COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Georgetown Public Schools
BSEA # 11-0291
DECISION
This decision is issued 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 August 24, 25, and 26, 2010 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Gretchen Timmel Educational Specialist, Mass. General Hospital
Helena Maguire Melmark New England
Nikea Panopoulos Teacher’s Assistant, Georgetown Public Schools
Debra Hume Teacher’s Assistant, Georgetown Public Schools
Geraldine White Pre-School Teacher, Georgetown Public Schools
Susan McGinnity Special Education Teacher, Georgetown Public Schools
Louise Sherburne School Nurse, Georgetown Public Schools
Stacey Vitale Speech-Language Pathologist, Georgetown Public Schools
Irene Kelley Physical Therapist, Georgetown Public Schools
Karen Hefler Occupational Therapist, Contract Employee with Georgetown
Geri Spector-Brady Occupational Therapist Assistant, Georgetown Public Schools
Margaret Maher Georgetown Public Schools
Ali Pedego Consultant, Melmark New England
David Dempsey Director of Special Education, Georgetown Public Schools
Pamela Susan Milman Attorney for Parents and Student
Daniel Mikolajewski Attorney for Parents and Student
Amy McDonald Rogers Attorney for Georgetown Public Schools
Laurie Jordan Court Reporter
Jessica DeSantis Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-41; documents submitted by the Georgetown Public Schools (Georgetown) and marked as exhibits S-1 through S-109; and approximately three days of recorded oral testimony and argument. Oral closing arguments were made on August 30, 2010, and the record closed on that date.
In order to apprise the parties in a timely manner of my findings and conclusions regarding prospective relief in this case, an Order was issued on September 2, 2010, in advance of the full text of this Decision. See Appendix A.
ISSUES
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Georgetown 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 to the IEP in order to satisfy this standard?
3. If not, would placement at Melmark New England (Melmark) satisfy this standard?
4. Are Parents entitled to compensatory relief for the period during which Parents kept Student out of school from May 10, 2010 through the present; and if so, what compensatory relief is due?
FACTS
Student Profile
1. Student is a four-year-old boy who lives with his Parents in Georgetown, MA. Until he was removed from school by his Parents on May 10, 2010 as a result of their concerns regarding his safety and educational progress, Student had been attending an integrated pre-school program provided by Georgetown pursuant to a stay-put IEP. Testimony of Father, McGinnity; exhibits P-3, P-4, S-26, S-44.
2. Student is a happy and lovable child with a dynamic personality. He enjoys many activities, particularly anything that provides sensory input such as movement as well as music. He loves his family, playing with his siblings, and pretend play. Testimony of Father, Timmel, McGinnity; exhibits P-3, P-4, P-11, P-22, S-44.
3. Student has been diagnosed with Chromosome 15q Duplication Syndrome, which is an extremely rare disorder (fewer than 500 people in the world carry this diagnosis). As a consequence of this syndrome, Student has a number of substantial educational limitations, including global developmental delay (with a diagnosis of Pervasive Developmental Disability, Not Otherwise Specified (PDD, NOS)) and a range of deficits found in children on the autism spectrum. Student’s deficits include abnormal social interaction, sensory dysfunction, cognitive delays, communication deficits, and decreased ability to complete activities of daily living. Testimony of Father, Timmel, McGinnity; exhibits P-3, P-4, P-11, P-20, S-22, S-36, S-37, S-44.
Student’s Most Recent IEP
4. Student’s most recently-proposed IEP (for the period 3/29/10 to 3/29/11), which is the subject of the instant dispute, calls for Student to continue attending his integrated pre-school program, with individual instruction in the afternoons, through the 2009-2010 school year. Additional services include occupational therapy (two times per week for 30 minutes each session), speech therapy (two times per week for 30 minutes each session), a motor skills group (once per week for 30 minutes), physical therapy (two times per week for 30 minutes each session), home-based services (four times per week for 60 minutes each session), and six weeks of extended year services. Student is always accompanied by an adult while at school, typically a 1:1 aide. As with the previous IEP, the methodology in the IEP references ABA instruction but added a reference to discrete trial training. Exhibit P-3, S-44.
5. With the beginning of the 2010-2011 school year, the above-referenced IEP calls for Student’s placement to be changed to a substantially-separate classroom that would include a total of six children (including Student), one special education teacher and five aides. This placement, which is called the Transitions Classroom, is being developed by Georgetown to serve pre-school and 1 st grade children with substantial cognitive and learning limitations. Georgetown expects this classroom to be operational by the first day of school. Student’s related services and summer services from the previous school year would continue within the substantially-separate placement. In addition, Student would have the opportunity to participate in an integrated pre-school classroom (with a 1:1 aide) for a half hour each day, although this amount of time would be increased or decreased as appropriate. Student would always be accompanied by an adult while at school. Testimony of Dempsey, Pedego; exhibits P-3, S-44.
Educational History
6. From an early age, Parents were concerned about Student’s inability to sleep normally and gain weight appropriately. At approximately 19 months, Early Intervention (EI) services were initiated, principally to address Student’s speech and language deficits. At approximately 27 months, genetic testing indicated that Student had Chromosome 15q Duplication Syndrome. EI services were increased to include applied behavior analysis (ABA) instruction for 20 hours per week. At approximately 28 months, Student was diagnosed with PDD, NOS. Student was also demonstrating autistic behaviors, but not sufficient to result in a diagnosis of autism. Testimony of Father.
7. On January 5, 2009, when Student was approximately two and one-half years old, Parents wrote to Georgetown, apprising the School District of Student’s educational and medical history and his need for special education services when he turned three years old (when Student would be eligible for special education and related services from Georgetown). Included with this letter, Parents provided Georgetown with the various evaluations that had been completed regarding their son either privately or through EI. Testimony of Father; exhibit S-1.
8. Georgetown prepared a form, dated January 12, 2009, seeking Parents’ consent for various additional evaluations, and Parents signed the consent form on January 15, 2009. However, for reasons explained below, Georgetown has not conducted any of these or other evaluations, except for an occupational therapy observation and summary report described below. Testimony of Father, Dempsey; exhibit S-8.
9. Georgetown convened an IEP Team meeting on March 17, 2009. The IEP Team reviewed the evaluations that had been provided to Georgetown by Parents and determined that these evaluations were sufficient to determine Student’s eligibility and the special education and related services that should be provided to Student, making it unnecessary for Georgetown to conduct the evaluations to which Parents had earlier consented. In a letter to Georgetown dated April 17, 2009, Parents recommended that Georgetown utilize a number of evaluation tools as a means of systematically measuring Student’s progress. However, Parents did not then, or at a subsequent time, request that Georgetown conduct further evaluations of their son. Testimony of Father, Dempsey, Hefler; exhibit S-16.
10. Georgetown conducted an informal occupational therapy assessment (through observation) to determine Student’s need for a structured sensory diet. Ms. Hefler (Georgetown’s occupational therapist) testified that she informally evaluated Student when he was first enrolled in the School District to determine his needs in this area. A structured, staff-directed sensory diet was implemented during Student’s 2009 summer program. Ms. Hefler observed that in that program, Student tolerated the environment well and made transitions successfully. On the basis of her observations, she concluded that Student did not have any substantial difficulties with sensory issues and that he was neither under or over-aroused. She recommended and the Team agreed that in September 2009 when Student began the school year, staff would phase out the structured sensory breaks, allowing Student to ask for breaks as he needed them and allowing for staff to initiate breaks when staff determined they were needed. Testimony of Hefler; exhibit S-30.
