COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Peter1
BSEA # 03-5108
DECISION
This decision is rendered pursuant to M.G.L. Chapters 15, 30A, and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. § 794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on July 10 and 11, 2003 at the Massachusetts Bureau of Special Education Appeals in Malden, MA. The record was left open for receipt of final exhibits and written final arguments until August 14, 2003.
Those in attendance were:
Mother
Louis Vernacchio, M.D. Pediatrician, Children’s Hospital
Kelly Wicker Child Life Specialist, Children’s Hospital
Kristin Cunnningham Social Worker, Children’s Hospital
Daniel Zibel Law Clerk
James Flaherty, Jr. Attorney for Parent
Aida Ramos Assistant Program Director, Boston Public Schools
Maryann Molloy Assistant Program Director, Boston Public Schools
Tracey Williams Behavior Specialist, Boston Public Schools
Laura MacLeod Classroom Teacher, Boston Public Schools
Andrea dos Santos Law Clerk, Boston Public Schools
Elizabeth Kurlan Litigation Director, Boston Public Schools
Alissa Ocasio Attorney for Boston Public Schools
Christine Adermann Court Reporter
Sonya Medeiros Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parent’s Exhibits labeled P-1 through P-332 ; Boston Public Schools’ (BPS’) Exhibits labeled S-1 through S-7; and approximately 8 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Peter is a 9 year old boy who lives with his mother in Boston, MA. Peter attended an early intervention program in Quincy, MA; K-1 in BPS’ Conden Elementary School; K-2, 1st grade, and 2 nd grade until April 2002 in BPS’ Blackstone Elementary School; and from April 2002 until the present time in BPS’ Harvard Kent Elementary School (testimony, Mother; P-9, 10; S-2F, 2-H).
Peter has multiple disabilities and has always been a special education student functioning under Individual Education Plans (IEPs) written by BPS. (See P-13, 14,15,16,17,18,19,20; S-1.)
On March 11, 2003, Peter’s team met and prepared an IEP covering March 2003 through March 2003 which recommended Peter’s continued placement at Harvard Kent Elementary School (Harvard Kent) in a substantially separate multi-handicapped class. On May 2, 2003 Parent rejected this IEP and placement (P-13; S-1). On June 5, 2003 Parent’s attorney requested a hearing before the BSEA and an initial hearing date was scheduled for June 25, 2003. On June 10, 2003 BPS’ attorney requested a postponement and a pre-hearing conference. On June 13, 2003 the Hearing Officer granted the postponement; scheduled a pre-hearing conference for the initial hearing date of June 25, 2003; and scheduled the hearing for July 2, 2003. At the June 25, 2003 pre-hearing conference, the parties agreed to two days of hearing scheduled for July 10-11, 2003.
ISSUES IN DISPUTE
1. Does BPS’ proposed IEP for Peter in the multi-handicapped program at Harvard Kent appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. If not, what type of educational program/placement does Peter require to appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment?
STATEMENT OF POSITIONS
Parent’s position is that BPS’ proposed IEP for Peter in Harvard Kent’s multi-handicapped program is inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. Parent contends that Peter requires a year around residential placement to appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment. Parent requests that BPS be ordered to convene Peter’s educational team to develop and implement an appropriate IEP for a residential educational program and to begin the referral process for appropriate schools.
BPS’ position is that its proposed IEP providing a substantially separate classroom in the multi-handicapped program at Harvard Kent is appropriate to address Peter’s special education needs so as to provide him with FAPE in the least restrictive educational environment. BPS contends that Peter does not require the restrictiveness of a residential education program in order to provide him with FAPE in the least restrictive educational environment.
PROFILE OF STUDENT
Peter is a 9 year old boy with multiple disabilities. Peter has been diagnosed with the following disabilities: 1) global developmental delay, including moderate mental retardation and mild cerebral palsy; 2) seizure disorder; 3) congenital motor nystagmus (involuntary eye movements) and exotropia (eye drifting outward); and 4) behavioral problems.
