COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Seekonk Public Schools BSEA #04-5076
DECISION
This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.
On June 1, 2004, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that the Seekonk Public Schools’ (Seekonk’s or School’s) last agreed-upon IEP which expired in June 2004 was not reasonably calculated to provide Student with FAPE because it did not provide for a residential program. The automatic hearing date was June 21, 2004.
On June 9, 2004 the school filed a request to postpone the automatic date together with requests for production of documents and interrogatories. Parents assented to this request. The hearing officer conducted a telephone conference with the parties’ representatives on June 25, 2004. A pre-hearing conference took place on August 3, 2004. Pursuant to the conference, the Hearing Officer issued an order directing the School to conduct a functional behavioral assessment of the Student. The order also established a deadline of September 1, 2004 for filing motions to join the Departments of Mental Retardation (DMR) and/or Social Services (DSS) if either or both parties intended to do so, and scheduled a hearing on the merits for September 29, September 30 and October 1, 2004.
On August 27, 2004, Seekonk filed motions to join both DMR and DSS as parties. Parents neither joined in these motions nor opposed them. DMR and DSS filed timely objections on, respectively, September 1 and 7, 2004. A telephonic hearing on these Motions was held on September 28, 2004. On that date, pursuant to an agreement of the parties and potential parties, the hearing was postponed to October 25, 26, and 29, 2004. Both motions were denied, without prejudice, in an order dated October 15, 2004.
A hearing on the merits was held on October 25, 26, and 29, 2004 at the office of the BSEA in Malden, MA. Parents were represented by an advocate and the school was represented by counsel. Each party presented documentary evidence and examined and cross-examined witnesses.
Those present for all or part of the proceeding were:
Student’s father
Student’s mother
Student’s grandmother
Student’s grandfather
Julia Michaud Special Education Director, Seekonk Public Schools
Susan Griffin Service Coordinator, Dept. of Mental Retardation (DMR)
Suzanne Meyer Teacher, Groden Center, Providence, RI
Carol Neiderer Speech pathologist, Groden Center
Robin Ringer Social Worker, Groden Center
Mary Pendergast Clinical Supervisor, Groden Center
Stacey Considine Supervisor of home-based ABA therapists, Horace Mann Educational Associates
Angelina Hosford Social worker, Dept. of Social Services (DSS)
Dianne Curran, Esq. Attorney for DSS1
Robert Augustine Advocate for Parents
Roseann DiPietro, Esq. Attorney for Seekonk Public Schools.
The official record of the hearing consists of Joint Exhibits 1 through 41, and approximately 8 hours of tape-recorded oral testimony and argument. The Parents waived closing argument. The School submitted its closing argument on November 15, 2004 and the record closed on that day. On December 3, 2004, pursuant to a request of the parties, the Hearing Officer issued an Order containing conclusions but no detailed findings of fact or rulings of law. This Order is attached to and incorporated by reference into this Decision.
ISSUES PRESENTED
T he issue presented for hearing is whether Student needs a residential educational placement in order to receive a free, appropriate public education (FAPE) .
POSITION OF PARENTS
Student needs an intensive, 24-hour, seven-day, full year residential program to address severe behavior problems and skill deficits associated with her autism spectrum disorder. Parents are satisfied with the services that Student receives in her day placement. However, education for Student must focus on life skills and so must be carried out in her living situation as well as in school. Student requires more structure and supervision than Parents are able to provide within the home. Parents are overwhelmed with Student’s care, and can neither keep her safe nor provide the carryover that Student needs after the school day in order to make meaningful progress.
POSITION OF SEEKONK PUBLIC SCHOOLS
Seekonk’s program is appropriate and meets Student’s needs. At all relevant times, Student has been served under fully accepted IEPs in an agreed-upon private day placement, supplemented with a Saturday program and home-based ABA services, and has made meaningful, documented progress towards all of her IEP goals.
Parents’ request for residential placement is not based on Student’s educational needs, as Student has been making meaningful progress with the services she has been receiving. Rather, Parents’ request is based on their being overwhelmed with the task of parenting Student. Therefore, if Student needs a placement outside of her home, it is the responsibility of another social service agency to provide such placement. However, the record shows that despite their concerns about Student’s safety in the home and their ability to care for her, Parents have, in fact, been keeping her safe and caring for her appropriately.