11. A proposed IEP was developed as a result of the March 17, 2009 Team meeting. The IEP generally provided for Student to attend an integrated pre-school program in the morning, with individual instruction in the afternoon. The IEP included occupational therapy, physical therapy, speech-language services both within and outside the classroom; home training by a behavior consultant; and participation in Georgetown’s six-week summer program. The IEP was for the period from 7/4/09 (Student’s third birthday) to 4/1/10. Testimony of Father; exhibits P-4, S-22.
12. Parents believed that the proposed IEP was inappropriate because it did not sufficiently address Student’s risk of choking. Father testified that prior to Student’s turning two and a half-years old, his son had approximately ten choking incidents that Parents believed put his life in danger. Father explained that he discussed these incidents and Parents’ concerns with Georgetown. The IEP was amended to make clear that Student would always be accompanied by a 1:1 staff trained in Heimlich maneuvers and CPR. Parents believed this to be sufficient to address their concern regarding the risk of choking. There have been no reported incidents of choking at school. Parents fully accepted the amended IEP on June 3, 2009. Testimony of Father; exhibits P-4, S-22.
13. For the summer of 2009, Student attended Perly Pal, which is Georgetown’s summer program. The program runs for six weeks, three days per week, from 9 AM to 2 PM. The related services for Student also began during the summer and were implemented within the summer program classroom. Testimony of Spector-Brady.
14. Father testified to a series of concerns that began in the fall of 2009 regarding the safety of their son at school. Father stated that his wife reported to him that there were multiple occasions between October and December 2009 when she observed her son on the playground without a 1:1 aide, and that during the 2009 Christmas party that Mother attended at school with Student, he did not appear to have a 1:1 aide with him. Testimony of Father.
15. On December 21, 2009, Student was diagnosed with a seizure disorder. Testimony of Father.
16. On January 27, 2010, Student arrived at school with a cold, and Mother asked Georgetown staff to monitor him because of his cold. Student’s special education teacher (Ms. McGinnity) testified that she monitored Student and did not notice any fluid coming out of his ears. When Mother picked up Student at the end of the school day, she noticed that Student had fluid coming out of his ears, she then took her son to his pediatrician who determined that Student had a double ear infection. The next day, Mother took Student to an ear, nose and throat specialist. Father testified that his son was determined to have had a burst eardrum although there is no medical record in evidence that substantiates this. Student, who has had multiple previous ear infections and had had tubes placed in his ears, was referred by his pediatrician for new tubes. There is no evidence that Student’s hearing has been compromised. Testimony of Father, McGinnity; exhibit S-105.
17. At Parents’ request, an IEP Team meeting occurred on February 1, 2010 to discuss Parents’ concerns regarding the above-referenced January 27, 2010 incident. Parents were then and remain concerned about these kinds of incidents, in part because of Student’s limited ability to report injury or pain, as well as his relatively high pain threshold. At the February 1 st meeting, Student’s recent seizure diagnosis was also discussed. Georgetown developed a plan for its staff to follow in the event that Student has a seizure. Parents accepted this plan on February 1, 2010. There has been no indication that Student has had a seizure at school. At the February 1 st meeting, there was also a discussion of the certification of staff regarding CPR and Heimlich. It is not disputed that by December 2, 2009, Student’s special education teacher and aide were appropriately certified. Parents followed up the meeting with a letter to Georgetown, dated February 2, 2010, detailing their concerns in these areas. Testimony of Father; exhibits S-33, S-34.
18. On January 26, 2010, Student was given a neuropsychological evaluation by Amy Morgan, Ph.D., a licensed clinical psychologist at Mass. General Hospital. On February 22, 2010, Student was given an “expanded clinical evaluation” by Karmen Schmidt, Ed.M., a clinical research coordinator at the LADDERS program at Mass. General Hospital. These evaluations confirmed the previous diagnosis of PDD/NOS, as manifested principally in behaviors (that include atypical use and comprehension of language), attention deficits, social interaction difficulty, and weaknesses in motor skills. Exhibits P-18, P-19, P-20, S-36, S-37.
19. On March 9, 2010, Student was observed at school for approximately two and a half to three hours by Gretchen Timmel, M.Ed.1 Her report and testimony are summarized separately below. Testimony of Father, Timmel; exhibits P-11, S-39.
20. On March 9, 2010 during Ms. Timmel’s observation, Student bolted to the door during circle time and briefly left the classroom but was retrieved by a teacher before he reached the stairway. Testimony of Timmel; exhibits P-11, S-39.
21. On March 29, 2010, Georgetown convened an IEP Team meeting to consider the two above-referenced evaluations and observation report, consider Student’s progress, and develop a new IEP for Student (the previous IEP was due to expire on April 1, 2010). During the first 45 minutes to an hour of the meeting, Dr. Morgan and Ms. Timmel participated by conference call, during which their reports were reviewed and discussed. Ms. Timmel made clear in her discussions with the Team and in her observation report that Student should be provided an educational program that utilizes, to a substantial degree, ABA methodology. She believed that these principles should be integrated into Student’s IEP. She also took the position that Student should receive individual instruction in the form of half-hour, 1:1 tutorials, three times per day. There appeared to be general agreement at the Team meeting with these and other recommendations of Ms. Timmel. The Team meeting then continued for approximately one more hour without Ms. Timmel and Dr. Morgan, during which Student’s progress and other IEP issues were discussed. Testimony of Father; exhibits P-11, S-42.2
22. Father testified that during the March 29 th Team meeting, Parents explained that they did not believe their son was making educational progress and that his developmental delays were actually increasing, as evidenced by a comparison of Early Intervention testing in February 2009 and Dr. Morgan’s neuropsychological evaluation results. Other Team members disagreed, reporting on Student’s progress as reflected in their experience with Student in the classroom and while Student was receiving his related services outside of the classroom. During the meeting, Parents took the position that the then-current placement was not appropriate for their son and that he should be immediately placed in another placement either within the district or in an out-of-district placement. The meeting addressed Student’s need for special education and related services and the kind of placement that would be appropriate for Student, but did not discuss the possibility of an out-of-district placement for the summer of 2010 or for the 2010-2011 school year. Testimony of Father, Dempsey.
23. As a result of the March 29 th Team meeting, Georgetown prepared what is the most recently-proposed IEP and which is the subject of the instant dispute. The content of the IEP is described above. Parents did not respond to this IEP other than filing their request for hearing in the instant dispute on July 12, 2010. The hearing request took the position that the IEP was inappropriate and thereby effectively rejected the IEP. Testimony of Father; exhibits P-1, P-3, S-44.
24. Because Parents did not accept (and ultimately rejected through their hearing request) the IEP that was developed as a result of the March 29 th meeting, Georgetown implemented the stay-put IEP—that is, Student’s earlier IEP, which was fully accepted by Parents, for the period from 7/4/09 to 4/1/10. The only substantive change introduced after the March 29 th meeting was the re-introduction of a structured sensory diet, which could be implemented under the stay-put IEP. Although Georgetown occupational therapy staff did not believe that a structured sensory diet was necessary, Georgetown agreed to re-introduce the structured sensory diet in order to follow Ms. Timmel’s recommendation and Parents’ preference. Testimony of McGinnity, Hefler; exhibits P-3, P-4, S-22, S-44, S-62.