Peter’s global developmental delay/moderate mental retardation results in his functioning on a 2-3 year old level based upon informal assessment by his pediatrician (testimony, Vernacchio) and a 4-5 year old pre-school level based upon observation of his teacher (testimony, MacLeod). Peter is not yet toilet trained and wears diapers (testimony, Vernacchio; MacLeod). Peter’s seizure disorder has led to frequent emergency room and/or hospital admissions due to seizure activity, lethargy, elevated levels of anti-seizure medication, and adjustment and/or changes in seizure medications (testimony, Vernacchio; P-1, 25). Peter’s visual problems are not primary problems educationally. He can see adequately for reading and learning and has enough vision to function in school without assistive devices (testimony, Vernacchio). Peter’s behavioral problems include tantruming, hitting himself and others, biting, kicking, pushing/throwing items, and other out of control behaviors. Such behaviors appear to be triggered by transitions, environmental/routine changes, medications, and directives/non-preferred tasks or activities/corrections. Four-five behavioral incidents have let to emergency room visits and two of those have led to hospitalization. (See testimony Vernacchio; MacLeod; Williams; P-1, 4, 13; S-1, 2D.)
SCHOOL’S PROPOSED PROGRAM
BPS proposes that Peter continue to be educated in the substantially separate class in the multi-handicapped program at the Harvard Kent under its proposed IEP covering March 2003-March 2004. Under this IEP Peter would be placed in a class of 6 students (including Peter) with a special education teacher and two paraprofessionals, for a student: staff ratio of 2:1. Ms MacLeod, who began in this class in December 2002 and has taught this class since January 2003, has a bachelor’s degree and certification in early childhood and elementary education (pre-school to 6 th grade) and will receive her masters degree and certification in severe special needs in August 2003.
Under the proposed IEP’s Service Delivery Grid, Peter will receive 10 hours per week of self help skills; 10 hours per week of learning readiness skills; 10 hours per week of reading; 10 hours per week of behavioral-social-emotional work; speech-language therapy twice per week for a total of 40 minutes; occupational therapy once per week for 30 minutes; adaptive physical education once per week for 30 minutes; and perceptual training once per week for 10 minutes. The school day runs from 9:10 A.M. to 3:10 P.M. each day. The IEP does not provide for either an extended school day or an extended school year. However, BPS is providing Peter a summer school program this summer and has provided a summer school program for the last several years.
Peter gets off the bus himself and goes to breakfast with his teacher. He goes through the breakfast and lunch lines himself, chooses what he wants to eat and is able to eat by himself. He knows his school schedule by heart. He can spell his first name and last name. He can completely write his first name and is beginning to write his last name. He speaks in words and short sentences. He can count to 30 using manipulatives. He recognizes letters, numbers and sounds. He interacts well with teachers and staff and has friends in the classroom with whom he talks and socializes. Each student has a regular education “buddy” who comes into the classroom, usually at least weekly, and does activities with their special needs buddy. Students are also periodically taken into regular education classes when the activities are appropriate for normalization and mainstreaming purposes.
(See testimony MacLeod; Molloy; Williams; P-13; S-1.)
PARENT’S PROPOSED PROGRAM
Parent proposes no specific residential program or placement and, at this time, Peter has not been accepted at any residential program. However, Parent asserts that a residential program is necessary because Peter’s behavioral problems have been increasing in frequency and intensity over the last several years, becoming more difficult to manage; and that such behaviors are inextricably intertwined with Peter’s ability to be educated and achieve meaningful educational progress.
FIINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Peter is a child with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature and manifestations of Peter’s special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon 2 days of oral testimony, the written documentation introduced into evidence, and a review of the applicable law, I conclude that:
I. BPS’ proposed IEP for Peter in Harvard Kent’s substantially separate multi-handicapped program is appropriate to address Peter’s special education needs so as to provide him with FAPE in the least restrictive educational environment with several modifications/amplifications delineated below;
II. Parent has failed to prove the necessity for a residential program to address Peter’s special education needs at this time.
My analysis follows.
Parent does not explicitly attack any of the specific components of BPS’ proposed program nor the overall program itself. Rather, Parent argues that for a child with Peter’s disabilities such program is simply not sufficient; that Peter has not made any meaningful progress in such placement based upon the observations of the Children’s Hospital witnesses; that Peter’s behavior’s are increasingly difficult to manage; and, therefore, Peter requires a residential program 24 hours per day, 7 days per week, 365 days per year where behaviors can be controlled and transitions minimized. Parent’s argument for the efficacy of residential placement is based upon two extended hospitalizations of Peter at Children’s Hospital: 1) a two week hospitalization on the psychiatric unit in November 2002; and 2) a three month hospitalization on the general medical unit from approximately April 10, 2003 to July 10, 2003. Witnesses from Children’s Hospital supporting residential placement based upon Peter’s “progress” during his Children’s Hospitalizations were Dr. Vernacchio, Peter’s pediatrician via testimony and affidavit (P-1); Ms. Cunningham, social worker, via testimony and affidavit (P-3); Ms. Wicker, child life specialist, via testimony; and Dr. Patel, a psychiatrist, via affidavit (P-2).