FINDINGS OF FACT
1. Student is a seven-year-old child who lives with her parents in Seekonk. (Parents, Ex. 11) Student enjoys physical activities such as jumping on a trampoline and swinging, as well as listening to music, and watching Barney videos. (Mother, Ex. 18)
2. At age 1, Student was diagnosed with pervasive development disorder (PDD) As a result of her disability, Student has major delays or deficits in virtually all areas, including expressive and receptive language, cognition, socialization, sensory integration, and fine-motor skills. (Ex. 25, 27) Student’s skill levels as assessed on the Vineland in April 2004, when Student was aged 6 years 9 months, are as follows:
· Communication: receptive—13 months; expressive—8 months. Student understands “no,” “shh” and about 10 words, follows simple one-step directions (“stand” or “sit”), smiles spontaneously, vicalizes, gestures “no,” “yes,” and “I want” and can indicate preference when given a choice.
· Daily living: 20 to 21 months. Student can remove some clothing, cooperate in dressing and washing, self-feed. She is not toilet trained, but is learning some toileting skills.
· Socialization: 2 to 10 months. Student can respond to a caregiver’s voice, express sadness, pleasure, or anger; smile or vocalize to make social contact, show affection to familiar people, and imitate simple gestures such as waving or clapping.
(Ex. 27, Mother, Father)
3. Student has behavioral problems associated with her disability, including self-stimulating behavior or “stimming,” removing her clothing, tearing paper, bolting/wandering, inappropriate climbing, mouthing inedible objects, urinating/defecating on the floor, self-injurious behavior (biting herself), and aggression to others. (Mother, Father, Considine, Ex. 20, 24, 40) These behaviors worsen when Student is not actively engaged in a highly structured activity. (Considine, Ex. 24, 40) Student must be supervised at all times to ensure her safety. (Mother, Father, Ex. 11, 24)
4. On the other hand, Student responds well to a highly structured environment. (Considine, Meyer, Ex. 18, 40)
5. Student received Early Intervention (EI) services from ages one to three. (Ex. 24) The record does not indicate the services provided or Student’s response. In July 2000, when she turned three years old, Student was enrolled in an early childhood program located at the Palmer River School in Rehoboth and operated by the Southeast Educational Collaborative. Services included placement in a substantially separate structured classroom along with individual speech/language therapy, occupational therapy and group adapted physical education. (Ex. 5, 6, 11, 12).
6. Between approximately November 2001 and January 2002, when Student was approximately 4.4 years old, the Collaborative conducted a three-year re-evaluation. The speech-language assessment showed that receptively, Student followed some simple one-step directions, inconsistently responded to her name, understood “no” combined with a stern voice, usually looked at objects presented to her, could inconsistently choose between two objects, and was able to protest and request objects. Expressively, Student communicated through natural gestures, sign approximations, physically manipulating another’s hand, verbalizations (inconsistently repeating words in songs sung slowly; 14 sounds, some consonant-vowel combinations) vocalizations, facial expression, and body language. Her eye contact was inconsistent. (Ex. 5)
7. The educational assessment showed that Student’s areas of strength were gross motor and beginning self-help skills. As of approximately November 2001, Student’s functioning was as follows:
· Social-Emotional Skills: Made eye contact during highly preferred activities, attempted to imitate hand motions accompanying a story or song, increased ability to tolerate non-preferred structured activity; signed “me” with prompting; when frustrated or challenged, turned head/body away and sometimes bit the adult, pushed objects away but avoidance had decreased; used gestural and pictorial cues for transitions; maximum support including hand-over-hand assistance to keep Student seated and involved in activities. Did not show interest in peers, played alone, some increase in manipulating toys.
· Self-Help Skills: Could utilize verbal, pictorial and gestural cues to follow simple class routine, needed maximum assistance to care for belongings, could dress/undress with minimal verbal and gestrual cues; was being toilet trained, brush teeth with hand-over-hand help; wash face with maximum gestural cues; could eat with fork and spoon, drink from cup with minimal cues.
· Cognition: Student increasingly enjoyed touching sensory materials, used hand-over-hand instruction for cutting, etc.; could independently or with cues perform tasks such as placing rings on a post, scribble, or use a shape sorter, could listen to books on tape or a story from an adult, choose a song from field of two, choose between “eat” and “drink” Mayer Johnson pictures and sign “more” and “all done” at snack/lunch with gestural and verbal cueing. Student was showing increased awareness of communication via looking at or going to a desired object. She had some single words and “continues to demonstrate a wide range of emerging communication skills.”