25. Ms. Hume (one of Student’s aides) testified that on May 7, 2010, Student left the classroom area while eating lunch and was then quickly retrieved by a staff person (Ms. Mueskes). Ms. Mueskes was not one of Student’s assigned aides but was the staff person sitting closest to Student. Ms. Hume was also with Student at the time. Student was out of the classroom for approximately three or four minutes. Ms. Hume testified that, to her knowledge, this was the only time that Student actually left the classroom without permission. Testimony of Hume.
26. Parents had sought assurance from Georgetown that Student’s aides would only be the three agreed-upon aides because of Parents’ concerns that their son always be with an aide who was able to administer CPR and the Heimlich maneuver in the event that he began to choke. Father testified that the May 7, 2010 incident (described above) indicated that Student was with an aide who was not one of the three agreed-upon staff who were to be Student’s 1:1 staff persons at all times at school. By letter of May 7, 2010 to the Principal, Parents took the position that on May 7 th , Ms. Mueskes had inappropriately been their son’s 1:1 aide even though Ms. Hume (who was one of Student’s designated aides) was with Student the entire the time. In their letter, Parents stated that due to safety concerns, they were removing their son from school for the remainder of the day. Testimony of Father; exhibit P-14.
27. On May 10, 2010, while in his classroom, Student sat on a bean-bag chair which slipped out from underneath him, resulting in Student’s falling and hitting his head on the wooden stairs. Student routinely sat on the bean-bag chair in the classroom. Student’s aide, who was close by Student at the time of the accident, took him to the school nurse who did a physical exam and found no indication of injury. The nurse then called Mother who picked up her son at school and, later that same day, had her son seen by his pediatrician. The pediatrician found no indication of injury and cleared Student to return to school and resume all activities. Soon thereafter, on May 13, 2010, Student had a routine neurology evaluation; the neurologist’s notes indicate that Student has had no head injuries. Father testified that even a minor head injury is nevertheless a head injury and that Student’s aide should not have allowed this incident to occur. There is no other report or incident of possible injury to Student at school during the time that Student has attended the Georgetown Public Schools. Testimony of Father, Panopoulos; exhibits S-59, S-105, S-109.
28. On May 10, 2010, Parents concluded, on the basis of the May 10 th incident (described above) together with their history of safety concerns (also described above), that their son was not safe at school, and they removed Student from school on that date. Student has not returned to school. In sum, Father testified that he and his wife believed that Georgetown could not effectively implement a safe environment for their son. Parents were also concerned that Student was not making effective progress at school, that his sensory breaks (for example, walking from one place to another in the classroom) were self-directed rather than being directed by staff, and that he was being aggressive towards other children at school. They concluded that the risk of harm to Student outweighed any benefit of his attending school, and that therefore their son should not further attend school at this educational placement. Testimony of Father.
29. As noted above, the March 29 th Team meeting had not included a discussion of placement, other than the determination that Student should be placed within a substantially-separate classroom. Subsequent to the Team meeting, Parents sought a meeting with Georgetown to discuss Student’s placement. Because of scheduling difficulties, this meeting could not be scheduled until April 13, 2010. Parents later postponed this meeting, and the meeting was re-scheduled for May 27, 2010. Testimony of Father, Dempsey.
30. On May 27, 2010, Georgetown convened a Team meeting to discuss the May 7 th and May 10 th incidents, as well as Student’s placement. At the beginning of the meeting, the Georgetown Elementary School Principal sought to strike a conciliatory tone, hoping to re-establish a positive relationship with Parents, but by all accounts, the meeting quickly became contentious. At this meeting, Parents took the position that their son had incurred a substantial head injury at school on May 10 th even though there was no medical support for this position. When asked to be allowed to see the medical reports indicating Student’s injury, Parents refused. Parents made it clear that they were no longer willing to meet with or otherwise try to work out their disagreements with Georgetown informally, and that their attorney would be filing a request for hearing with the BSEA for purposes of addressing their disagreements with Georgetown. Father testified that as of May 27 th , he and his wife essentially “gave up” on Georgetown, believing that Georgetown could not or would not appropriately and safely educate their son. Mr. Dempsey testified that once the meeting became contentious, it was not possible to discuss Student’s placement, with the result that this discussion never occurred. Testimony of Father, Dempsey; exhibit S-47.
31. Subsequent to the May 27 th meeting, Georgetown generated an individual safety plan for Student that included use of a padded helmet at times when Student would be engaging in an activity that might pose a risk of a head injury, as well as an individual health care plan. After consultation with a Melmark consultant, Georgetown staff believed that a helmet would be appropriate for Student in light of Parents’ report that he had suffered a head injury at school. Georgetown staff learned at a later time, through the process of discovery in the instant dispute, that medical records did not indicate that Student had suffered a head injury as a result of the May 10 th incident. Testimony of Dempsey, Sherburne; exhibits S-50, S-51.
32. After the May 27 th meeting, Parents had discussions with their son’s pediatrician and neurologist, both of whom supported Parents’ decision that Student should not return to school for safety reasons. Student’s pediatrician provided Parents with a note to that effect; the note was provided to Georgetown for the first time after the BSEA hearing request was filed. Testimony of Father; exhibits P-16, S-106.
33. During the month of May 2010, Parents began to explore Melmark as a possible private placement for their son. Parents made application to Melmark, and by letter dated August 16, 2010, Melmark notified Parents that Student had been accepted to attend Melmark. Testimony of Parent; exhibit P-5.
DISCUSSION
Legal Standards
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 FAPE must be provided in the least restrictive environment.6
FAPE is defined by the IDEA to include state educational standards, which may exceed the federal floor .7 The Massachusetts educational standards are found within state statute and state education regulations and include a FAPE requirement.8
Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of the individualized education program or IEP.9 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”10
Through the provision of FAPE, “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”11 For this purpose, a school district must develop an IEP that is “reasonably calculated to enable the child to receive educational benefits”.12 The minimum requisite educational benefits have been characterized as allowing for a “meaningful” educational opportunity13 and “effective progress”14 , with “l evels of progress … judged with respect to the potential of the particular child.”15 Massachusetts standards further require the special education services to be “ designed to develop the [student’s] educational potential” .16
At the same time, FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.17 Similarly, the educational services need not necessarily be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”18
In the instant dispute, Parents have the burden of persuasion that Georgetown’s proposed IEP was not appropriate and that Georgetown owes compensatory services for the time period during which Student was removed from school.19
Proposed IEP Regarding Prospective Services and Placement
The principal issue in dispute is whether the prospective services and placement proposed for Student (beginning September 2010) are reasonably calculated to provide him with FAPE in the least restrictive environment. With respect to this issue, there are points of agreement between the parties, and points of disagreement. I begin with a discussion of those areas where there is agreement.
Both parties believe it appropriate that Student be educated within a substantially-separate educational program. Georgetown is seeking placement of Student within a substantially-separate classroom (referred to as the Transitions Classroom) beginning September 2010 for the 2010-2011 school year. Parents’ only expert witness (Ms. Timmel) testified that she believed that a substantially-separate program would be appropriate for Student. Testimony of Dempsey, Timmel; exhibits P-3, S-44.
Both parties believe that it is appropriate for Student’s educational program to utilize ABA principles of instruction, including discrete trial training, and that these principles should be integrated into Student’s IEP. Testimony of Timmel, McGinnity, Pedego.20
There is no dispute regarding the proposed related services of occupational therapy, physical therapy and speech-language services, nor is there any dispute regarding the proposed home-based services. Also, Parents did not introduce evidence disputing the appropriateness of summer services.