Parent presented no witnesses with any educational expertise (educational expert; special education professional; psychologist; neuropsycologist; speech-language pathologist; behaviorist etc.) advocating a residential educational placement for Peter. Similarly, no written evaluations (comprehensive multi-disciplinary evaluation or separate educational, psychological, neuropsychological, speech-language, behavioral evaluations etc.) were submitted recommending a residential educational placement for Peter. Indeed, no such independent evaluations have apparently been requested or performed.3 The only evaluations of Peter submitted into evidence by either Parent or BPS have been performed by BPS, and none of Peter’s 2003 evaluations performed by BPS: (Psychological Evaluation, P-9; S-2F; Functional Behavioral Assessment, P-4; S-20; or Speech-Language Evaluation, P-7; S-2C) recommends either an out of district placement or a residential placement.
I found the testimony of Dr. Vernacchio, Ms. Cunningham and Ms. Wicker to be honest, sincere and straightforward. I was most impressed by Dr. Vernacchio’s and Ms. Cunningham’s dedication to Peter. However, none of these professionals has any degrees, certifications or licensures which confer any educational expertise regarding the appropriate educational program for Peter or, even more fundamentally, what constitutes appropriate educational progress for a child with Peter’s degree of developmental disability, compounded by his seizure disorder and behavioral disabilities.4
Further, except for Dr. Vernacchio’s attendance at the March 2003 team meeting and 1-2 phone calls between Ms. Cunningham and BPS personnel regarding tutoring while Peter was hospitalized, Dr. Vernacchio, Ms. Cunningham, and Ms.Wicker testified (and there is no indication from Dr. Patel’s affidavit) that they have had no contact with BPS regarding Peter’s educational program; there has been no observation of Peter’s BPS program; and there has been no observation of Peter functioning within his BPS program.
In summary, I conclude that Parent’s assertions that there has been no meaningful educational progress and that Peter requires a residential placement are unpersuasive given the lack of any expert testimonial or documentary evidence supporting such a placement; given the lack of any testimonial or documentary evidence substantiating Peter’s lack of progress in light of his limited cognitive capacity/functioning ability; and given that there has been no expert observation or otherwise of Peter’s educational functioning/performance within his current BPS program.5
I specifically note the numerous emergency room visits, hospitalizations and medication changes/adjustments due to Peter’s seizure disorder, medication toxicity, lethargy, level of consciousness and sleepiness (testimony, Vernacchio; P-1, 25A, 25B, 26, 27), as well as his sometimes needing to sleep during the school day (testimony, MacLeod). Clearly, Peter’s medical problems/medication issues relating to his seizure disorder have impacted upon his readiness and availability to be educated and make educational progress.
The Children’s Hospital witnesses all cited Peter’s “progress” within the more structured residential hospital environment as a rationale for recommending a residential placement for Peter. While hospitalized at Children’s Hospital Peter’s weekdays consisted of one hour of tutoring per day between 1 P.M.-2 P.M. He was allowed time in the activity room/play room from 9 A.M.-10:30 A.M. and from 2 P.M.-3:30 P.M. (where there were other children) during which time he could come and go as he pleased between the activity/play room and his hospital room. He also had a daily movie time. On weekends the activity/play room was closed so Peter stayed in his hospital room. Peter had a 1:1 sitter at most times. He had downtime or quiet time for a period in the morning and for a period in the afternoon. He also had breakfast, lunch, dinner, and bathtime daily. Nurses implemented a toileting schedule. ( See testimony, Wicker; Cunningham; Vernacchio.) I do not find that the above described scenario can be considered analogous to a residential educational placement. Few demands were put on Peter. Further, Peter’s “progress” cited by Ms. Cunningham, Ms. Wicker and Dr. Vernacchio, to wit: being more verbal; speaking in sentences; better able to follow directions with advanced warnings; interacting with other children and the above adults; and some parallel play with children instead of ignoring them; are all things that Peter was doing in his BPS placement before Peter’s three month Children’s Hospitalization. (See testimony, MacLeod; Williams; Malloy; P-7, 9; S-2C, 2F; SCHOOL’S PROPOSED PROGRAM , above.)
