Special Education Appeals BSEA #00-3577
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Boston Public Schools BSEA# 00-3577
This decision is rendered pursuant to M.G.L. Chapters 15, 30A, and 71B; 20 U.S.C.§1400
et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on July 10, 11 & 12, 2000 at the Massachusetts Department of Education in Malden, MA. The record remained open for receipt of written final arguments until August 14, 2000.
Those in attendance were:
Frank Hernandez Psychologist, North Shore Children’s Hospital
Astrid Cordero Speech-Language Pathologist, Massachusetts General Hospital
Jenny Artiza Interpreter
Angelica Rossi Interpreter
Rosa Sanchez Interpreter
Pamela Gray Attorney for Parent/Child
Susan Wood Assistant Program Director, Boston Public Schools (BPS)
Fran Martuscello Assistant Program Director, BPS
Patricia Dervan Special Education Teacher, BPS
Martha Sullivan Speech-Language Pathologist, BPS
Eileen Farah Bilingual Speech-Language Pathologist, BPS
Eric O’Connor Attorney for BPS
Linda Campagna Court Reporter/Stenographer
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The record consisted of Parent’s Exhibits labeled P-1 through P-47; Boston Public Schools Exhibits labeled S-1 through S-18, excluding S-15; and approximately 13 hours of oral testimony.
STATEMENT/HISTORY OF THE CASE
Student is a multiply disabled 8 year old boy. He began his educational career in 1995 at age 3 in the Chelsea Public Schools under several 502.8 (c) Individual Education Plans. (See P-8, 9). Student’s family moved to Boston in November 1995 and Student began in the Boston Public Schools (BPS) at the Condon School. On February 29, 1996 BPS formally proposed a 502.4 Individual Education Plan (IEP) for Student at the Condon School which was accepted by Parent on March 7, 1996 (P-7). On February 28, 1997 the team proposed a 502.8 (b) IEP for Student at the O’Hearn School which was accepted by Parent on March 27, 1997 (P-6). On June 28, 1998 the team proposed a 502.4 IEP for Student at the Mattahunt School (P-5) which was accepted by Parent (testimony Mother). Although this IEP was scheduled to run through June 1999, BPS did unscheduled re-evaluations and updated reports in December 1998 and January 1999. (See P-20, 22). On January 12, 1999 the team proposed a 502.4 IEP for Student at the Ohrenberger School which was accepted in part and rejected in part by Parent on February 5, 1999 (P-4). Parent also requested an independent evaluation (P-4). An independent evaluation was performed at Franciscan Children’s Hospital (FCH) consisting of a psychological evaluation in March 1999 (P-14; S-3); and a speech-language evaluation and occupational therapy evaluation in June 1999 and July 1999 respectively (P-16; S-4). On April 28, 2000 the team proposed a 502.4 IEP Student at the Ohrenberger School (P-3; S-1). This IEP was “run” on 5/25/00. On 6/6/00 another IEP was “run” (P-2). The only apparent difference between this IEP (P-2) and the IEP “run” on 5/25/00 (P-3; S-1) is the added input of the adaptive physical education teacher (who was not present at the 4/28/00 team meeting) in the form of an added adaptive physical education goal, objectives and 1 additional hour of adaptive physical education services. On June 20, 2000 the team formally reconvened to consider the adaptive physical education recommendations cited above; and to consider the bilingual assessment which had been done by BPS’ Ms. Farah (P-19; S-14). As a result of the 6/20/00 reconvening of the team, BPS again proposed a 502.4 IEP at the Ohrenberger School (P-1; S-2). Also in June 2000 Student was administered a speech-language assessment at Massachusetts General Hospital by Ms. Cordero (P-18).
Meanwhile, on March 6, 2000 Parent had filed a hearing request with the Bureau of Special Education Appeals. An automatic hearing date was scheduled for March 23, 2000. BPS requested a postponement and a pre-hearing conference. A pre-hearing conference was scheduled for April 4, 2000. Parent then requested a postponement and the pre-hearing conference was rescheduled for April 25, 2000. BPS then requested a postponement and the pre-hearing conference was rescheduled for May 1, 2000 and took place on that date. On May 1, 2000 a final pre-hearing conference was scheduled for June 28, 2000 with hearing dates for July 10, 11, 12, 2000. The final pre-hearing conference took place, as scheduled, on June 28, 2000 and the hearing took place, as scheduled, on July 10, 11, 12, 2000.
