COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Aristotle1 and the Springfield Public Schools
BSEA #09-5043
Decision
This Decision is issued pursuant to M.G.L.c. 71B and 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 May 8, 2009, at the Agawam Public Library in Agawam, MA. Present for all, or parts, of the proceeding were:
Ms. A Parent
Matthieu Perry Clinician, Providence Hospital
Anabel Ruggeri MSPCC
Jose Candalario MSPCC
Aileen Sullivan-Pacella Psychologist – Springfield Public Schools
Debra Ericksberg Teacher – Springfield Public Schools
Nancy Gagnon Teacher – Springfield Public Schools
Hector Medina Teacher – Springfield Public Schools
Kimberly Crafts Teacher – Springfield Public Schools
William Limero Behavior Specialist – Springfield Public Schools
Carol Rivet Education Team Leader – Springfield Public Schools
Nancy Ritchia Supervisor of Special Education – Springfield Public Schools
Mary Anne Morris Chief of Pupil Services – Springfield Public Schools
Alisia St. Florian Attorney for Springfield
Bryan Clauson Attorney for Parent
Lindsay Byrne Hearing Officer – BSEA
The official record of the Hearing consists of: documents submitted by the Parent marked P-1 through P-3, P-5 and P-6; documents submitted by the School marked S-1 through S-11; and approximately 6 hours of recorded oral testimony. Both parties submitted written closing arguments by May 25, 2009 and the record closed on that day.
ISSUE2
Whether the Individualized Education Plan developed in March 2009 for this Student is inappropriate because it lacks a provision requiring school staff to physically restrain the Student if he attempts to leave the school building during the school day?
SUMMARY OF THE EVIDENCE
1. Aristotle is a twelve year old 6 th grade student. During the fall 2008 he had multiple disciplinary infractions resulting in a series of out-of-school suspensions. In November 2008, following serious threats of self harm, Aristotle was admitted to a psychiatric hospital for treatment. He was discharged with diagnoses of Post-Traumatic Stress Disorder and Depression. At the request of the Parent and as part of a special education eligibility determination process, Springfield Public Schools conducted a Functional Behavioral Assessment and a Psychological Evaluation when Aristotle re-entered the mainstream 6 th grade in January 2009 (P-1; P-2; Sullivan-Pacella).
2. An informal Functional Behavioral Assessment conducted on January 8, 2009 identified Aristotle’s problem behaviors as disruptive, insubordinate, physical and verbal aggression and bullying and vandalism during unstructured or unsupervised activities. Highly structured environments and 1-to-1 meetings with adults were found to be successful in redirecting and maintaining appropriate behavior (S-2).
3. Eileen Sullivan-Pacella, the psychologist for Springfield Public Schools, conducted a psychological evaluation on January 12, 2009. Ms. Sullivan-Pacella reported that the results of her standardized testing and her observations of Aristotle were consistent. She found Aristotle to be “extremely bright” with standardized measures of intellectual potential in the superior range. She noted that his academic achievement scores were all above grade level and that there was no evidence of “learning problems.” She recommended that a positive Behavior Intervention Plan be developed for Aristotle, that he receive counseling in school, and that the family engage in a variety of therapeutic supports outside school (P-1).
4. The Team met on January 22, 2009 and determined that Aristotle did not meet the eligibility criteria for special education. The Parent accepted the Finding of No Special Needs on January 28, 2009 (P-2; S-11).
5. Aristotle was rehospitalized in February 2009 and remained in acute residential treatment until March 11, 2009. The Team reconvened on March 20, 2009. It determined that Aristotle met the eligibility criteria for special education due to his emotional impairment. The Team recommended that he receive all educational services in a substantially separate classroom, known as “SEBS,” designed to support and address his emotional needs. The Parent accepted the proposed SEBS placement on March 27, 2009 (S-8). Aristotle began attending the SEBS classroom on March 30, 2009 (Crafts).
