appropriately trained and competent staff should continue in the summer program. Dr. Putnam further testified that, in his opinion, six weeks of summer services would be sufficient in order to address any concern regarding regression or loss of learning as a result of the summer break. In his testimony, Dr. Putnam stated that he was not aware of what Norwood had actually proposed for summer services. Testimony of Putnam.
Norwood’s orientation and mobility specialist (Ms. Watts) further explained in her testimony that during the summer program, staff should know how to address Student’s orientation and mobility issues and should receive in-service training if necessary for this purpose. Parent also testified as to the need for a summer program that would provide her son with continuing support to learn life skills. Testimony of Watts, Parent.
For the summer of 2008 (as with the summer of 2007), Norwood has proposed the “Handi Kids” program for Student for approximately seven and one-half weeks. The last signed IEP calls for six weeks of summer services. Student is provided with a 1:1 aide for this program. Testimony of Wyche, Parent; exhibits S-10 (IEP), S-17 (letter from Wyche to Handi Kids, dated May 15, 2008, reflecting Norwood’s commitment to fund Student at the Handi Kids summer program).
Handi Kids provides summer services for autistic children for the purpose of fostering social skills through recreational activities. Through the Handi Kids program, there is no continuity of Student’s special education or related services nor is there any skill development for Student, other than social skills. Testimony of Wyche, Parent.
Because summer services proposed by Norwood at Handi Kids would not continue the specialized services (including vision and other services that are provided to Student during the school year), I find that the Handi Kids programs does not meet the minimum FAPE and regression standards regarding summer services for Student.
I find that Norwood should provide Student with summer services (that continue Student’s specialized services) for at least six weeks, consistent with the recommendations of Dr. Prather, Dr. Putnam, and Ms. Watts, as summarized above.17
D. Home-Based Services
The overall purpose of Norwood’s educational programs is, appropriately, to afford Student the opportunity to learn how to live and work independently in the community. As the testimony of Norwood’s principal expert (Dr. Putnam) made clear and as all other witnesses (who testified regarding this issue) and relevant written reports agreed, effective and meaningful progress for Student requires not only that he learn skills and develop greater abilities at school, but that he be able to generalize much of what he has learned (particularly with respect to social skills, orientation and mobility skills, adaptive behavior, and daily living skills) into the home and community. Successful generalization of these skills requires repetition and reinforcement of learning outside of the school environment. In short, in order for Student’s educational program to have meaning, he must have effective home and after-school services so that he will be able to carry over to the home and community environments much of what he is able to learn at school. Through these additional services, Student can receive the comprehensive and consistent programming that is necessary in order for him to make effective progress in those areas most critical to his educational development. Testimony of Putnam, Moore, Fragopoulos; exhibits S-4, P-4 (Prather’s report at pages 10-11).18
Norwood does not disagree. It has provided, within all of its proposed IEPs, for additional services in the home and after-school. Exhibits S-10, S-12, S-21, P-2. I now consider the appropriateness of Norwood’s home-based services and (in the next section of this Decision) its after-school services.
The proposed service delivery grid for the 2008-2009 school year provides for family support services by May Center staff (under consultant contract with Norwood) for one hour, three times per week. The IEP for the 2007-2008 school year was similar in this regard. Exhibits S-10, S-12, P-2.
Home consultation was provided to Parent from March 2007 to May 2007. However, in the beginning of the 2007-2008 school year, Parent declined all further home services, and no further home-based services have been provided. Testimony of Ryan.
Parent testified that she refused further May Center home-based services because she concluded that what was being offered was not effective for her son. Student’s former teacher, who has known Student and Parent for many years (Ms. Fragopoulos), further explained that Parent feels “out of the loop” with Norwood staff and does not understand how to help her son. The South Norfolk County Association for Retarded Citizens (ARC) social worker (Ms. Joyce), who spent time in the home providing after-school services, further explained that Parent is under tremendous stress at home since she and her husband work and they have another child, so it is a struggle to meet all of Student’s needs. Ms. Joyce opined that Parent does not know how to respond or address her son’s needs at home. She testified that Parent refused home services because Parent felt they were not what she needed and she does not like having others in her home. It was also apparent from Parent’s testimony that Parent believes her son’s principal disability is blindness and accordingly is more focused on the need to address blindness-related issues, as compared to deficits pertaining to her son’s autism disability, which Norwood believes to be the principal deficits to be addressed. Testimony of Parent, Joyce, Fragopoulos, Moore.