ISSUES IN DISPUTE
1. Does BPS’ proposed 502.4 IEP covering 4/00 to 1/01 appropriately address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment?
2. If not, are Parent’s proposed changes/additions/modifications to BPS’ proposed IEP necessary to appropriately address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment?
3. Did BPS discriminate against Student by failing to provide him services under 29 U.S.C. § 794 (Section 504); M.G.L. Chapter 71A (Transitional Bilingual Education Act); and Lau v. Nichols 414 U.S. 533 (1974) as codified under the Equal Education Opportunity Act 20 U.S. C. §1703 (f).
4. Is Student entitled to compensatory services?
STATEMENT OF POSITIONS
Parent’s position is that BPS’ proposed IEP covering 4/00 to 1/01 is inappropriate to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. Parent contends that the IEP requires a number of changes/additions/modifications to make it appropriate to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. Parent contends that BPS has violated state and federal special education law; and has discriminated against Student by failing to provide him services under 29 U.S.C. §794; M.G.L. Chapter 71A; and 20 U.S.C. §1703 (f). Parent contends that Student is entitled to 4 ½ years of compensatory services from the time he entered BPS.
BPS’ position is that its proposed IEP for Student covering 4/00 to 1/01 is appropriate to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. BPS contends that the changes/additions/modifications to the IEP proposed by Parent are not necessary or warranted to make it appropriate to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. BPS contends that it did not violate state and federal special education law nor did it discriminate against Student under M.G.L. c. 71A or 29 U.S.C. § 794. Finally, BPS contends that Student is not entitled to compensatory services; and that even if compensatory services were warranted they should be limited to 3 years under In re: Fall River Public Schools 5 MSER 183 (1999).
PROFILE OF STUDENT
Student is a 8 year old boy. Neurologically Student has been followed by Children’s Hospital since late 1995 and since 1997 by David Union, M.D. He has a long standing right hemiplegia and underlying dysgenesis and partial agenesis of the corpus callosum; a seizure disorder in the context of spastic quadriplegia; and a significant behavior disorder. He is currently on Tegratol for seizures. (See P-21).
Student is severely to profoundly mentally retarded with severe developmental global delays in all areas of functioning. He displays autistic like tendencies. Student was psychologically evaluated at FCH in March 1999 by Psychologist Frank Hernandez. Based upon the Bayley Scales of Infant Development (BSID) Student’s cognitive/intellectual skills, overall reasoning, memory, and visual motor skills fall between a 10-12 month level with some scattered play and reasoning skills up to a 16 month level. Based upon the Vineland Adaptive Behavior Scales (Vineland) Student’s communication skills were found to be at a 1 month age equivalent level; daily living skills at a 12 month level; socialization skills at a 1 month level; and motoric skills at a 19 month level. Maladaptive/disruptive behaviors include biting and scratching himself and others, hitting, throwing objects and mouthing objects. (See P-14; S-3; testimony, Hernandez; Mother).
Student received a speech-language evaluation at FCH in June 1999 (P-16; S-4). FCH speech-language pathologist David Furman found Student to have a profound communication impairment characterized by a lack of symbolic communication skills, limited response to voice or understanding of commands, lack of symbolic use of objects and poor social interaction skills. Student also received an occupational therapy assessment at FCH in July 1999 (P-16). FCH occupational therapist Ray Levitre found Student to present with global delays for cognition, sensorimotor, fine motor, visual perception and visual motor skills. He was dependent for activities of daily living, required constant supervision, demonstrated poor social skills and exhibited self stimulatory and self injurious behaviors throughout the evaluation. (See P-16).