6. On March 31, 2009, Springfield Public Schools’ Behavior Specialist, William Limero, developed a Behavior Intervention Plan for use with Aristotle in the SEBS program (S-1). The Behavior Plan was designed to target two problem areas: anxiety and walking out. Mr. Limero testified that the Plan relied on environmental modifications, relationship building, and positive interventions to decrease Aristotle’s stress responses and to develop appropriate replacement behaviors. He further testified that, should the listed interventions fail to prevent Aristotle from walking out of the school building, a paraprofessional is authorized to follow Aristotle at an “eye on” distance to maintain his safety and to call for back-up assistance from community resources. Mr. Limero stated that physical restraint of any sort, indeed even touching, is clinically contraindicted for students diagnosed with post traumatic stress disorder, as Aristotle is. He noted that although all therapeutic staff is trained and certified in positive management techniques, including protective holds, physical restraints are used with children only in very serious emergencies. Aristotle’s Behavior Intervention Plan calls for the use of a protective hold only when he is in imminent danger of harming himself or others. Mr. Limero does not consider leaving school grounds with a safety escort to be the sort of imminently dangerous behavior necessary to justify the use of a protective hold with Aristotle (Limero; S-1). Mr. Limero noted that Aristotle has been able to maintain appropriate behavior since joining the SEBS classroom in March 2009 (Limero; S-9).
7. The Parent rejected the IEP in so far as it incorporated the Behavior Intervention Plan’s limited use of physical restraint. She requested that Aristotle be physically restrained any time he attempts to leave the school building during the school day. She testified that his behavior is unpredictable and dangerous in the community and at home, and therefore he needs to remain in the protected environment of school. She said that unless he is restrained Aristotle will quickly learn that he can leave school without consequences. The Parent is also concerned that Aristotle’s school is located in an area with significant gang activity and recruitment efforts which would be dangerous for Aristotle were he to leave school unaccompanied (Parent).
8. Kimberly Crafts is Aristotle’s teacher in the SEBS classroom. There are five students including Aristotle, with two paraprofessionals, and Ms. Crafts. In addition to weekly counseling sessions, the classroom program incorporates a positive behavioral system using both points and rewards and natural, logical consequences. Aristotle reached the highest level in the point system during the first week he attended SEBS and has remained at that level since. According to Ms. Crafts, he has not demonstrated any need for additional behavioral support or accommodations. Ms. Crafts described Aristotle as “very bright” and operating above his grade level in all academic subjects. He is motivated and works hard to achieve desired results. She has recommended that he begin transitioning to math in the mainstream, but his parent objects to any mainstreaming at this time (Crafts; Limero; S-9).
Ms. Crafts testified that based on her experience with Aristotle she would not recommend that physical restraint be a component of his Behavior Intervention Plan. She noted that she has never used a physical restraint on any student in the SEBS classroom (Crafts).
9. Eileen Sullivan-Pacella, the school psychologist most familiar with Aristotle, testified that due to Aristotle’s diagnosis of Post-Traumatic Stress Disorder the use of physical restraint is contraindicated. It would escalate his distress and his inappropriate response. Other types of interventions, such as talking, following, or calling familiar adults would be more appropriate and effective for Aristotle, particularly given his intelligence and verbal facility (Sullivan-Pacella).
10. Dr. Mary Anne Morris, Chief of Pupil Services for the Springfield Public Schools, testified that the district’s policies concerning the use of physical restraint with students in the public school setting follow the Massachusetts physical restraint regulations. Those regulations authorize physical restraint only when there is actual harm or a threat of imminent physical harm to the student or others and no less restrictive measures can avert or interrupt it. Dr. Morris acknowledged that some IEPs developed by Springfield for other students include the use of physical restraint under tightly defined circumstances in accordance with comprehensive clinical recommendations and with parental consent. She noted that those IEPs still limit the use of physical restraint to situations involving the threat of physical harm. For students such as Aristotle, who live with post traumatic stress disorder, the goal is to shape appropriate behavioral responses while avoiding any hands-on intervention. According to Dr. Morris, physical restraint precipitates crises and consequent emotional damage for individuals with post traumatic stress disorder. Therefore the use of physical restraint for non-emergent reasons is inconsistent with district policy. Dr. Morris testified that leaving school grounds is not an emergency constituting a threat of imminent physical harm to the student as less restrictive interventions such as blocking exits, following the student out of the building, calling for community assistance, etc can maintain the student’s safety (Morris).
11. Jose Candelario is Aristotle’s MSPCC mentor/advocate. He has worked with Aristotle for six months. He testified that he has never had to use physical restraints. He would not recommend using physical restraints with Aristotle even for out-of-control or self-injurious behavior. He would remain with Aristotle and call Emergency Services. Mr. Candelario added that Aristotle is doing very well in the community since beginning the SEBS program at the end of March 2009 (Candelario).