(Ex. 4)
8. The OT evaluation consisted of clinical and classroom observation, because Student refused to participate in standardized evaluation activities. The OT evaluator reported that Student’s behavior and willingness to participate in her 3x/week OT sessions fluctuated from session to session and within sessions. During treatment sessions, Student would participate for a short time, then indicate refusal by throwing herself on the floor, crying and closing her eyes. Student had fine motor, language, visual motor, attentional, and sensory difficulties. The OT observed that Student had little interest in playing with toys in the classroom, refused most fine motor or table top activities, and confirmed that she needed maximal support for classroom and self-help activities. (Ex. 8)
9. In June 2002, when Student was nearly 5 years old, Parents obtained a developmental observation from Sheldon H. Wagner, Ph.D., Director of Behavioral Development and Educational Services, LLC. Dr. Wagner found that based on responses to the Vineland and his clinical observation, Student’s age equivalence in the communication, daily living skills and socialization domains were, respectively, 11 months, 19 months, and 4 months. (Ex. 11) Dr. Wagner did not observe any of the communication skills that school personnel had reported (using consonants, signing, picture selection). (Id.) Dr. Wagner recommended a “very intensive and individualized instructional program” within a “full-year, full day (i.e., at least 30 hours per week) intensive language-based program driven by the principles of applied behavioral analysis. This should probably take the form of several hours a day of discrete-trials instruction as well as “request training” in natural environments…[as well as] alternative and augmentative communication systems such as signing.” (Ex. 10)
10. Dr. Wagner further recommended “that a proportion of [Student’s] instruction be carried out in her home environment, so as to maximize the value of communication to [Student].” (Ex. 10)
11. In late 2002, the TEAM determined that Student needed a more specialized and intensive program than her placement at the Collaborative to address communication, independent living skills, and behavior. The TEAM referred Student to Groden Center, Inc., in Providence, RI. The Groden Center operates several programs for children with developmental disabilities, including a private, Chapter 766-approved day school that serves children with severe/profound disabilities. Student entered this day school on December 9, 2002, and remains in that placement to date. (Mother, Father, Michaud, Ex. 11, 22)
12. According to the Groden Center’s “Description of Services,” its educational program “is deeply rooted in commonly accepted behavioral procedures developed under the rubric of behavior therapy and applied behavioral analysis.” Approaches used include positive reinforcement, relaxation therapy, imagery-based procedures, cognitive training, and social skills training, and the emphasis of the curriculum is development of self-control skills as well as communication, social, self-help, domestic, pre-academic, OT, physical education, and leisure skills. (Ex. 11, 12)
13. The Groden Center placed Student in its “Elementary 1” classroom which comprised a total of six children ranging from 7 to 9 years of age and was staffed by one special education coordinator and 4 full-time treatment teachers. A clinical director, clinical unit supervisor, speech/language pathologist, social worker, and consultants in OT, behavioral psychology and psychiatry also provide services to the program. (Ex. 11) Student has remained in this classroom up to the hearing date, with the same teacher, Suzanne Meyer. (Meyer)
14. The Groden Center conducted its own intake evaluation of Student over the six-week period after her placement in December 20 2003. This evaluation consisted of behavioral analysis and assessment as well as educational, OT, and speech/language assessments. The behavioral analysis showed that Student was socially aloof, enjoyed freedom of movement, and resisted formal instruction and self-stimulatory activity. She avoided non-preferred tasks by turning away, attempting to bite, dropping materials or trying to leave the area. She learned best in short, repeated sessions, and “responded slowly to instruction in discrete trial format using edible reinforcers.” Student attempted to imitate motor movements or respond to requests with prompts, communicated with some gestures and sounds, and frequently used inappropriate behavior (dropping to floor, throwing objects) to communicate. She could use a communication picture to request “drink” or “eat.” (Ex. 11)
15. The initial Groden Center evaluation noted that “a very high level of supervision is required to keep Student safe.” Targeted behaviors included self-injurious behavior (self-biting), disruptive behavior (screaming, throwing objects, biting objects, dropping to the floor), inappropriate climbing, and aggression (hitting, kicking, slapping, biting). (Ex. 11).