BPS had performed evaluations of Student in December 1998 and January 1999 consisting of a social assessment; a psychoeducational assessment; an occupational therapy assessment; a physical therapy assessment and a speech-language assessment. (See P-22). The results were largely consistent with the functioning levels and results obtained by FCH cited above. Summarizing some highlights of the BPS evaluation, Student is not toilet trained and is still in diapers; feeding must be assisted/supervised at all times; while Student is ambulatory he requires 1:1 assistance to move throughout the school because he is unable to stand or walk in a line, becomes impulsive and will run towards things that excite him without regards to obstacles and safety; and he is able to ascend and descend stairs but requires 1:1 assistance to prevent falling and because he has no concept of safety. (See BPS occupational therapy assessment). Delays in gross motor skills development impact his functional independence. He requires a setting that will insure the safety of himself and others during physical aggressiveness or when on stairs. A Rifton chair is recommended for classroom use to decrease his physical access to others and to provide a safe environment for himself. (See BPS physical therapy assessment).1 An oral-motor/feeding program should be established. (See BPS speech-language evaluation).
SCHOOL’S PROPOSED PROGRAM
BPS’ proposes that Student be educated under a 502.4 IEP from 4/00 to 1/01. Under this IEP in the Student Profile it is noted (P-1; S-2):
Areas of concern: communication, class attendance, independent functioning, impulse control, physically abusive/others, toilet-trained, sensory motor integration, total depend[ance]/all ADL skills, motor planning.
Under the Student Information section of the IEP it is noted:
He is functionally non-verbal, ambulates with some difficulty and exhibits minimal self help skills. He is a medically involved student. He has a history of poor school attendance. [Student] uses an augmentative communications program that includes signs, pictures, and language experience. He exhibits good focusing and attending skills. He appears to make visual associations.
He enjoys activities involving pictures. He is fascinated with the computer, but he requires 1-1 assistance to be successful. He loves music. His interactive behaviors with both adults and peers can be inappropriate. He can become aggressive toward himself and others; he will grab, pull or mouth classroom items, and bite others and himself. These behaviors have decreased during this school year. [Student] requires much assistance in all areas of daily living skills. He requires assistance dressing, eating, bathing, and using the toilet.
[Student] has made much improvement in his ability to follow a routine. [Student] has made significant feeding gains since entering the Ohrenberger. He is much more compliant when having his diaper changed.
Under the Instructional Profile and Additional Instructional Profile Information sections of
the IEP it is noted:
The student’s approach to learning is through: Multi-sensory approach.
Instructional approaches that facilitate successful learning for this student include: Structured class, away from friends, constant surpevision, repetition, hand over hand assistance, practical experience, frequent physical contact with teacher, positive reinforcement, behavior management.
[Student] will requires a small group, highly structured classroom for students with multiple handicaps. He needs consistent attendance at school. He responds well to a structured, predictable routine. He benefits from use of augmentative communication boards. He needs 1-1 hand over hand assistance when using equipment. He responds positively to use of sign language. Pictures accompanied by hand signs are currently used for “drink” and “eat”. He needs prompts to bring food to his mouth when eating. He is working on sign for “more”.
He can drink from a cup with assistance, and he has begun to chew foods of varying textures. [Student] enjoys sensory play. He can become overstimulated however, and he will sometimes require his own quiet space, especially when feeding. When walking in classroom or throughout the school he is closely monitored for safety. He will need a continued sensory motor program that incorporates strengthening activities. A communication log between home and school will assist in monitoring progress and concerns.
Under the School Day/School Year section of the IEP there are no modifications to the length of Student’s school day or school year i.e., no extended day or extended year services, although BPS offered Student a summer program during the 1999-2000 summer.
Under the Special Education Service Delivery section of the IEP Student is provided 25 hours of educational services per week. Student would receive 18.45 hours of substantially separate special education services with the substantially separate special education teacher in the areas of behavioral/emotional/social services; ADL skills; perceptual training; and communications. Outside of this classroom Student would receive the special education services of speech services for ½ hour, 2 times per week; occupational therapy for ½ hour, 3 times per week; physical therapy for ½ hour, once per week; and adaptive physical education for ½ hour, 2 times per week. Student would spend 2 hours, 15 minutes per week in non-academic school activities such as lunch. Speech services consultation to the teacher/service providers is provided for ½ hour, once per month.