At the evidentiary hearing, there was a consensus among those witnesses who addressed the need for continuing home-based services that it would be important to begin again the process of evaluating the current need for these services. This process of re-evaluation should include an assessment by a team of persons that would include Parents as well as someone with expertise in services for students with a vision impairment and someone with an expertise in services for students on the autism spectrum. Testimony of Putnam, Ryan, Moore.
It may, possibly, also be useful to have a mobility and orientation specialist included in this process to consider how to orient Student to his own backyard and his home community. Testimony of Watts.
Dr. Putnam’s and Dr. Ryan’s testimony were persuasive that the following principles should be followed. Home services should address the issues of most concern to Parents, utilizing interventions that Parents are able to and are interested in implementing, as this will likely result in the most investment from Parents and will most likely lead to successful carry-over into the home. Towards this end, a team approach should be used to determine what home services are to be provided and how these services would be provided, and it is essential that Parents be full participants in this process. The reconsideration of home-based services should include a problem-solving process (that includes Parents) to consider the variety of things that could possibly be done as part of these services and then to choose those components that all parties can agree upon. It will be useful to understand this process as taking an incremental approach – that is, starting with what the parties can agree upon, hopefully achieving success in that area, and then seeking to expand the services into additional areas. If the home-based services to be provided do not pertain to Student’s autism (and behavior issues related to autism), someone other than Norwood’s autism consultant should take the lead, but with continuing consultation from an expert in the area of autism. Testimony of Putnam, Ryan.
In her testimony, Norwood’s Director of Pupil Services (Ms. Wyche) also suggested that Parent observe at school to see how teachers and other professionals relate to Student and address his behavior deficits. This may allow Parent to model what is being used effectively in school. Student thrives on consistency and structure, and this approach may also result in greater consistency between home and school. Testimony of Wyche, Moore. Norwood should consider Ms. Wyche’s suggestion as a possible adjunct to its home-based services.
I find that there should be a re-evaluation of the need for home-based services and then delivery of home-based services based upon this re-evaluation, as discussed above.
E. After-School Services
Student’s IEP for the 2007-2008 school year states that Student requires a longer school day (i.e., after-school programming) to enhance his social/pragmatics/leisure skills. The IEP service delivery grid calls for leisure skills services by Charles River staff twice per week after school. Exhibit S-10.
Since October 2006, the ARC, through funding from the Massachusetts Department of Mental Retardation (DMR), has been providing after-school services once or twice per week, for one to one and one-half hours per session. This has been for the purpose of providing family support and has included taking Student into the community (which also has provided respite for Parent). During the spring of 2007, the ARC also provided a daily living skills program to Student for six weeks for one and one-half hours per week. These services ended around May 20, 2008 when Student was found ineligible for DMR services. Student has gained improved practical skills, for example, involving cooking and washing. Testimony of Joyce.
For the 2008-2009 school year, Norwood has proposed a service delivery grid that calls for leisure skills services five times per week after school. The service delivery grid does not specify the amount of time, nor is there any indication of what kind of after-school services are to be provided. Ms. Wyche explained in her testimony that there will be a process during the beginning of the 2008-2009 school year to determine the specifics of Student’s after-school services so that these services will complement what is being learned during the school day.
I find that the IEP Team should meet to discuss the scope and nature of after-school services and should determine the amount of time for these services.
F. Participation with Other Students who are Blind or Visually Impaired
Student is currently able to relate to others at Norwood High School in a meaningful way. Ms. Wyche testified that Student considers everyone at the school to be his peer for purposes of social interactions. At the same time, it is not disputed that Student has substantial deficits regarding social skills, and Norwood’s IEPs have sought to address this area of need. There was persuasive testimony from persons expert in the needs of students with visual impairments that there are substantial and unique benefits to having blind or visually-impaired students spend meaningful time with each other. Through these interactions and relationships, blind and visually-impaired students are able to learn from each other, particularly with respect to social skills, thereby obtaining educational benefits not available through interactions with sighted students. These benefits can be obtained through recreation activities with other blind or visually impaired students, as well as through more formal educational opportunities. Parent has sought to arrange such recreational activities but, as a practical matter, it has not been possible for Parent to do so, with the result that Student has not been provided this opportunity. Testimony of Wyche, Moore, Sanborn, Parent.