16. The Groden intake evaluation recommended instructional programs in an object schedule, relaxation response, picture rehearsal, and communication; a reinforcement schedule and strategies for dealing with undesirable behavior (redirection, provision of alternatives, physical intervention where necessary). (Ex. 11)
17. The record does not contain a copy of an IEP or amendment written immediately after the intake evaluation was completed, but does contain an IEP drafted in June 2003 for the 2002-04 school year that provides for specialized instruction in social-emotional, cognitive, social language, pre-academic, and daily living skills, and contains detailed goals and objectives for identified areas of need including communication, play skills, reduction of maladaptive behavior, and ADLs. The Parents accepted this IEP in full. (Ex. 13.)
18. The current IEP (dated June – November 2004) (Ex. 22) essentially continues the services provided under the prior IEP, with upward revisions to objectives as needed to reflect Student’s progress. Parents have accepted this IEP but rejected the placement. (Ex. 22, Meyer)
19. The Groden Center program also includes a Saturday community experience component. Student spends about 5 hours every Saturday with her teacher, Suzanne Meyer, going to stores, restaurants, parks, etc. for the purpose of generalizing skills to other settings. (Meyer, Mother, Ex. 22) Parents may participate in the Saturday outings, but have not done so. (Meyer, Mother)
20. Student’s IEP contains objectives for Student’s skills in the home, which include increased independence in toileting and dressing, use of a daily schedule and pictures to request an object, and learning new leisure activities. The IEP states that progress in these areas is to be monitored by parental report and home visits by Student’s teacher and Robin Ringer, who is the Groden Center Associate Director of Family Services. (Ringer) Ms. Ringer has visited the home many times, has discussed with Parents their concerns about Student’s behavior and management in the home, has provided suggestions, and has referred Parents to training programs and support groups for parents of children with autism. (Ringer)
21. In addition to the Groden placement, Seekonk funds 6 hours per week of home-based ABA therapy and 1.5 hours per week of clinical supervision and case management all provided by Horace Mann Educational Associates (HMEA). (Considine, Michaud, Ex. 18, 40) The ABA therapy, which started in April 2004, originally focused on communication and play skills. Student would leave the area or drop to the floor during the sessions, so the programs were changed to ADLS and communication skills such as toilet training, handwashing, toothbrushing, dressing, toy play, signs, and use of PECS. The ADL goals were identified as priorities by the Parents. (Considine, Ex. 40)
22. Parents and Student have been receiving services from the Department of Mental Retardation (DMR) since 2000. At various times, these services have included case management, a parent aide, and referral to other community services, as well as funds for home safety devices and modifications, respite care, educational supplies and community recreational outings. (Griffin; Ex. 16, 33-39)
23. Additionally, Student receives approximately 15-23 hours per week of personal care attendant (PCA) services (depending on availability of PCAs) funded by Mass. Health and coordinated by the Bristol County ARC. (Mother)
24. On a typical day, Student’s school bus picks her up at about 8:10 AM. Student is in school from approximately 8:30 AM to 2:15 PM, and arrives home at approximately 3:10 to 3:30 PM. (Mother) Three2 afternoons per week, Student’s ABA therapist arrives at the home at approximately 3:30 PM and spends about 1.5 hours working with Student and consulting with Mother. In addition, on two or three days per week, one of Student’s PCA’s (who are her aunt and cousin) come after the ABA session has ended and spend 4 hours helping Parents feed, bathe, and put Student to bed. The PCA may also babysit if Parents need to shop or do errands. (Mother, Father, Considine)
25. Parents and Seekonk agree that Student has made progress in the classroom and Groden Center program. Specific areas of improvement include eye contact and imitation; visually attending to pictures during cognitive picture rehearsal training; communication (protesting, requesting items via PECS, responding to greetings with maximum assistance); participating in morning, snack and bathroom routines with decreased prompting; matching objects; playing with cause/effect toys alone; coming when called and stopping on request. (Ex. 17; Michaud, Meyer) According to Seekonk Special Education Director Julia Michaud, Student is a “different child” from when she first transferred to Groden from her Collaborative placement. During a visit to the Groden Center about one month before this hearing, Ms. Michaud observed Student to be more compliant and engaged in learning than she had been when she first entered the program or when she had been at the Collaborative. (Michaud)
26. When Student first entered the Groden Center she was unapproachable, avoided contact with others, and would walk away or scream and drop to the floor if approached. Now, Student can follow a daily routine with little prompting, approaches her teachers frequently, makes some eye contact with others (as opposed to no eye contact) and is calmer and happier. (Meyer)
27. Approximately 1 ¾ to 2 hours of Student’s school day at the Groden Center are spent in communication activities. Student has made slow, steady, meaningful progress with communication. When she entered Groden, Student showed no desire to interact with others; now she “wants to be seen.” (Neidermeier) Student has been exposed to all communication modalities, including speech, sign, and pictures. Currently, she responds best to object representations of things and activities (as opposed to pictures). Student is now able to choose one object over another and also to follow a schedule consisting of objects representing the various activities. This is a first step for symbolic language for Student. (Neidermeier)