12. There are no clinical recommendations for the use of physical restraint of any sort at any time for any reason in this evidentiary record. Other than the request of the parent, there is no testimonial support for adding non-emergent physical restraint to Aristotle’s Behavior Intervention Plan.
FINDINGS AND CONCLUSIONS
The Parties agree that Aristotle is a student with special learning needs as defined by 20 U.S.C. § 1401 AND M.G.L.c. 71B and is thus entitled to receive a free, appropriate public education. The sole issue is whether the IEP developed by Springfield is inappropriate because it does not include a directive that staff may physically restrain Aristotle should he attempt to leave the school building during the school day. After careful consideration of the evidence presented at the hearing, and all applicable regulations, it is my determination that the 2009-2010 IEP and, more pertinently, the Behavior Intervention Plans referred to in that IEP, are reasonably calculated to ensure a free, appropriate, public education to Aristotle. My reasoning follows:
First, while Massachusetts regulations concerning the use of “restraints” permit school districts and parents to develop IEPs that include the use of physical restraint in situations other than imminent danger when such use is necessary to meet the student’s special education needs and ensure a free, appropriate, public education, the use of physical restraints in educational settings is disfavored3 . 603 CMR.46.07. The physical restraint regulations, which appear at 603 CMR 46.00 begin with a warning:
2) The purpose of 603 CMR 46.00 is to ensure that every student participating in a Massachusetts public education program is free from the unreasonable use of physical restraint. Physical restraint shall be used only in emergency situations, after other less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution.
To justify the proposed use of physical restraints in situations other than those which present a clear imminent danger to the student or others nearby it would be necessary for the Team to conclude: 1) that recommendations for this type of educational intervention have been made after a comprehensive evaluation of the student by an expert(s) in the field of the student’s disability; 2) that less restrictive methods of meeting the student’s educational needs had been unsuccessful; 3) that the educational benefit of using the disfavored technique clearly outweighed the potential for harm to the student; 4) and that the district had the appropriate facility, staff, and training to implement the proposed educational intervention.
There was no showing in this hearing that Aristotle needs physical restraint to achieve any educational objective. None of the witnesses who have provided educational or clinical services to Aristotle over the course of the last school year recommended the use of physical restraints for any reason. There are no evaluations or assessments in the record that support the use of physical restraints at any time with Aristotle. On the contrary, the uncontradicted evidence demonstrated that Aristotle has been making effective educational progress in his current SEBS placement without the use of physical restraints to maintain to his presence in the classroom. Futhermore, there is no persuasive evidence in this record that were Aristotle to leave the school building during the school day, with the escort and interventions set out in his IEP and Behavior Plans, that he would be at such imminent risk of serious harm as to justify the use of physical restraints pursuant to the Massachusetts Physical Restraint Regulations. 603 CMR 46.00. The preponderance of the evidence instead supports the conclusion that these “less intrusive” interventions can effectively maintain Aristotle’s safety outside the school building, thus avoiding any “emergency.” Therefore I find that there is no evidentiary support for the Parent’s request to include physical restraint as an approved intervention on Aristotle’s 2009-2010 IEP. The Team correctly concluded that the Parent’s request for physical restraint should be rejected. The resulting 2009-2010 IEP is reasonably calculated to meet Aristotle’s special education needs in the least restrictive setting. The Parent did not carry her burden of proving otherwise4 .
ORDER
The 2009-2010 IEP as developed by Springfield is reasonably calculated to ensure a free, appropriate public education to Aristotle.
July 6, 2009 __________________________
Lindsay Byrne, Hearing Officer
1
“Aristotle” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The Parent’s original hearing request filed on February 26, 2009, contained multiple requests for relief. This statement of the issue was one of two set out in a pre-hearing Ruling and Order issued on April 29, 2009. At the hearing the parties stipulated that the other outstanding issue had been resolved.
3
See Springfield Public Schools , 14 MSER 332 (2008); Springfield Public Schools , BSEA 08-3052, Sept. 12, 2008 (Berman); DESE Advisory, May 30, 2008.
4
Schaffer v. Weast, 546 U.S.49 (2005).