There have been one or two other visually-impaired students at Norwood High School, but these students have not and are not likely in the future to offer Student the opportunity to learn with or to develop meaningful social relationships with other students who are blind or visually impaired. Testimony of Moore, Salaun.
I find that in order to provide Student with an appropriate public education, Norwood must provide substantial opportunities for Student to develop meaningful relationships with other students who are blind or visually impaired. There may be a variety of ways of satisfying this requirement – for example, either through an appropriate after-school program that meets on a regular basis throughout the school year and that is organized specifically for blind and visually-impaired students or through an appropriate summer program specifically for blind and visually-impaired students. The IEP Team should meet to determine how this requirement will be satisfied.
I find that in determining the specific summer program for Student (as well as considering what, if any, compensatory services may ultimately be due regarding summer services) and in determining the specific after-school activities for Student, Norwood should take into consideration Student’s need to spend time with other students who are blind or have a significant visual impairment.19
G. Vocational Assessment
There was unrebutted evidence that Student should be provided a vocational assessment.
I further note that the emphasis of Student’s LEAD program for the 2008-2009 school year will be vocational training, and the written description of this program indicates that its specialized services include individualized vocational assessment. Testimony of Sanborn, Parent, Wyche; exhibit S-21.
A vocational assessment should be conducted by one or more persons with sufficient expertise with Student’s visual impairment and his autism spectrum disability, and it should serve the purpose of assisting the IEP Team to identify specific, realistic vocational goals for Student.
H. Need for Residential Services
Through the BSEA Hearing, Parent has sought residential services for her son. Under the IDEA, a Student is entitled to residential educational services when the educational benefits to which Student is entitled can only be provided through round-the-clock special education (and/or related) services, thus necessitating placement in an educational residential facility.20
Parents have supported their claim for residential services through the written neuropsychological evaluation of Dr. Prather, which concluded in relevant part as follows:
Being in a residential setting is considered essential in order to assure that [Student] will have the time and comprehensive support needed to begin to develop rudimentary self-help skills and to provide appropriate instruction and opportunities for developing his social and community living skills as well as academic progress.
Exhibit S-4, P-4 (page 11).
The testimony of Student’s former teacher of the vision impaired (Ms. Fragopoulos) also supported residential services, as she concluded that Student would not likely make sufficient progress (particularly with respect to generalizing skills outside of the classroom) without residential services.
I do not find this evidence to be convincing for several reasons. First, for reasons discussed earlier in this Decision, I find that Norwood has provided sufficient evidence to persuade me that with the proper combination of in-school, after-school, home-based, and summer services, Norwood’s IEP will likely result in effective and meaningful progress without the necessity of residential placement.
Second, neither Dr. Prather’s report nor Ms. Fragopoulos’ testimony considered Student’s 2007-2008 educational program and the progress that Student has been making as a result of that program. Therefore, neither explained why that education program, with modifications described above, could not appropriately meet Student’s needs for the 2008-2009 school year.
Third, Dr. Prather did not testify. Although I found helpful and have relied, to some extent, upon Dr. Prather’s report, her recommendations are given less weight than if she had testified in a persuasive and credible manner. Testimony allows for cross-examination as well as clarifying questions from the Hearing Officer, whereas the document does not. Testimony is particularly important with respect to complex evaluations (such as Dr. Prather’s neuropsychological evaluation) and recommendations that are in dispute.
For these reasons, I find that Norwood is not required to provide Student with residential educational services.
ORDER
Norwood’s proposed educational services for the summer of 2008 are not reasonably calculated to provide Student with a free appropriate public education and shall be modified so as to continue Student’s specialized services for at least six weeks, as described above in part IVC of this Decision.
Norwood’s proposed educational program for Student for the 2008-2009 school year is reasonably calculated to provide Student with a free appropriate public education, provided that the following modifications are made and procedures followed:
· Norwood shall re-evaluate the current need for and make a new proposal for home-based services, as described above in part IVD of this Decision.