28. Student’s behavior in school has improved since her placement. As of June 2004, Student had reached or exceeded her goals for reduction of targeted behaviors, although the behaviors had not been eliminated. (Ex. 17) Student’s speech/language therapist attributes much of this improvement to Student’s increased ability to communicate. (Niederer)
29. Student also has made progress in the Saturday program. She has been able to generalize many skills learned in school to settings such as restaurants, without behavioral incidents. (Meyer)
30. Student has made some progress in her home-based ABA programs, but engages in problematic behavior whenever she is not actively engaged in therapy. In a report dated July 29, 2004, Stacey Considine, who oversees Student’s ABA therapists, noted that while Student participated in a 20-minute interval toileting routine, she often stripped her clothes and /or urinated on the floor if left unattended for any length of time. (Ex. 40, Considine) Ms. Considine believes Student might benefit from additional ABA services, but that scheduling would have to be adjusted (e.g., by providing the additional service during the school day) as Student would be too tired to benefit from more than the current 1.5 hours of ABA after school. (Considine) Ms. Considine also believes that additional communication between the ABA service and the Groden Center would be helpful. (Considine) According to Stacey Considine, Mother has attempted to carry over ABA strategies, but has not been able to do so in a consistent manner. (Considine)
31. Student has made progress at home in identified areas of need. At least in the context of her ABA therapy, Student is able to use the toilet if placed there at 15 or 20-minute intervals and complete, with prompts, steps in washing and dressing routines. (Ex. 17, Considine, Ex. 40) With Mother, she has increased her ability to cooperate with bathing and dressing, is somewhat more compliant, and is better able to indicate choices, and to communicate her wants and needs. (Mother)
32. Overall, Student’s progress has been slow and incremental, but professionals working with her find her progress to be consistent with her cognitive and emotional skills. (Considine, Meyer, Michaud, Ex. 25)
33. In September 2004, in conjunction with this proceeding, Student underwent an updated functional behavioral assessment by Stephen C. Imber, Ph.D. Dr. Imber reviewed records, interviewed Groden Center staff and family members and observed Student at home and at school. Dr. Imber concluded that Student was making steady, if slow, progress in school that was significant in light of Student’s cognitive and emotional level. He observed that when Student is engaged in a highly structured situation with frequent reinforcement, she can maintain attention and complete various tasks. While she still shows some behavior that might injure her or others, in school, she has made much progress in this area. (Ex. 25)
34. Dr. Imber further observed that at home, Student is capable of independent behavior such as sitting in a hammock or swinging. He also found that Parents were frustrated by Student’s behavior, felt they could not get her to comply, had trouble communicating with her, and felt they could not supervise her adequately. Dr. Imber recommended additional ABA services, parental participation in the Saturday community activities, more involvement of the Parents in the ABA therapy. Dr. Imber’s opinion is that Parents’ concern about their ability to supervise Student appropriately “are quite valid.” (Ex. 25)
35. With the support of the various agencies, and of extended family members, Parents have done and do a great deal of work to care for Student and keep her safe. With help from DMR, Parents have made modifications to their home to protect Student (Ex. 35). They have sought and utilized support from Seekonk, the Groden Center, DMR, Mass. Health, and extended family. (Parents, Michaud, Ring, Meyer, Griffin, Ex. 31, 33-36, 38) Parents have attended meetings, cooperated with evaluations, and maintained close contact with the various agencies involved with Student. (Parents, Michaud, Ring, Meyer, Griffin, Considine; Ex. 31) Even with the support they receive, however, and even though Mother feels Student has made some progress, Parents still find the demands of caring for Student at home to be difficult and overwhelming because of her behavior and need for constant supervision. (Parents, Hosford, Ex. 25, 29, 31) When Student comes home from school, she runs all over, cannot stay still, and climbs on the furniture. (Mother) On one occasion, on the bus, she removed her diaper. One night, she left the house without Parents’ knowledge. Another time, she ran out of the house nude when Mother went to answer the phone. In spring 2004, Student left a family Easter gathering and jumped into a pond. Student bites Parents. Student recently bit into an electrical cord. She still is not toilet trained, has urinated on the floor and smeared feces. She does not like clothing and often strips. She does not feed herself independently. (Mother, Father) Parents, especially Mother, try to carry over the skills taught in ABA but believe that they are not successful. (Mother) School personnel feel that Mother attempts to carry over Student’s school and ABA programs in the home, but cannot do so consistently. (Ring, Considine) Mother is finding Student’s care increasingly difficult as Student gets taller and heavier. (Mother) The stress of parenting Student has affected Parents’ marriage. (Mother)
36. Other professionals from the Student’s TEAM agree that Parents are caring and make their best efforts to support Student and provide carryover, but are overwhelmed and exhausted. (Hosford, Ring) Some TEAM members believe that placement outside the home would be appropriate for this reason. (Ring,) Those TEAM members believe, however, that Student should be in a specialized foster home rather than a residential school, which they view as overly restrictive, especially at Student’s young age. (Ring, Hosford) Parents have presented no evaluations or witness testimony recommending residential school, and have not identified a particular placement.
