COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Xylon & Brockton Public Schools1
BSEA #09-2740C
DECISION
This Decision is issued pursuant to M.G.L.c. 71B and c.30A, 20 U.S.C. 1401 et . seq. , 29 U.S.C. § 794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on July 7, 2010 at the Department of Elementary and Secondary Education in Malden, MA. Those present for all or part of the proceeding were:
Ms. X Parent
Karen Earley Consultant
Joseph Marchisio Out of District Coordinator, Brockton Public Schools
Kay Seale Director of Special Education, Brockton Public Schools
Mary Jo Reedy Attorney for Brockton Public Schools
Lindsay Byrne Hearing officer
The official record of the hearing consists of exhibits submitted by the Parent marked P-1 through P-7, exhibits submitted by the School marked S-1 through S-9; and approximately 3 hours of recorded testimony and argument. The Parent appeared pro se . The School was represented by an attorney. Both parties made oral closing arguments at the hearing and the record closed on July 7, 2010.
SUMMARY OF THE EVIDENCE
1) The BSEA issued a Decision on March 26, 2009 in this matter, finding that Brockton owed Xylon 153 hours of home-based special education services as compensation for services not delivered to him under an accepted Individualized Education Plan between November 2006 and January 2009. (15 MSER 103; P-7)
2) On May 26, 2009, the BSEA issued a Compensatory Services Order finding that Brockton’s proposal to deliver 140.5 hours of compensatory services to Xylon was consistent with the previous Decision; that Brockton could elect to provide the required compensatory services at Xylon’s home, at his out-of-district school, or at a location within the Brockton Public Schools, and that any other parental claims for then current or compensatory home-based services were extinguished. (Administrative Record; S-6; S-7)
3) On June 8, 2009, Brockton notified the BSEA and the Parent that it would provide the requisite compensatory services as an extended day component of Xylon’s private day school. (S-5) The Parent refused to agree to this arrangement. (S-4)
4) Brockton acceded to the Parent’s insistence that all compensatory services be provided in Xylon’s home. Kay Seale, Special Education Director for Brockton, testified that she arranged contracts with two different providers of direct ABA services to provide home- based services in order to avoid some of the scheduling and personnel issues that had thwarted delivery of home-based services in the past. Brockton authorized RCS to provide up to ten hours per week of home-based ABA services. Brockton authorized Boston ABA to provide up to six hours per week of home-based ABA services. There was no ceiling on the aggregate number of hours each provider could deliver to Xylon under the contracts. Brockton did not supervise or direct the delivery of home-based services. The Parent was responsible for scheduling, supervision, and all other non- financial relations with the home-based ABA service providers. (Seale; Marchisio)
5) The 2008-2009 IEP calling for Xylon’s placement at the RCS day school was accepted by the Parent and implemented by Brockton. The 2008-2009 IEP did not include direct home-based ABA services to Xylon. (S-9)
6) The 2009-2010 IEP calling for Xylon’s placement at the Crossroads day school was accepted by the Parent and implemented by Brockton. The 2009-2010 IEP did not include direct home-based ABA services to Xylon. (Seale)
7) All home-based ABA services delivered to Xylon between January and December 2009 were compensatory services. (Seale)
8) Time logs submitted by RCS to Brockton show that RCS therapists delivered 132.25 hours of direct home-based ABA services to Xylon between January 1, 2009 and September 6, 2009. RCS terminated provision of home-based services to Xylon when he left the RCS day school to attend another program. Brockton did not terminate RCS services. (Seale; P-3, S-1)
9) Time logs submitted by Boston ABA to Brockton show that Boston ABA therapists delivered 111.48 hours of direct home-based ABA services to Xylon between April 15, 2009 and November 30, 2009. Additionally Boston ABA provided 35.30 hours of consultation/supervision to Xylon’s home-based program between April 15, 2009 and October 22, 2009. (S-1) The Boston ABA therapists elected to end their relationship with Xylon in December 2009. Brockton did not unilaterally terminate, or withdraw funding for Boston ABA home-based services. (Seale)
10) Xylon received a total of 243.73 hours of direct in-home ABA services between January and December 2009. In addition, the Parent and in-home therapists received more than 35 hours of consultation and supervision regarding Xylon’s home-based program during that time. (P-3, S-1) Ms. Seale testified that she was aware by the end of the summer, 2009, that Brockton had fulfilled its compensatory obligation to provide 140.5 hours of home-based services to Xylon. Nevertheless she authorized Boston ABA to continue to provide home-based services because Ms. Seale believed the services would be helpful to Xylon as he transitioned to a new school placement. (Seale)
FINDINGS AND CONCLUSIONS
After careful consideration of the facts adduced at the hearing and the arguments of both parties, it is my determination that Brockton has demonstrated full and complete compliance with the Decision and Orders of the BSEA in this matter, and that the Parent has not carried her burden of proving otherwise.
In a May 2009 Order based on a March 26, 2009 Decision, the BSEA required Brockton to deliver 140.5 hours of compensatory home-based ABA services to Xylon between January and December 2009. The evidence herein shows that Brockton, through its contractors RCS and Boston ABA, delivered 243.73 hours of direct home-based ABA services to Xylon during that time. There is no credible documentary or testimonial evidence to the contrary. Therefore, I find that Brockton Public Schools has discharged its compensatory services obligation under the Decision and Order previously issued in this matter. The Parent’s Request for a Finding of Non-Compliance is DENIED and this matter is Dismissed.
ORDER
The Brockton Public Schools has complied with BSEA Orders issued March 26, 2009 and May 26, 2009 in this matter.
By the Hearing Officer
____________________________
Dated: July 29, 2010
1
“Xylon” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.