Student’s special education teacher during the 1999-2000 school year has been Ms. Dervan who has a bachelor’s degree majoring in mental retardation/special education; a master’s degree specializing in emotional disturbances and learning disabilities; and a certificate of advanced educational studies specializing in severe curriculum. Ms. Dervan is certified in intensive special needs; special needs prekindergarten to grade 9; special needs grades 5-12; and elementary education. Student’s speech-language pathologist is Ms. Sullivan who has her bachelors and masters degrees in speech-language pathology and is a licensed speech-language pathologist with augmentative communications training and experience.
The class size has varied over the last school year from 4-5 students. The paraprofessionals in the class have varied from 1-2. The Staff (including teacher) to student ratio has varied from 2:4 up to 3:5 and most recently has been 3:4 with one of the paraprofessionals assigned to the class being bilingual Spanish. (See P-1, 19, 41, 42, 43, 44, 45, 46; S-2, 5, 6, 8, 9, 14, 16; testimony Dervan; Sullivan).
PARENT’S PROPOSED PROGRAM
Parent proposes that a number of changes, additions and modifications must be made to Student’s IEP/special education program. They include: 1) A bilingual program with a bilingual teacher; 2) A bilingual speech-language pathologist; 3) A structured behavior management program both in school and at home; 4) A doctorate level or highly experienced behavioral specialist to develop and oversee Student’s behavioral plan, with such behavioral specialist on sight or available at all times for consultation; 5) A 1:1 bilingual aide; 6) An in-home component to train Mother to implement strategies to modify Student’s behavior/teach skills in the home and to carryover the behavioral management program in the home; and 7) A summer program.
(See testimony, Hernandez; Cordero; P-14, 15, 17, 18; S-3, 10).
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Student is a child with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature and manifestations of Student’s special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon 3 full days of oral testimony, the extensive written documentation introduced into evidence, and a review of the applicable law, I conclude that:
1. BPS’ proposed 502.4 IEP covering 4/00-1/01 is inappropriate, as written, to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment.
2. A number of Parent’s proposed changes/additions/modifications to the IEP are necessary to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment, while several proposed changes/additions/modifications are not necessary to address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment.
3. BPS did not discriminate against Student by failing to provide him services under 29 U.S.C. § 794; M.G.L. c. 71A; or 20 U.S.C. § 1703 (f).
4. Student is entitled to compensatory services for the time period, approximately September 1998 to January 1999, that he attended the educational program at the Mattahunt School, but for no other time periods.
My analysis follows.
I. and II.
During the 1999-2000 school year under his last agreed upon IEP, I find that Student made
substantial progress in ADL skills and behavioral skills. Initially Student would spit food out, push it, put it back into his mouth and then suck his food down with no rotary chewing, unable to eat much solid food. By the end the school year with Ms. Dervan feeding him daily on a 1:1 basis with prompts, cues, signing and massaging his cheeks and under his chin, Student was no longer spitting his food out, was using a rotary chew, had expanded the amount/types of food he was able to eat, was chewing solids and meat and was using a fork/utensil (guided to his mouth). In terms of drinking Student went from Ms. Dervan holding the cup to Student holding the cup with teacher guidance. Toileting progressed from 2 people necessary to diaper Student( one to diaper and one to hold Student in place) to following a set routine with Student sitting on the potty and then teacher independently diapering him. Tooth brushing progressed from Student’s refusal to open his month to opening his mouth and allowing Ms. Dervan to hold Student’s hand and brush his teeth hand over hand. Similar progress was reported in hand washing, climbing into furniture such as his Rifton chair, leaving the classroom and transitioning into therapies, transitioning to the bus after school, taking off his coat and during circle time and class activities. Behaviorally, Student went from biting, scratching and pulling the hair of Ms. Dervan to decreases in such behaviors and days of no such incidents with Ms. Dervan’s cueing, prompting, signing and anticipating with Student. (See testimony, Dervan; S-5, 9; P-41, 42, 43, 44). For a child with such severe to profound global disabilities in all areas of functioning, I find such progress to be highly significant.