The points of disagreement focus principally on whether the IEP is written appropriately for purposes of the implementation of an individualized ABA-based program, with 1:1 instruction, that can adequately address Student’s behavioral and social difficulties and that will allow him to learn new skills (e.g., learn daily living skills such as toileting and gain greater potential to make academic gains through learning how to learn skills) notwithstanding his cognitive and learning weaknesses.
I begin with consideration of the appropriateness of the IEP generally with respect to programming that is based upon and that can implement ABA methodology.
Consistent with accepted practices for implementation of an ABA program, Ms. Timmel’s unrebutted testimony was that Student’s teacher should be supervised by an ABA specialist and that the supervision/consultation time should be at least two one-hour sessions per week. Ms. Timmel explained that this is necessary so that the specialist can be involved in overseeing and making adjustments over time to Student’s program based upon data collection. The IEP does not include this level of consultation and supervision by an ABA specialist, but instead simply provides for consultation from a variety of staff (including a behaviorist) for a total of a half hour each week. I agree with Ms. Timmel in this regard. Testimony of Timmel; exhibit P-3, S-44.
Ms. Timmel’s unrebutted testimony was that the IEP should be written so that it reflects ABA principles—including, for example, the goals and objectives where individual instruction or intervention is to be provided pursuant to ABA methodology—with the result that ABA principles are integrated into the document. Ms. Timmel testified persuasively that Georgetown’s proposed IEP does not sufficiently reflect these principles and requirements. Testimony of Timmel.
Dr. Pedego’s testimony that Student’s IEP would need to be re-drafted to reflect his individualized ABA program indirectly supported Ms. Timmel’s criticism that the IEP, in its present form, does not reflect an individualized, ABA program of instruction. I agree with Ms. Timmel in this regard. Testimony of Timmel, Pedego; exhibits P-3, S-44.
Ms. Timmel’s testimony and report reflect her concern regarding Student’s behavior within the integrated classroom—for example, that he was allowed to leave organized activities and explore the room, and that he appeared to be responding to external stimuli as compared to taking direction from staff. Ms. Timmel explained that Student appeared to lack an understanding of cause and effect—for example, if he does something, he does not understand that it will result in a response. Ms. Timmel testified that this was a substantial concern that did not appear to be addressed appropriately within the program. This testimony, which was credible, was not persuasively rebutted. Testimony of Timmel; exhibits P-11, S-39.21
For these reasons, I find that Georgetown’s proposed IEP is not appropriate, and therefore, Parents were justified in rejecting the IEP at the time that it was prepared. I further find, however, that for purposes of providing Student with appropriate special education and related services and placement prospectively, Georgetown’s proposed IEP can be made appropriate through the following additions and modifications.
First, I adopt Ms. Timmel’s recommendation that the IEP include two hours per week of consultation services from an ABA specialist. It may also be, as Dr. Pedego testified, that the consultation will need to be front-loaded so that a greater amount of consultation time is provided earlier in the school year and less time as Student’s educational program is developed.
Second, I agree with Ms. Timmel that the IEP must be re-drafted to reflect ABA principles, particularly with respect to addressing Student’s behavior deficits, daily living skills such as toileting, and other areas where individual instruction or intervention is called for utilizing ABA methodology. The re-drafting process shall occur consistent with Dr. Pedego’s testimony. As will be discussed below, Dr. Pedego testified that the IEP will be re-drafted subsequent to the Assessment of Basic Language and Learning Skills (revised) (ABLLS-R) evaluation of Student and the development of his individual program binder. Dr. Pedego testified that this process would likely be completed within approximately ten weeks after the beginning of the 2010-2011 school year.
Finally, I note Ms. Timmel’s concerns, which I have credited, regarding the manner in which Student’s behavior was being addressed within his program. On the basis of Dr. Pedego’s testimony (discussed below), I find that this concern will be appropriately addressed through the structure of Student’s placement in Georgetown’s Transitions Classroom and does not require modification of the written IEP.
Ms. Timmel had other criticisms of the proposed IEP but I discount them because I find that they were based upon an incomplete, and in some cases incorrect, understanding of Student’s educational strengths and deficits. I will explain briefly.
Ms. Timmel testified that, in her opinion, Student’s language is at a very rudimentary level, that he does not have meaningful communication skills, and that he requires a strong enhancement of functional communication skills as a priority area within the IEP. She found the IEP lacking in this regard in that it did not appear to be geared towards his level of communication need and testified that this is a fundamental deficit of the IEP. Ms. Timmel reached this conclusion after observing Student for two and a half to three hours during a school day when he was unusually disregulated behaviorally. Testimony of Timmel; exhibits P-11, S-39.
In rebuttal, Ms. McGinnity and Ms. Vitale (Student’s special education teacher and his speech-language pathologist, respectively) testified persuasively that Student routinely uses and understands language in a meaningful manner—for example, in class he is able to verbally communicate in a meaningful manner his needs and wants, he answers multiple choice questions, he can talk about a non-present person, and by May 2010, he could answer open-ended questions. Ms. Vitale testified that Student made effective progress in pragmatic speech during the speech-language therapy sessions, that his social skills improved, and that over the course of the year Student increased his knowledge of the structure and use of language. Their testimony was persuasive that the language services, goals and benchmarks in the proposed IEP are appropriate. Testimony of McGinnity, Vitale.
Ms. Timmel testified that Student did not interact with his peers, had no reciprocal social relationships and appeared to be gaining little out of participating in a classroom with typical peers. She observed that he seemed to be bothered by proximity of peers and once pushed students during a free form activity, not for the purpose of hurting the other students but rather to separate himself from others. This testimony cast doubt on the benefit and appropriateness of Student’s spending time with typical peers, as contemplated by the proposed IEP for a half hour each day in the integrated pre-school class. Father similarly testified that he saw no benefit in his son’s spending time with typical peers. Testimony of Timmel, Father.
However, Ms. McGinnity provided more persuasive testimony that Student has good imitation skills and for purposes of development of social skills, he benefits from the modeling by typical peers within the integrated pre-school setting. She opined that Student therefore has benefited from and would likely continue to benefit from exposure to typical peers. Ms. McGinnity’s testimony was supported by Dr. Morgan’s neuropsychological evaluation and the “expanded clinical evaluation” by Ms. Schmidt, which noted Student’s strengths in the area of his social interaction skills. Testimony of McGinnity; exhibits P-18, P-19, P-20, S-36, S-37.
Ms. Timmel criticized the IEP with respect to the academic goals and objectives because, in her opinion, Student was not at the level where he would be able to access the skills being taught, as contemplated by the IEP. In this area as well, I found more persuasive Ms. McGinnity’s testimony that based upon her daily experience with Student, he has the ability to access the skills being taught pursuant to the IEP. Testimony of Timmel, McGinnity.
Ms. Timmel also criticized what she believed to be a lack of individual, meaningful instruction. However, Ms. Timmel only observed Student in the integrated pre-school program and did not observe the afternoon sessions, which typically include daily 1:1 instruction for approximately one hour. I therefore discount this criticism by Ms. Timmel. I also note that, as discussed below, the Transitions Classroom will provide highly-individualized instruction for Student.
I next consider whether Georgetown has the capacity to develop the ABA-based program it proposed and as recommended by Ms. Timmel, so that it may be implemented at the beginning of the 2010-2011 school year. This is a substantial point of inquiry since, as Dr. Pedego and Mr. Dempsey made clear in their testimony, the development of a new program is a challenging project that requires planning over a period of time, must include the commitment of sufficient financial and programmatic resources, and must be supported at many levels within the School District in order to be successful.