37. In addition to seeking residential educational placement from Seekonk, Parents have made several attempts to have Student placed outside of the home, (Mother, Father, Hosford) In February 2004, Parents applied to DSS for voluntary placement of Student in specialized foster care. DSS found the family ineligible for DSS services on the grounds that Student was already receiving services from other agencies. (Ex. 31)
38. On August 9, 2004, Parents’ advocate, Robert Augustine made a second attempt to secure such services by writing identical letters to DSS and DMR that state:
[Parents] have informed me that they are not capable of caring for or supporting [Student] at home. The parents are requesting the [DSS, DMR] to fund a residential placement which would be a 24 hour seven day a week program in order for [Student] to make effective progress and maximize her potential. The parents feel this is [Student’s] Least Restrictive Environment at this time.
(Ex. 23, 24)
39. In September 2004, Parents again applied to DSS for voluntary services in the form of an out-of home placement. (Hosford, Ex. 29) As of the hearing date, DSS was still considering Parents application; however, the DSS social worker who assessed the family’s needs, Angelina Hosford, recommended a finding of eligibility for DSS services including voluntary placement in a specialized foster home. Ms. Hosford’s recommendation is based on the Parents’ exhaustion with caring for Student and coping with her disability-related behaviors and delays. (Hosford)
FINDINGS AND CONCLUSIONS
Based on the evidence presented at the hearing, as well as the applicable law, I conclude that Seekonk’s IEP and services are reasonably calculated to provide Student with a free, appropriate public education, if modified to increase coordination between services provided at school and in the home.
Specifically, the School has shown by a preponderance of evidence that Student is making meaningful progress in light of her individual needs and capabilities, both at home and in school, and may make even more progress with adjusted home-school coordination.
On the other hand, Parents have not proved by a preponderance of the evidence that Student needs a residential educational placement to receive FAPE at this time. While the record contains evidence that an out-of-home placement might benefit Student and her family, such a placement is not required for educational reasons. My reasoning follows.
Legal Framework
The FAPE Standard
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law.
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with an properly developed IEP. 20 USC Sec. 1401; 34 CFR Sec. 300.13. The corresponding state statute defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1.
In general, FAPE encompasses substantive appropriateness, placement in the least restrictive environment (LRE) consistent with providing an appropriate program, and conformity with the IDEA’s procedural requirements.3 Substantively, Federal courts have interpreted FAPE to mean an IEP and services that provide “significant learning” and confer “meaningful benefit” on the student via “personalized instruction with sufficient support services to permit the child to benefit educationally.” Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984). The IEP must be tailored to the unique needs of the disabled child, and must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991) and Burlington , 736 F.2d at 788. Some federal courts have held that “effective results” and “demonstrable improvement” should be measured in light of the student’s individual potential. See , e.g ., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000). On the other hand, the IDEA does not require districts to maximize a student’s potential, but rather to assure access to a public education and the opportunity for meaningful educational benefit. Lenn , 998 F.3d at 1091; G.D. v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
In Massachusetts, the Department of Education (DOE) has issued a memorandum analyzing the effect of the Commonwealth’s adoption of the federal FAPE standard. See Massachusetts DOE Administrative Advisory SPED 2002-1: Guidance on the change…from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (November 20, 2001) (“DOE Advisory” ) In this memorandum, DOE has commented that “court decisions make clear that FAPE is not a minimal or trivial standard.” Id . Moreover, according to DOE, one of the Legislature’s intentions in amending Chapter 766, in addition to adopting the federal FAPE standard, was to bring students with disabilities within the scope of the Massachusetts Education Reform Act, which “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential. Improving educational outcomes for students with disabilities is a goal of the state and federal special education laws, and improving educational outcomes for all students, including students with disabilities, is central to education reform” Id .