Finally, I note that while Peter was hospitalized at Children’s Hospital for 3 months he experienced frequent, significant acting out and behavioral issues. These incidents occurred daily or even more often at the beginning of his hospitalization and several times weekly towards the end of his hospitalization often requiring 3-4 staff members to hold him down, sometimes swaddling him in a blanket to physically restrain him. (See testimony, Vernacchio; Cunningham; P-1, 2, 29.)
Indeed, Children’s Hospital nurse/clinical coordinator of the unit on which Peter was placed, Ms. Schubert, prepared an affidavit and a chart of Peter’s behavioral difficulties from April 7, 2003-May 16, 2003 (P-29). This chart documents 14 behavioral incidents which necessitated Peter’s being wrapped in a blanket and being immobilized by 3-4 staff.6 In contrast, in Peter’s BPS placement from January 2003 until he was hospitalized in April 2003, Peter had to be physically restrained only 2 times by 1 person; and only 1 of these behavioral incidents required his total removal from class and transport, by ambulance, to the emergency room. (See testimony, MacLeod; P-5.)
Based upon the above, I do not find Peter’s extended hospitalization to be analogous to a residential educational placement; to have shown demonstrable educational progress; or to be an example of how a residential placement would benefit Peter behaviorally.
The evidence indicates that many of Peter’s most serious behavioral incidents have happened outside of school i.e., outside in public areas, on public transportation, and in the home. The evidence also demonstrates the following: 1) that Parent has some cognitive limitations/mild mental retardation which impacts upon her ability to learn behavioral techniques to manage Peter; 2) that Parent’s limitations are a contributing factor in the recommendation for a residential placement; 3) that Parent has a Department of Mental Retardation (DMR) caseworker and receives DMR services and assistance; 4) that following a meeting at Children’s Hospital with DMR and the Department of Social Services (DSS), a DMR children’s services coordinator observed Peter at Children’s Hospital and a DMR psychologist evaluated Peter on several occasions while he was hospitalized; 5) that Peter now has a DMR caseworker and since July 2003 Peter has been receiving DMR services including behavioral homeworkers who come into the home with Peter and Parent from 4 P.M. to 7 P.M. on weekdays and also over the weekends to provide behavioral management, parenting support and safety in the home, for at least an interim basis; 6) that Parent has requested, in writing, voluntary services from DSS but DSS has declined to open the case or offer any direct services; and 7) that Peter’s case has been discussed at the Executive Office of Health and Human Services (EOHHS) and that DMR has formally requested DSS services/financial residential support for Peter, which is now pending at the DSS Commissioner’s Office. (See testimony, Cunningham; Vernacchio.) I find that there are too many non-educational, familial, and human service agency variables and unanswered questions to consider ordering a 9 year old into the most restrictive educational placement possible under state and federal special education law – a residential educational placement for 24 hours per day, 7 days per week, 365 days per year.
I conclude that with several modifications/amplifications, BPS’ IEP provides Peter with FAPE in the least restrictive educational environment. This IEP meets the recommendations of BPS’ school psychologist who evaluated Peter over 3 days in March 2003, prior to his extended hospitalization, to wit: 1) a highly structured small group setting to address his educational and behavioral needs with instruction emphasizing multi-sensory teaching techniques, including tactile-kinesthetic learning; and 2) implementation of a behavioral modification plan (P-9; S-2F). A functional behavioral assessment was also done in March 2003 which analyzed Peter’s behaviors and codified effective behavioral interventions (P-4: S-2D; testimony, Williams). Ms. MacLeod is Peter’s special education teacher who taught him for 3 months prior to his extended hospitalization.