Georgetown has engaged in a planning process, begun during the 2009-2010 school year, to develop the kind of ABA program recommended by Ms. Timmel. The Transitions Classroom was specifically approved for purposes of funding by the Georgetown School Committee in March 2010. Since July 1, 2010, Georgetown has engaged a Melmark consultant (Dr. Pedego). With her assistance, Georgetown has been planning for the development of a substantially-separate, ABA classroom for pre-school students and 1 st graders to begin for the 2010-2011 school year. It is not disputed that Georgetown has hired appropriate staff and has purchased the requisite educational and testing resources, and is prepared to begin this classroom on the first day of school in September 2010. Testimony of Pedego, Dempsey; exhibits S-82 though S-101.
Dr. Pedego testified that she is not only developing the Transitions Classroom for Georgetown but that she will also personally oversee the classroom through supervision of the classroom’s special education teacher for six to eight hours each week. The special education teacher (Ms. McGinnity, who also taught Student during the 2009-2010 school year) has substantial experience regarding the implementation of ABA principles in her employment prior to coming to Georgetown, and she has received previous instruction in these principles. Georgetown has hired five aides to work with Ms. McGinnity; and all five aides as well as Ms. McGinnity have participated in a five-day training program (24 hours of training time) conducted this past summer by Dr. Pedego, together with one of her colleagues for the purpose of the implementation of this new program. Georgetown has also engaged a BCBA to work on a .6 part-time basis to support this and other ABA-based programs within the School District. Testimony of Pedego, Dempsey, McGinnity; exhibits S-69, S-75, S-97.
Dr. Pedego testified that once the school year commences in September 2010, she and Ms. McGinnity and their five aides will take approximately two weeks to allow the six children (including Student) scheduled to attend the classroom to acclimate to this new program. Dr. Pedego and the Georgetown staff will then assess each Student using the ABLLS-R test instrument to evaluate each child for purposes of understanding better how to teach that child using ABA principles. Dr. Pedego and Ms. McGinnity will then develop an individual program binder for each child, spelling out in detail how ABA principles (including data collection) will be utilized to teach each part of the particular child’s curriculum. The child’s IEP would be amended through the Team process to reflect this. Testimony of Pedego.
Other aspects of the Transitions Classroom address concerns and recommendations of Ms. Timmel. Because of the staffing level and number of children anticipated in the classroom, there will be a staff/student ratio of 6:6, allowing for a substantial amount of 1:1 instruction together with a high level of supervision throughout the day. When Student would travel to the pre-school inclusion classroom or to any other part of the building, he would always be accompanied by an aide. Testimony of Pedego, Dempsey, Timmel.
As discussed above, Ms. Timmel was concerned that within Student’s then-current placement, external stimuli were essentially dictating his behavior, rather than his responding to staff. Dr. Pedego testified persuasively that these concerns would be addressed appropriately through the model being used for the Transitions Classroom. She explained that because of the highly structured and individualized nature of this program, there simply would be no opportunity for Student’s behavior to be driven predominantly by external stimuli. Testimony of Pedego, Timmel.
The only evidence that might possibly cast doubt on Georgetown’s ability and willingness to implement such a program was Ms. Timmel’s testimony that she was skeptical as to whether Georgetown could and would implement an ABA program suitable for Student. Ms. Timmel’s skepticism appeared to be based solely on her concern that Georgetown had not yet developed an IEP that reflected her recommendations even though during the March 29, 2010 meeting, the IEP Team members heard her recommendations and appeared to agree with these recommendations. She was also concerned about the importance of addressing Student’s educational needs appropriately without further delay, and she noted the potential challenges and uncertainties in developing a new program, as compared to an already-established ABA program such as Melmark. Testimony of Timmel.
In her testimony, which occurred prior to Dr. Pedego’s testimony, Ms. Timmel gave no indication that she was aware of the specific plans being developed by Georgetown and Dr. Pedego for the implementation of this program, including the staff who have been hired and trained and the resources that have been purchased. As a result, Ms. Timmel provided no response to Dr. Pedego’s and Mr. Dempsey’s testimony that Georgetown is creating a program that appears likely to implement many of Ms. Timmel’s recommendations and address many of her concerns. There is no way of knowing whether, if she had heard this testimony, Ms. Timmel would continue to have these concerns. I do not give her skepticism substantial probative weight. Testimony of Timmel.
I turn to Parents’ other arguments relevant to the issue of prospective services and placement, beginning with a position that was argued by Parents’ attorney throughout the evidentiary hearing.
Parents’ attorney has correctly taken the position that the appropriateness of an IEP must be judged as of the time when it is proposed—that is, whether the IEP was “ objectively reasonable … at the time the IEP was promulgated.”22 On the basis of this legal principle, Parents’ attorney sought to exclude any evidence relevant to any discussions or information not provided or made available to the IEP Team during the Team meeting on March 29, 2010 when the IEP at issue was discussed and when decisions were made as to what would be included within the IEP. Thus, for example, Parents’ attorney objected to all written descriptions of the program that were developed after the Team meeting and Dr. Pedego’s testimony in its entirety.
I find Parents’ argument to be relevant to the appropriateness of the IEP as written as a result of the March 29, 2010 IEP Team meeting as well as relevant to the appropriateness of the IEP for the time period from March 29 th through the date of the BSEA hearing for purposes of Parents’ compensatory claims; but their arguments are not relevant to my consideration of evidence relevant to whether there may be any additions or other modifications to the IEP sufficient to make the IEP appropriate for purposes of Student’s placement for the upcoming 2010-2011 school year. My determination of prospective services and placement is not limited to whether the IEP, when promulgated, was appropriate, but extends to the question of whether (and, if so, how) the IEP can be made appropriate for the future. This inquiry is necessary in order to fashion an order for Student’s services and placement which are not only appropriate but also least restrictive, since a central focus is whether the School District can make the necessary additions and modifications so that Student need not be placed out of district into a program that would include only students with disabilities. I am not aware of a single administrative or judicial decision that supports Parents’ position on this procedural point.
Parents made a number of additional arguments, principally with respect to Georgetown’s proposed placement of Student into the substantially-separate Transitions Classroom.
Parents are correct that during the March 29, 2010 Team meeting, there was never a discussion of Student’s specific placement into the Transitions Classroom. Parents also correctly note that they were never part of any subsequent Team meeting during which Student’s actual placement was discussed. Parents also are correct that when the IEP was being developed at the March 29, 2010 Team meeting, the proposed Transitions Classroom had not been developed and could not be described with sufficient specificity to provide Parents an opportunity to understand the details of this program. And, Parents point out, again correctly, that the only placement page associated with the IEP developed at the March 29, 2010 Team meeting called for a placement with 80% inclusion, which is not a substantially-separate placement.
Parents have legal authority that supports these claims. Parents have a right to be part of Georgetown’s placement decision-making process. The IDEA requires that Parents be “members of any group that makes decisions on the educational placement of their child.”23 Massachusetts provides greater procedural protection, stating within its special education regulations that any placement determination must be made by the IEP Team.24 Also, as a general rule, Parents are correct that Georgetown’s IEP must be judged on the basis of what is written rather than what may have been intended.25 Parents also rely upon the Massachusetts statute that gives them the right to observe a school district’s proposed program.26
However, I am not persuaded that these arguments have merit. My reasoning follows.