Finally, under both federal and state law, FAPE requires schools to educate eligible students in the least restrictive environment (LRE) consistent with meeting their educational needs; that is, together with, rather than segregated from, children without disabilities. 20 U.S.C. 1412(5)(A); Roland M ., supra. The law requires that students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting. Id.
Residential Placement
School districts are required to provide residential educational placements when the nature or severity of a child’s unique needs requires such placement in order to ensure FAPE, i.e., in order to enable the child to receive meaningful educational benefit from special education and related services. 20 USC Sec. 1412(a)(5); 34 CFR 300.550(b). Put another way, an eligible student may be entitled to residential educational placement if a 24-hour setting is necessary for the child to be able to achieve the goals and objectives of his/her IEP. Abrahamson v. Hershman , 553 IDELR 515 (D. Mass. 1982). Depending on the unique needs of the child, those goals may not be solely academic but also may be social, behavioral or emotional. Moreover, also depending on the needs of the child, “education” may not be confined to the classroom but also may include generalization of skills to the classroom and community. See, e.g., David D. v. Dartmouth School Committee , 615 F. Supp. 639, 647 (D. Mass. 1984); aff’d., 775 F. 2d 411 (1 st Cir., 1985); Mohawk Trail Regional School District v. Shaun D ., 29 IDELR 885 (D. Mass. 1999); Milford School District v. Claire F ., 129 F.3d 1252 (1997); Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (2001). Thus, successful progress in the classroom alone may not entail FAPE for a child if he/she cannot generalize skills to the home and community, and he or she may need a residential placement if he or she needs the IEP to be implemented during all waking hours, across all settings. Mohawk Trail , supra.
On the other hand, not every child with severe or pervasive needs who needs to learn to generalize skills requires a residential placement to do so. Schools may attempt to teach students to generalize skills by means of extended school day and school year programs, community experiences, and home programming. Gonzalez , supr a. The law requires that if a student can make meaningful progress with these less restrictive services, he or she is not entitled to a residential placement. Rome School Committee v . Mrs. B., 247 F.3d 29 (1 st Cir. 2001).
Here, there is no dispute that Student’s learning needs extend beyond the classroom into the community and home settings. Student’s disability has a global effect on her functioning, and she is not able to generalize skills without consistent reinforcement and practice outside of the regular school day. For example, Student needs to practice hygiene and self care within the natural setting of her home. She needs to practice community skills in the community. She needs help with her behavior and communication in every setting. The record shows, however, that her current program, if modified as will be discussed below, provides her with appropriate opportunities and support to practice and generalize skills.
Appropriateness of Seekonk’s program
The parties agree, and the record shows, that Student’s educational program should address all areas of need, in particular, language and communication, social and play skills, daily living skills, behavioral self-control, and sensory integration issues. In 2002 the evaluator retained by the Parents, Dr. Sheldon Wagner, concluded that Student’s program needed to be intensive, language-based, full-day, and full-year; needed to be based on ABA principles; and needed to include alternative communication, discrete trial training, “requesting” programs, and a home component. (Finding #10)
The record also shows that Student’s current IEP and placement at the Groden Center, together with the home-based ABA services provided by HMEA, provide all of the services that Dr. Wagner recommended in 20024 and that the parties agree are still appropriate. Specifically, the IEP contains detailed goals and objectives calling for measurable outcomes in all of Student’s areas of need, including communication, behavior, social/emotional development, and pre-academic, play, and daily living skills. The Groden Center placement is implementing those goals and objectives with a highly structured, intensive, full-day, full-year program that focuses on communication, uses alternative forms of communication such as signs, object and picture exchange systems, and uses ABA principles. Outside of school hours, Student receives 15 hours of home-based ABA therapy that includes discrete trial training, home-school communication, home visits from Ms. Ring, and an individualized Saturday community experience program. The home-and community-based services are intended to help Student learn to generalize skills.
