Student and Quincy Public Schools – BSEA #03-4007



<br /> Student and Quincy Public Schools – BSEA #03-4007<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: [Student] and Quincy Public Schools

BSEA #03-4007

RULING ON MOTION FOR INTERIM SERVICES

Background

On April 16, 2003, Parents filed a hearing request with the BSEA alleging that the Quincy Public Schools’ IEP for 4/3/03 to 4/4/04 is not reasonably calculated to provide Student with FAPE. Parents allege numerous substantive deficiencies in the IEP and services, as well as procedural violations.

On May 1, 2003, Parents filed a Motion for Immediate Interim Services, seeking an order directing the Quincy Public Schools to (a) provide Student with 14.5 hours per week of Applied Behavioral Analysis (ABA) therapy and (b) contract with Caren Steinberg, a licensed speech/language pathologist, to continue monthly consultation/assessment speech language services. Parents allege that Student will be irreparably harmed unless the services requested in the motion are provided on an interim basis until this proceeding is completed or until Student’s steroid therapy is terminated, whichever event occurs sooner. Quincy filed an opposition to Parents’ motion, asserting that the motion is tantamount to a request for a decision on the merits without an evidentiary hearing, and that granting such an order would deny due process to Quincy.

An evidentiary hearing on the Motion was held on June 5 and June 11, 2003 at which both parties presented documentary evidence and examined and cross-examined witnesses. Both the documentary exhibits and tape-recorded witness testimony are subsumed into the record of the hearing on the merits, which began on June 5, 2003 and concluded on June 11, 2003.

At this juncture, as discussed with and assented to by the parties, I will not make findings of fact, reserving these for a full decision on the merits.

The Parents’ motion is granted in part, with modifications, and denied in part, as discussed below.

ABA Therapy

The Parents’ request for an interim order for ABA therapy is granted, as modified, in that I decline to prescribe the number of hours to be provided; rather, I defer to the relevant professionals to do so, as explained below.

Based on the testimony and documentary evidence submitted, I conclude that the Parents have shown, by a preponderance of evidence, that Student will be irreparably harmed unless he receives a significant amount of one-to-one behavioral therapy provided by a qualified ABA therapist. Such therapy should continue until Student finishes steroid treatment or until a full decision on the merits, whichever is earlier.

I do not reach any conclusion as to a precise number of hours of therapy. Rather, I conclude that the amount of one-to-one behavioral therapy to be provided, as well as the frequency of speech/language progress assessment, should be based on current recommendations of Dr. Duffy and Dr. Avery as well as of Student’s current private ABA providers and behavioral specialist from the Quincy Public Schools.

Monitoring by Speech/Language Therapist

The Parents’ request to have Student’s progress monitored by Ms. Caren Steinberg is denied. I am persuaded that Student’s protocol requires that his progress be monitored by an objective speech/language therapist during the period referred to above. I am not persuaded, however, that Caren Steinberg must be designated for this purpose in order to avoid irreparable harm, so long as the therapist is appropriately credentialed and qualified, is disinterested (i.e., has no affiliation with Student’s medical treaters and does not provide services to Student), and receives sufficient transition information from Ms. Steinberg.

Discussion

In reaching the conclusion that interim services are warranted, I note that this case involves a highly unusual set of circumstances that are unlikely to recur frequently. In the majority of special education cases before the BSEA, hearing officers do not order interim services. First, there is a risk of prejudice to the non-moving party if such an order is entered prior to a full hearing on the merits. Moreover, in most cases, both prospective and compensatory services are appropriate remedies for any past denials of FAPE to a student who prevails on the merits.

Here, however, the evidence reveals that any window of opportunity for language acquisition that may be opened by steroid treatment necessarily will be closed when the treatment ends, and any harm from denial of ABA services during that period will not likely be remedied by prospective or compensatory relief if the Student prevails on the merits.

Additionally, potential prejudice to Quincy is limited to a few months at most by the terms of the order for interim relief. Specifically, the hearing on the merits is complete, the record will close during the week of June 16, 2003, and a decision is due 25 days thereafter. Moreover, witness testimony indicates that Student is being weaned off steroids, and may well be finished with treatment in three or four months.

ORDER

1. The Quincy Public Schools shall immediately provide or contract to provide Student with one-to-one behavioral therapy, delivered by a duly qualified and credentialed ABA therapist or therapists. To determine the frequency and duration of such therapy, Quincy shall immediately seek and follow the recommendations of Frank Duffy, M.D. and Dr. Lauren Murphy Avery of Boston Children’s Hospital, as well as Student’s current private ABA providers and Student’s current behavioral specialist from the Quincy Public Schools.

2. In conjunction with (1), above, Quincy shall provide the services of a qualified speech/language therapist to monitor Student’s progress during the term of this Order. Quincy may contract with Ms. Caren Steinberg, or may use the services of any other speech/language pathologist who is appropriately qualified and disinterested, as described above.

3. This Order shall terminate upon completion of Student’s steroid therapy or issuance of a full decision on the merits, whichever is sooner. No stay-put rights attach to this Order.

By the Hearing Officer

________________________

June 16, 2003


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