I first consider the Massachusetts statute regarding parental observation rights. Inevitably, school districts that develop new programs will be in the position of having to offer a program to parents at a time when it has not been fully developed and is therefore not observable. It would make no sense to interpret the Massachusetts observation statute as giving Parents the right to see a Georgetown program that does not actually exist because it is being developed.
This is not to say that there are no implications to a school district’s being unable to describe adequately a proposed program. There are times when a parent’s lack of information about a proposed program is relevant to a Hearing Officer’s determination of whether the parent is entitled to relief. For example, in a relatively recent decision , Hearing Officer Berman noted: “ In the spring of 2008 and thereafter, despite this wealth of knowledge about Student and his needs (including his need for further assessment), Natick failed to provide Mother with a concrete, coherent description of how the embryonic ACHIEVE program was going to meet them. Natick provided Mother and Student with little more than a program name, the name of a lead teacher, a location, and the name of the published curriculum to be used…. Mother lacked crucial advance information about ACHIEVE’s appropriateness to meet Student’s documented needs.”27
Ms Berman appropriately considered this lack of information to be one of several, important factors in her determination that the student’s mother should be reimbursed for the costs of her unilateral placement of her son. In that case, the parent’s lack of programmatic information was relevant to the reasonableness of her actions. The critical distinction is that unlike the Natick case, Parents in the instant dispute did not take any action for which they should be compensated.
I next consider Parents’ argument that they were not provided the requisite opportunity to participate in Georgetown’s placement decision-making. As reflected above in Facts par. 30, Parents’ actions during the IEP Team meeting of May 27, 2010 interfered with the IEP Team’s consideration of placement. Parents cannot complain about Georgetown’s failure to discuss placement when they themselves were a principal reason that the discussion never occurred.28 In addition, Father’s testimony made clear that by May 27, 2010, any further discussions with Georgetown would not be useful. See Facts, par. 30. I find that in the event that a procedural error occurred, it did not cause harm to Parents by actually limiting their ability to participate in educational decision-making relevant to their son, with the result that Parents are not entitled to relief.29
Next, I address the argument that the only placement page issued by Georgetown called for 80% inclusion rather than a substantially-separate classroom. Mr. Dempsey’s unrebutted testimony was that the issuance of this placement page was a typographical error. Starting with the IEP Team meeting on March 29, 2010, Georgetown staff have always been clear with Parents that they were proposing a substantially-separate program for the 2010-2011 school year for Student, and the placement page simply reflects a typographical error. This likely occurred because the placement for last year was for 80% inclusion and therefore this placement page was appropriate for the first period of time covered by the IEP. Georgetown simply did not include a second placement page for its proposed program for the 2010-2011 school year. Testimony of Dempsey.
Importantly, the service delivery grid for the proposed IEP with respect to the time period beginning in September 2010 was clear that all special education and related services (other than a half hour each day within the integrated pre-school) were to be delivered outside of the regular-education classroom. There is no conceivable way that Parents could have reasonably understood this IEP to call for anything other than a substantially-separate program beginning in September 2010. Parents provided no evidence indicating that in some way they were misled to believe that Georgetown was proposing an 80% inclusion model for this time period or even that they actually believed that what was being offered was anything other than a substantially-separate program. I find that Parents knew or reasonably should have known that the placement page included a typographical error. Georgetown should not be penalized for this oversight that caused no harm to Parents.
In conclusion, I find that Georgetown has the capacity to develop an appropriate ABA-based, substantially-separate classroom for Student that can be implemented on the first day of the 2010-2011 school year. I further find that the IEP proposing this program, while not appropriate as written, can be made appropriate by amendment to include two hours per week of consultation services from an ABA specialist, and by re-drafting the IEP to reflect ABA principles, particularly with respect to addressing Student’s behavior deficits, daily living skills such as toileting, and other areas where individual instruction is called for utilizing ABA methodology.
Parents’ Compensatory Claims
Compensatory education is an equitable remedy involving discretion in determining what, if any, relief is appropriate after consideration of all aspects of the case.30 Compensatory relief is essentially a remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.31
In their hearing request, Parents have sought compensatory relief for the period of time from May 10, 2010 through the present. Parents withdrew Student on May 10 th and have not returned him to school. As discussed within the Facts section, above, in par. 28, Parents concluded on May 10th that Georgetown could not effectively implement a safe environment for their son and that their son was not making effective progress. They concluded that the risk of harm to Student outweighed any benefit of his attending school. Testimony of Father.
I first consider whether the IEP was appropriate with respect to the proposed special education and related services during the academic year, beginning on May 10, 2010. I then consider this claim with respect to the summer. Finally, I will consider Parents’ safety concerns that ultimately precipitated their withdrawing Student from school. With respect to the last point, Parents are correct that as part of its obligation to provide Student with FAPE, Georgetown had an obligation to provide a safe environment within which Student may learn.32
For the reasons explained below, I find that compensatory services are not warranted.
Appropriateness of proposed IEP from May 10, 2010 through the end of the academic school year .
For reasons already explained with respect to the IEP to be implemented prospectively (from the beginning of the academic school year in September 2010), I do not believe that the proposed IEP for the period from May 10, 2010 through the end of the academic school year was appropriate with respect to the special education services described therein.
Specifically, as Ms. Timmel testified persuasively, the IEP did not sufficiently incorporate ABA learning principles generally, and in particular did not do so for purpose of addressing Student’s maladaptive behaviors and toileting needs. Ms. Timmel was appropriately concerned that Student appeared to be allowed to simply respond to external stimuli, with the result that he frequently did what he desired within the morning integrated pre-school part of the day, with the result that Student may have been learning maladaptive behaviors. It is not disputed that Student made no progress over the course of the 2009-2010 school year with respect to his aberrant behaviors. Also, the IEP also did not include sufficient consultation time from an ABA specialist. Testimony of McGinnity.
It is also not disputed that Student’s toileting program was not successful in that he has not learned to urinate or defecate using the toilet. Ms. McGinnity conceded in her testimony that Student has not had a toileting program although he has mastered the steps preceding and following toileting—for example, the shaping skills referenced by Ms. Timmel in her testimony. Ms. McGinnity testified that a toileting program will be developed using ABA methodology and with oversight of an ABA specialist for the 2010-2011 school year, but the program will not be developed until after the beginning of the 2010-2011 school year.
In addition, the IEP for this time period from May 10 th through the end of the academic year called for a placement for 80% of the time with typical peers, as compared to a substantially-separate classroom. Georgetown has conceded that a substantially-separate program is needed for Student. Testimony of McGinnity, Timmel.
However, this last deficit is of little weight for several reasons. First, Ms. Timmel made clear in her April 2010 observation report that Student’s “classroom setting is believed to be very conducive to learning” and she did not recommend a change in placement in her report. She testified that all of her recommendations could be implanted within his then-current placement. During her testimony at hearing, Ms. Timmel opined, for the first time, that a substantially-separate placement would also be appropriate for Student.
Also, Ms. McGinnity testified persuasively that it would not have been in Student’s educational interests to shift him into a different program this late in the school year. Student had made important adjustments to the teachers and his peers, and he was making effective progress in many areas. She opined that it was educationally indicated for him to remain in his then-current placement through the end of the academic calendar. Parents provided no evidence to rebut this opinion. Testimony of McGinnity.