While the Parents have accepted Student’s goals, objectives and services since she was placed at Groden, they rejected the most recent placement decision because they believe Student needs a residential setting. Whether Student needs such a setting to receive FAPE depends on whether she is making meaningful progress in her current, less restrictive placement. In this case, the evidence shows that Student is, in fact making such progress. Seekonk has produced objective documentation that Student has achieved or made progress in virtually all of her IEP goals since being placed at the Groden Center. The Parents do not dispute this evidence.
What is in dispute is whether Student has made such progress outside of school. The evidence shows that Student has made significant gains at home and in the community, even though her progress has been extremely slow, and may seem imperceptible at times to Parents. Mother has observed that Student is more compliant than she has been, can make some choices, and can cooperate somewhat more with bathing and dressing, and can communicate somewhat better with Mother. Father testified that Student’s ability to follow directions has improved somewhat.
Student’s ability to function in the community also has improved. She has been able to accompany her teacher to the park, restaurants, etc. for up to five hours at a time without behavioral incidents occurring. This progress has been deemed significant in light of Student’s severe cognitive, emotional and communicative limitations. (See Findings No. 29, 31)
On the other hand, Student has not achieved some of her ABA goals, and seems to be having trouble generalizing the skills taught in ABA within the home. Parents continue to find that Student is very difficult to manage. In this case, Student’s continued challenging behavior at home does not translate into a need for residential placement, but does warrant the far less restrictive intervention of increasing coordination between the school component and the home component, particularly the ABA services. As of the hearing date, the school and HMEA had conferred only once or twice. Ms. Considine and Ms. Meyer testified that Student (and, therefore, Parents) would benefit from increased communication and coordination between the Groden Center and the HMEA providers. Their testimony is persuasive in light of the complexity of Student’s needs, the amount of data kept on Student’s progress, and the number of different persons who work with Student.
Because I find that the School’s program and services are appropriate, I need not review the merits of residential school placement for Student. I note, however, that Parents have presented no evaluation reports or testimony supporting such a placement, and have not designated a particular program or programs that they feel might be appropriate for Student.
The evidence is clear that Parents feel they cannot care for Student at home at this time. They are exhausted from the physical and emotional demands of her care and supervision. They worry about their ability to keep her safe. They have difficulty carrying over some of the strategies used in school and in ABA sessions. Their concerns are legitimate, heartfelt, and understandable, but do not entitle them to a residential educational placement for Student. Under the IDEA and Chapter 766, residential educational placements must be provided to meet the educational needs of the child, not to meet the need of parents for relief from the child’s day-to-day care. Here, as discussed above, Student has been making progress with her current program, is likely to more progress with increased coordination between her home-based and school-based services, and thus is not entitled to residential educational placement from Seekonk at this time. In the future, as Student matures and her needs change, she may come to require such a placement, but only if she cannot be educated effectively in a less restrictive environment.
It is not within the scope of this proceeding to determine whether or not Student should be placed out of the home for non-educational reasons. Rather, this determination must be made by other agencies (such as DSS) in conjunction with the Parents. In fact, as of the date of hearing, Student’s DSS assessment worker was planning to recommend a therapeutic foster home, located and funded by DSS, to address the Student’s and family’s non-educational, caregiving needs.
Finally, it is obvious from the testimony and demeanor of the Parents, as well as the testimony of other witnesses and the documentary record that Parents care deeply for their daughter, are concerned for her welfare and progress, and put much effort into caring for her directly and in seeking outside help for her from various agencies. It also is obvious that the decision to consider out-of-home placement for Student is a painful and difficult one for Parents. By concluding that such a placement is not necessary for educational reasons I in no way discount the sincerity of Parents’ concerns.
CONCLUSION AND ORDER
As stated above, my conclusion and order of December 3, 2004 are incorporated by reference in, and attached to this Decision.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Atty. Curran accompanied the DSS worker, but did not enter an appearance for DSS, which is not a party in this matter.
2
As of the hearing date Student’s home-based ABA services had been reduced from four to three days per week. (Mother)
3
The IDEA’s procedural requirements, among other things, are designed to ensure that IEPs are written by duly constituted TEAMs, with meaningful parental participation, and that services are delivered in a timely manner. Roland M. , 910 F.2d at 994 (citations omitted); Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). The Parents do not allege any procedural errors in this matter.
4
Neither party argues that Student’s needs have changed significantly since Dr. Wagner’s evaluation.