I find that such progress was made despite Student’s abysmal attendance. Between September 1999 through April 7, 2000 out of a total of 131 school days, Student was present on only 60 days (46% attendance) and absent 71 days (54% absence). (See S-6). Additionally, on the days that Student did attend, he was almost always tardy, usually arriving over 1 hour after the start of the school day (testimony, Dervan). As a result of such frequent absences with consecutive days of attendance a rarity, valid baseline data was impossible to gather (testimony, Dervan). During the 1999-2000 school year Student was scheduled to receive speech/language therapy 2 times per week with Ms. Sullivan. Due to absences and tardiness, Ms. Sullivan saw Student only 6-7 times for 1:1 therapy and approximately 8 times for small group therapy or only about 15 times over the entire school year. Given such an attendance record, I find Student’s progress to be all the more remarkable.
I find Ms. Dervan to be an extraordinarily talented teacher who utilizes all of the resources at her disposal, using all possible modilites and methodologies including prompting, cueing, signing, communication boards with both photographs and pictures, and limited verbalizations. Further, I find that Ms. Dervan utilizes Appied Behavioral Analysis (ABA) techniques including targeting behaviors to be worked upon, attempting to gather baseline data as much as possible given Student’s sporadic attendance, task analysis, breaking down every task systematically, modeling techniques such as hand over hand assistance, constant repetition, and positive reinforcement. Those stimuli which Student responded to were incorporated into the repertoire of Ms. Dervan’s teaching and shared with all staff who worked with Student. I find that Ms. Dervan also did lots of Parent training, modeling and sharing her techniques with Mother who often spent short periods of time up to large portions of the school day in the classroom. Ms. Dervan also sent a Parent communication book home every day Student was in class and telephoned Parent on those days Student did not come to school. (See testimony Dervan; Mother).
However, Ms. Dervan’s access to/consultation with a BPS behavioral specialist, Richard Asztolos who she found to be helpful, was only approximately one per month. Ms. Dervan testified that she would benefit from and be an even more effective teacher with more frequent consultations. Psychologist Hernandez observed Ms. Dervan, her classroom, and the therapists working with Student on April 28, 2000 (P-17; S-10). Dr. Hernandez testified that he found Ms. Dervan and the therapists working with Student to be extremely dedicated, assisting Student in every way they could, and with Ms. Dervan utilizing redirection and differential reinforcement (ABA techniques) effectively. However, Dr. Hernandez also testified that a more sophisticated shaping paradigm with contingencies of that paradigm and a contingent schedule of reinforcement delineated to all of Student’s service providers was necessary in order for Students to generalize gains within the school environment and to others settings such as the home. Dr. Hernandez testified that Student requires a more extensive, comprehensive, integrated behavioral plan; and that a doctorate level or otherwise highly experienced behavioral specialist is necessary to oversee Student’s behavioral program and either be on-site or available for immediate consultation to the teacher, as well as be able to consult with Mother in the home. Dr. Hernandez also testified that Student should receive a 12 month extended year program with the same type of program as during the school year extended into the summer months. (See testimony, Hernandez; FCH psychological evaluation- P14, 15; S-3; Hernandez observation- P-17; S-10).
Based upon the totality of evidence presented and the severity and complexity of Student’s
profound global disabilities, I conclude that Student’s program requires a doctorate level and/or highly experienced behavioral specialist to observe Student in the BPS program over time; to develop with Ms. Dervan a more formalized, comprehensive and intensive behavioral program to be implemented consistently across all areas within school and carried over into the home; and to oversee/regularly monitor such behavioral program to make any necessary adjustments. I further conclude that such behavioral program needs to be extended into/implemented within the home and that Student requires his school year program extended over a 12 month period. Until Student’s negative behaviors are minimized and appropriate behaviors are maximized, Student will be unavailable to learn up to his limited capacity to do so. I conclude that such behavioral specialist should be available to evaluate/observe Student on an extended basis for at least 3-4 weeks while the comprehensive behavioral plan is developed. Thereafter, such behavioral specialist should observe Student and consult with Student’s service providers for several hours on at least a weekly basis. Such behavioral specialist should be available to demonstrate the behavioral plan and to consult with Mother in the home for at least several hours on a monthly basis. Unfortunately none of these provisions are provided in BPS’ proposed IEP for Student.2 I conclude that all of these provisions must be specifically incorporated into Student’s IEP.