Beyond those areas of the IEP that were deficient, there were many areas where the stay-put IEP was successful, indicating that the proposed IEP would also have been successful if implemented and if Student had continued to attend school rather than be withdrawn by Parents.
For example, Student was making effective progress in social skills. Ms. McGinnity explained that, consistent with Ms. Timmel’s recommendations, Student was already receiving instruction in social pragmatics and social skills during the integrated pre-school portions of the day, and that Student had made substantial progress in these areas over the course of the school year. By May 2010, he was asking peers to play during his free time, he was more appropriate with his peers, he was more appropriately interacting with peers, and he chose to sit next to certain preferred peers.
Ms. McGinnity also testified that Student has good imitation skills and for purposes of development of social skills, he benefits from the modeling by typical peers within the integrated pre-school setting. She opined that Student therefore has benefited from and would likely continue to benefit from exposure to typical peers within the integrated pre-school placement.
Ms. McGinnity and Ms. Vitale (Student’s speech-language pathologist) testified that Student uses and understands language in a meaningful manner—for example, in class he is able to verbally communicate in a meaningful manner his needs and wants, he answers multiple choice questions, he can talk about a non-present person, and by May 2010, he had progressed to the point that he could answer open-ended questions. Ms. Vitale testified that Student made effective progress in pragmatic speech during the speech-language therapy sessions, and that over the course of the year Student, increased his knowledge of the structure and use of language.
Ms. McGinnity testified that during the 2009-2010 school year, she provided approximately one hour of 1:1 instruction to Student each day during the afternoon, which was not observed by Ms. Timmel. Ms. McGinnity worked on developing academic readiness skills, and Student made progress in this area although she explained that he did not meet all of his academic readiness benchmarks in their entirety.
Ms. Kelley (Student’s physical therapist) testified that Student made effective progress in the areas of muscle strength and mobility. By May 2010, he was able to climb and descend stairs, climb a ladder and go down a slide.
Ms. Hefler and Ms. Spector-Brady (Student’s occupation therapy supervisor and occupational therapy assistant, respectively) testified that Student made effective progress during the school year with respect to those areas addressed by occupational therapy, particularly in developing and improving a pincer grasp, improvement in his scissors skills, improving his ability to pick up objects and not drop them, and improvement in his self-care skills (for example, putting on and taking off clothing).
Parents provided no probative evidence to rebut this evidence of Student’s progress. Parents argued that their son was not making educational progress and that his developmental delays were actually increasing, as evidenced by a comparison of the Early Intervention testing in February 2009 and Dr. Morgan’s neuropsychological evaluation test results. However, Parents are not educational experts, and they provided no expert testimony or report that compared these evaluations or otherwise supported Father’s contention. Although Parents argued, correctly, that there was no data provided by Georgetown that demonstrated Student’s progress, the lack of data does not assist Parents, who have the burden of persuasion, to demonstrate their son’s lack of progress.
I also note that the proposed IEP included discrete trial training which could have been implemented under the supervision of Dr. Pedego had this part of the IEP been accepted by Parents. In addition, Ms. McGinnity, who has substantial ABA experience and expertise, was prepared to revise Student’s toileting instruction and sought input and permission from Parents for this purpose, but Parents did not respond to Ms. McGinnity and therefore no changes were made regarding toileting instruction. Testimony of Ms. McGinnity.
In conclusion, I find that Student’s proposed IEP for the period from May 10, 2010 to the end of the academic year, although deficient in certain discrete areas, would have allowed Student to make substantial progress in many areas addressed by his IEP and would have allowed somewhat greater progress if Parents had accepted certain methodologies and otherwise cooperated with Georgetown. I also note the relatively short period (approximately six to seven weeks) that is at issue. On the basis of this evidence, I find that the inadequacies of the IEP are not so substantial as to warrant an award of compensatory relief.
Appropriateness of the IEP for the summer of 2010 .
Standards regarding eligibility and scope of services with respect to the summer differ from those standards applicable to the academic year and therefore require presentation of evidence that specifically addresses Student’s need for summer services.33 Parents provided no evidence as to the extent of Student’s need for summer services, and how those needs should be met. Parents therefore failed to meet their burden of persuasion regarding the inappropriateness of this part of the IEP.
Georgetown presented credible evidence regarding the appropriateness of its proposed summer program. Ms. Spector-Brady (who directs Georgetown’s extended school year program) testified that the summer program runs for six weeks, three days per week, from 9 AM to 2 PM. She explained that all of the related services for Student during the summer are implemented within the summer program classroom.
Ms. Spector-Brady further testified that during the summer of 2009, Student participated in and made effective progress in Perly Pal, which is Georgetown’s summer program. She further stated that Student would likely have similarly progressed had he participated in Perly Pal for the summer of 2010. However, because Student has been removed from school since May 10, 2010, he did not attend the summer program during 2010 and also did not receive the related services on his IEP that would have been provided within the summer program.
For these reasons, I find that the summer services for 2010, as proposed within the IEP, were appropriate.
Parents’ safety concerns .
What precipitated Parents’ withdrawal of their son from school were their concerns regarding their son’s safety. These concerns came to a head with the incident on May 10, 2010, as described above in Facts, pars. 27, 28.
Parents have reason to be concerned about their son’s safety in school. He has a history of choking incidents, a seizure diagnosis, low muscle tone and balance deficits, together with a low threshold for pain and limited ability to report injury or discomfort. Testimony of Father, Kelley.
Parents point to a series of incidents at school that occurred on January 27, 2010, March 9, 2010, May 7, 2010, and May 10, 2010, and generally between October through December 2009. The evidence regarding the incidents on these dates in summarized earlier in this Decision.
There is no evidence that, as a consequence of these or any other incidents at school, Student has ever been injured, other than a bump on his head as a result of slipping off a bean-bag chair on May 10 th . Neither the school nurse nor Parents’ physicians found any indication of any substantial injury to Student as a result of the head-bump. Student has been and would have continued to be (after May 10 th ) monitored by a 1:1 staff person while at school. I also note that as of December 2, 2009, all of Student’s 1:1 staff were appropriately certified in CPR and the Heimlich maneuver, and that Georgetown put in place a plan to monitor Student relative to his seizure diagnosis (and the plan was accepted by Parents). See Facts, pars. 17, 27.
Although there is no doubt that each incident relied upon by Parents reflects something of legitimate concern to Parents, a careful review of the record makes clear that neither any one of these individual incidents nor all of the incidents taken as a whole indicate that the school is unsafe for Student. The mere possibility of injury does not make the school unsafe. There is nothing in the record to indicate that Georgetown should have done something more than it was already doing in order to create a safe educational environment for Student as of May 10 th .
In rebuttal, Parents submitted a note from Student’s pediatrician, supporting Parents’ view that school was unsafe and that Student should remain home. Exhibit P-16. However, nothing in the record explains the basis for the pediatrician’s opinion, and the pediatrician did not testify. Without more, it is simply not possible to attribute probative weight to this note.
For these reasons, I disagree with Parents that Georgetown’s educational environment would have been unsafe for Student for the time period from May 10, 2010 through the summer program.
ORDER
Georgetown’s most recently-proposed IEP is not reasonably calculated to provide Student with FAPE in the least restrictive environment.