Based upon her detailed testimony, I find that Peter made progress within the multi-handicapped classroom in terms of functional academics, language skills, ADL (activities of daily living) skills, and socialization/interactional skills. (See SCHOOL’S PROPOSED PROGRAM , above; testimony, MacLeod.) Ms. MacLeod testified that it is not environment change that affects Peter but rather changing tasks i.e., stopping one activity to go on to a different activity. Ms. Macleod testified that with appropriate warnings (i.e., going to stop in 5 minutes, going to stop in 3 minutes, going to stop in 1 minute) Peter remains much more in control. I find that Ms. MacLeod was an effective teacher with Peter; had a good rapport with Peter; was highly sensitive to/able to anticipate Peter’s antecedent behaviors and signs which signaled potential behavioral difficulties; and was successful in utilizing behavioral management techniques to defuse and deescalate many behavioral problems before they occurred or intensified.7
I note the testimony of Ms. Williams, BPS citywide behaviorist, who helped write the functional behavioral assessment with Ms. MacLeod. Ms. Williams is certified in intensive special education; is trained in and is a trainer of crisis prevention interventions; and has 4 years of prior experience in BPS as a special education teacher in a multi-handicapped classroom. Ms. Williams testified that she observed Peter in his classroom on a number of occasions from February 2003 until his April 2003 hospitalization; that she would have continued working with Peter for the remainder of the 2002-2003 school year if he had not been hospitalized; and that Peter is on her caseload for the 2003-2004 school year. Ms. Williams testified that she had previously worked with Peter during his 2002 summer program and noted improved, more compliant behavior when she saw Peter again from February-April 2003. Ms. Williams testified that Ms. MacLeod’s behavioral techniques were effective with Peter; that she was aware of Peter’s triggers; and that she was able to plan ahead to circumvent behavioral situations. I note the testimony of both Ms. Williams and Ms. MacLeod that the behaviors exhibited by Peter are not out of the ordinary for multi-handicapped children with disabilities such as Peter’s and that they have worked with other children with similar disabilities who display such behaviors. Further, I note the testimony of Ms. Williams that Peter is not one of the more severe multi-handicapped children that she has worked with. Finally, I note the testimony of Ms. MacLeod that 5 of the 6 students in her multi-handicapped class display behavioral issues/behavioral outbursts, which include kicking, hitting, biting, and pushing.
Based upon the above, I conclude that BPS’ proposed IEP is essentially appropriate to provide Peter with FAPE. However, I find that several modifications/amplifications are necessary to insure that Peter receives FAPE. First, the evidence and the testimony of all of the witnesses clearly establishes that Peter requires extended year/summer special education services. BPS has, in fact, been providing Peter a summer program over the last 3 summers. Yet extended year programming has never been part of his prior IEPs or his current IEP and extended year services are clearly marked No on his prior IEPs and current IEP. (See P-13, 14, 15, 16, 17, 18, 19, 20; S-1.) I conclude that extended year/summer special education programming should be specifically written into and made an integral part of his IEP. Second, the IEP Service Delivery Grid provides for 40 hours of special education services per week. However, Peter’s school day/week is 6 per day (9:10 A.M. – 3:10 P.M.) 5 days per week which only equals 30 hours per week. (See P-13; S-1; SCHOOL’S PROPOSED PROGRAM , above.) Thus, Peter is getting 10 hours less of special education services per week then is listed on his service delivery grid. BPS is ordered to provide Peter an additional 10 hours per week of special education services. This may be done by either an extended day program within the school or by special education service delivery within the home, schedule to be worked out between the parties. Given the concern about carryover of skills and behaviors learned in school into the home environment, such additional 10 hours of services might well be better done by BPS professionals going into the home to interact with Peter, mother and DMR personnel.
ORDER
BPS’ proposed IEP is appropriate to provide Peter with FAPE in the least restrictive educational environment with the following modifications/amplifications:
I) Extended year/summer programming is to be specifically incorporated into Peter’s current IEP;
II) Peter is to receive 10 hours per week of additional special education services either in school or in the home.
RECOMMENDATION
Parent requests a comprehensive, multi-disciplinary independent evaluation of Peter’s functioning.
By the Hearing Officer,
__________________________
Raymond A. Oliver
Dated: October 14, 2003
1
Peter is a Pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
P-25 was excluded from evidence.
3
Query why, during Peter’s 3 month hospitalization at Children’s Hospital from April-July 2003, no multi-disciplinary independent evaluation was requested or performed!
4
Based upon her affidavit Dr. Patel, Peter’s psychiatrist who has also advocated residential placement, appears to have been involved primarily in psychotropic medications for Peter to address his behaviors. There is no indication of any type of psychotherapeutic relationship or any type of play therapy. (See P-2.)
5
I note that Dr. Vernacchio and Dr. Patel usually see Peter when he is in some type of crisis situation or hospitalized and that Ms. Cunningham and Ms. Wicker have only seen Peter within the hospital environment when he has been hospitalized.
6
Other such incidents occurred after May 16, 2003 but they were not documented in this manner (testimony, Cunningham).
7
Some of the behavioral techniques utilized by Ms. MacLeod include use of clear, consistent language; proximity control; modeling behaviors; shaping behaviors; distraction and redirection to help Peter refocus; change his environment/removal from the situation with an out-of-class task; removing other students from the room; and physically restraining Peter when absolutely necessary. (See testimony, MacLeod; Williams.)