· Norwood shall provide substantial opportunities for Student to develop meaningful relationships with other students who are blind or visually impaired, as described above in part IVF of this Decision.
· Norwood shall conduct a vocational assessment of Student, as described above in part IVG of this Decision.
· Norwood shall convene an IEP Team to consider and determine Student’s IEP for the 2008-2009 school year. The Team’s determinations shall include (1) whether additional mobility and orientation services are needed, (2) the amount of time for counseling services to be included in the IEP, (3) the amount of time for after-school services to be included in the IEP, (4) how Student will be given substantial opportunities to develop meaningful relationships with other students who are blind or visually impaired, (5) whether a specific time should be designated on the service delivery grid of the IEP for reading/language arts special education services, mathematics special education services, and adaptive physical education.
Norwood is not required to provide Student with a residential educational program.
By the Hearing Officer,
William Crane
Dated: July 2, 2008
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 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 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
In its closing argument (pages 6-7), Norwood took the position that since the Parents’ hearing request did not reference the 2008-2009 school year, services and placement for that year should not be considered. Yet, the previous Hearing Officer Rosa Figueroa’s ruling of June 5, 2008 stated that, based upon a conference call with the parties on June 4, 2008, the issues for hearing are the appropriateness of the services and placement for the 2008-2009 school year. Norwood did not indicate its disagreement with this recitation of the issues until it made an objection during the course of the hearing on June 11, 2008. In response to a question from the Hearing Officer, Norwood’s attorney agreed that Norwood would not be prejudiced if the hearing addressed the appropriateness of the proposed 2008-2009 services and placement. I also find that Norwood was prepared to address this issue at hearing. Parents is pro se , and her hearing request would make little sense if read otherwise since Parent only seeks prospective relief.
2
In 2007, Chad Ryan obtained a Ph.D. Exhibit S-14.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
6
MGL c. 71B, ss. 1, 2, 3.
7
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
8
Rowley, 458 U.S. at 192 (1982) (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”) .
9
Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”); Frank G. v. Board of Educ. of Hyde Park, — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
10
Rowley, 458 U.S . at 200 ( “ Implicit in the congressional purpose of providing access to a ‘free appropriate public education’ is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.”).
11
Rowley , 458 U.S. at 197, n.21 (1982) (“ Whatever Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-maximizing education.”); Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st 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.”).
12
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993); 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (defining “ eligible student” to mean a student who has a disability and as a “consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service”); 603 CMR 28.02(18) (defining progress effectively in the general education program ).
13
See, e.g ., pages 3 and 4 of the most recent IEP that was partially accepted by Parent. Exhibit S-10.
14
MGL c. 71B, s. 1 (defining the term “special education” to mean “educational programs and assignments including special classes and programs or services designed to develop the educational potential of children with disabilities” ). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”).
15
Schaffer v. Weast , 546 U.S. 49, 62 (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” ).
16
Both federal and state special education regulations contemplate the need for summer services for certain special education students. 34 CFR 300.106; 603 CMR 28.05(4)(d)1. State regulations use a regression standard, while the federal regulations use a FAPE standard. The courts have interpreted the federal regulatory standard as requiring summer services either to avoid regression ( see , e.g . Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990) or when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome ( see , e.g ., Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986)).
17
As a practical matter, it may be too late to implement the above-described requirements for the summer of 2008; and if so, the IEP Team should meet to consider what compensatory services may be owed Student. I also note that for purposes of the instant Decision, it would be premature for me to make any findings or issue an order with respect to any potential compensatory claim.
18
See, e.g., 20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living .”) (emphasis supplied); Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 201 n.23 (1982) (Congress passed the IDEA, in part, so that students with disabilities could “achieve a reasonable degree of self-sufficiency” and “become a contributing part of our society”); Letter to Moore , 39 IDELR 189 (OSEP 2002) ( IEPs for children with disabilities must, to the extent appropriate for each individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living).
19
Parent has expressed particular interest in the summer program at the Perkins School for the Blind. She testified that by the time this program was considered by Norwood for the summer of 2008, the program was full. The IEP Team should consider the summer program at the Perkins School for the Blind, and the Team should do so in a timely manner so that, if it is determined by the Team that Student should attend this program, there will be an opportunity for Student to apply and attend this program for the summer of 2009.
20
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).