Georgetown’s IEP can be amended so that it is reasonably calculated to provide Student with FAPE in the least restrictive environment. For this purpose, Georgetown shall amend the IEP to include two hours per week of consultation services from an ABA specialist, and Georgetown shall re-draft the IEP to incorporate and reflect ABA principles, particularly where intervention or instruction is called for utilizing ABA methodology.34
Parents are not entitled to an out-of-district placement for the 2010-2011 school year in order that he receive FAPE, and Georgetown therefore need not place Student at Melmark.
Parents’ compensatory claims are denied.
By the Hearing Officer,
William Crane
Dated: September 9, 2010
Appendix A
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Georgetown Public Schools BSEA # 11-0291
ORDER
In order to apprise the parties in a timely manner of my findings in this case, this Order is issued in advance of a full Decision.
The issues addressed by this Order are whether Georgetown Public Schools’ (Georgetown) most recently-proposed individualized education program (IEP) is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment; if not, whether the IEP can be modified to meet this standard; and if not, whether Student’s placement in a private, out-of-district placement at Melmark would satisfy this standard.
This Order is issued 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 in this matter was held on August 24, 25, and 26, 2010 in Malden, MA before William Crane, Hearing Officer. The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-41; documents submitted by Georgetown and marked as exhibits S-1 through S-109; and approximately three days of recorded oral testimony and argument. Oral closing arguments were made on August 30, 2010, and the record closed on that date. The full Decision regarding this dispute will be issued no later than 25 days after the close of the record.
I have had an opportunity to review and consider the entire evidentiary record, as well as the arguments of both parties. On the basis of this review, I find that Georgetown’s most recently-proposed IEP is not reasonably calculated to provide Student with FAPE in the least restrictive environment.
I further find that Georgetown’s IEP can be amended so that it is reasonably calculated to provide Student with FAPE in the least restrictive environment. For this purpose, Georgetown shall amend the IEP to include two hours per week of consultation services from an applied behavior analysis (ABA) specialist, and Georgetown shall re-draft the IEP to incorporate and reflect ABA principles, particularly where intervention or instruction is called for utilizing ABA methodology.35
I further find that for purposes of implementation of said IEP, Georgetown has the capacity to develop an appropriate ABA-based, substantially-separate classroom placement for Student, starting at the beginning of the 2010-2011 school year.
For these reasons, I find that Georgetown need not place Student at an out-of-district program (i.e., Melmark) for the 2010-2011 school year in order that he receive FAPE.
At this time, I make no findings with respect to Parents’ compensatory claims. These claims will be addressed in the full Decision. I note, however, that if any compensatory relief is awarded Parents, this relief will not alter the above findings regarding the services and placement that Student is to receive pursuant to the above-referenced IEP relative to the 2010-2011 school year.
By the Hearing Officer,
William Crane
Dated: September 2, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
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
Ms. Timmel is a certified elementary school teacher and licensed educational psychologist at Mass. General Hospital who has substantial expertise and experience evaluating educational programs and providing educational consultation to families and school districts. Testimony of Timmel; exhibit P-12.
2
Georgetown’s behaviorist and physical therapist did not attend the meeting and were not excused by Parents. However, Parents put forth no evidence or argument as to the implications of their absence.
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
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided 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).
7
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).
8
MGL c. 71B, ss. 1, 2, 3.
9
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
10
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also 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”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).
11
Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (internal quotations omitted), quoting Rowley, 458 U.S. at 192.
12
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
13
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir.1993) (requiring that at a minimum the school district must provide student with “a meaningful, beneficial educational opportunity”), quoting Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984), aff’d 471 U.S. 359 (1985); Ferren C. v. School Dist. of Philadelphia , — F.3d —-, 2010 WL 2735716 (3 rd Cir. 2010) (“ at a minimum, the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential,” citing Rowley , 458 U.S. at 189 (internal quotations omitted)); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) ( “meaningful progress … is the hallmark of educational benefit under the [federal] statute” ).
14
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); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); 602 CMR 28.05(4)(b) (“The Team shall … include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”). Also, in the instant dispute, the School District’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits P-3, P-4.
15
Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008). See also Rowley , 458 U.S. at 202 (“ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”); Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267, 270 (1 st Cir. 2010) (upholding appropriateness of IEP where evidence demonstrated that student “was progressing at a level commensurate with her cognitive profile”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ); 603 CMR 28.02(17) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”)
16
MGL c. 71B, s. 1. See also 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).
17
Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
18
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st 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.”).
19
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” ).
20
Ali Pedego, PhD, is a Board Certified Behavior Analyst (BCBA) who is certified at the doctoral level, and who is highly experienced with ABA methodology and the development of educational programs that utilize this methodology. Testimony of Pedego, Dempsey; exhibit S-82.
21
Ms. Timmel also testified that Student did not interact with his peers, and he seemed to be bothered by proximity of peers and once pushed students during a free form activity, not for the purpose of hurting the other student but rather to separate himself from others. Ms. Timmel explained that Student is not intending to be negative and therefore she did not believe that Student should be characterized as having a behavior problem. Testimony of Timmel; exhibits P-11, S-39.
22
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1 st Cir. 1990) (internal quotations omitted).
23
20 USC 1414(e).
24
603 CMR 28.05(6); 603 CMR 28.06(2); 603 CMR 28.06(2)(d).
25
See, e.g., Sytsema ex rel. Sytsema v. Academy School Dist. No. 20 , 538 F.3d 1306, 1315 (10 th Cir. 2008) (“ court must analyze only whether the provisions of the IEP, as written, substantively comply with the Act”) (emphasis in original); Knable v. Bexley City School District , 238 F.3d 755, 768 (6 th Cir. 2001) (“must limit our evaluation of Bexley’s proposed IEP to the terms of the document itself, as presented in writing to the Knables”); Union School District v. Smith, 15 F.3d 1519, 1525 (9 th Cir. 1994) (court must restrict its analysis to the written IEP).
26
MGL c. 71B, s.3
27
In Re: Natick Public Schools , BSEA # 09-7499, 16 MSER 47 (2010).
28
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279, 288 (1 st Cir. 2008) ( parent’s unreasonable actions, which caused the IEP process not to be completed, may justify a denial of relief under the IDEA).
29
See 20 USCS § 1415(f)(3)(E)(2)(ii) (procedural violation must have “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child”).
30
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist . , 513 F.3d 279, 290 (1 st Cir. 2008) ( compensatory education is a “discretionary remedy”); Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
31
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
32
See, e.g., Lillbask v. Connecticut Department of Education , 397 F.3d 77 (2 nd Cir. 2005) (Congress did not intend to exclude from consideration any subject matter–including safety concerns–that could interfere with a disabled child’s right to receive a free appropriate public education).
33
Student’s right to summer services is governed by standards requiring that certain special education or related services are needed either to avoid regression or to avoid other loss of educational benefits accrued during the school year . 34 CFR 300.106; 603 CMR 28.05(4)(d)1. See also 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); Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).
34
The IEP re-drafting process shall occur consistent with Dr. Pedego’s testimony. Dr. Pedego testified that the IEP will be re-drafted subsequent to the Assessment of Basic Language and Learning Skills (revised) evaluation of Student and the development of his individual program binder. Dr. Pedego testified that this process would likely be completed within approximately ten weeks after the beginning of the 2010-2011 school year.
35
The IEP re-drafting process shall occur consistent with Dr. Ali Pedego’s testimony. Dr. Pedego testified that the IEP will be re-drafted subsequent to the Assessment of Basic Language and Learning Skills (revised) evaluation of Student and the development of his individual program binder. Dr. Pedego testified that this process would likely be completed within approximately ten weeks after the beginning of the 2010-2011 school year.