The other changes/modifications/additions sought by Parent include a bilingual
program with a bilingual teacher; a bilingual speech-language pathologist; and a 1:1 bilingual aide. A bilingual aide was assigned to Student’s classroom towards the end of the 1999-2000 school year but was not specified in the proposed IEP. Ostensibly, BPS would continue to provide a bilingual aide to Student’s classroom. Parent presented two expert witnesses in support of her position – Psychologist Hernandez and Speech-Language Pathologist Cordero. (See P-14, 15, 17 and S-10, 17 for Dr. Hernandez’s psychological evaluation and classroom observation; see also P-18 for Ms. Cordero’s evaluation). Along with Ms. Dervan and Ms. Sullivan, Student’s speech-language pathologist, BPS presented as an expert witness BPS Bilingual Speech-Language Pathologist Farah in support of its position that such changes are not necessary to Student’s IEP. ( See P-19; S-14 for Ms. Farah’s Bilingual Speech-Language Consultation).
I do not find Dr. Hernandez’s testimony, evaluation or observation to be either persuasive or
credible on the above cited bilingual issues. Nor do I find Ms. Cordero’s evaluation or testimony to be either persuasive or credible on these bilingual issues for the reasons set out below.
Dr. Hernandez did his FCH evaluation of Student in March 1999 (P-14; S-3). Although
noting that Student is Hispanic, Dr. Hernandez made no recommendation for a bilingual program, bilingual teacher, bilingual speech-language pathologist or 1:1 bilingual aide in his evaluation. Indeed, there is absolutely no mention of any of these items anywhere in his evaluation.
Dr. Hernandez testified that such specification was obvious. However, Dr. Hernandez also testified that such specification is in most of his reports. Yet such specification is entirely omitted in his evaluation of Student.
Interestingly, Dr. Hernandez wrote an undated: To whom it may concern addendum (P-15; S-3) to modify his March 1999 evaluation. Dr. Hernandez testified that this addendum was written many months after the original March 1999 evaluation. The fax printing on the top of P-15 indicates that the addendum was sent on December 14, 1999 or approximately 9 months after the original evaluation. Dr. Hernandez had not seen or evaluated Student since March 1999. He wrote several clarifying sentences about other areas of his evaluation having nothing to do with the bilingual/Spanish language issue. He concluded his addendum with the following sentences: “His instruction should be provided in Spanish”. The addendum provided no justification or rationale for this sentence. Upon cross-examination Dr. Hernandez testified that such addendum was produced after conferring with Parent’s counsel.
This BSEA appeal was filed on March 3, 2000. On April 24, 2000 Dr. Hernandez did his observation of Student’s classroom ( P-17; S-10). The first line of this report states that the referring agency was Parent’s counsel. This report is replete with references to BPS professionals’position that a bilingual teacher/program was not necessary given Student’s situation and Dr. Hernandez’s “new” position that Student receive as much Spanish instruction as possible. However, even in this observation and consultative report Dr. Hernandez notes:
[Student’s] current language skills (both expressive and receptive) are so limited that the argument that it is impossible to empirically demonstrate his increased responsiveness to Spanish could be made.
Dr. Hernandez responded to the following question by Parent’s attorney with the following answer:
Q: Given the lack of research, is it still your testimony that he should receive it, instruction in Spanish?
A: I think he should receive instruction in Spanish because I think that there is some evidence that implies that he would preferentially benefit in Spanish rather than English. I don’t think – there is no evidence that says he is – that either language will be favorable to him . I think there is evidence that implies that he will benefit from Spanish instruction or he might actually be more prone to benefit from Spanish instruction than from English instruction. Emphasis added.
Dr. Hernandez also testified that he needed to put two or three articles of research together to come to his opinion; that such articles did not address the issue of language acquisition or bilingualism for children with severe disabilities; that these articles might not be applicable to the issues of this case; and that:
“ You know this is really a debatable topic because, again, there’s not a whole lot of research when it comes to someone so handicapped and so compromised.”
In June 1999 Student received speech-language evaluation at FCH by speech-language
pathologist David Furman (P-16; S-4) as part of the same team evaluation at FCH that did Student’s psychological and occupational therapy evaluations. Dr. Hernandez testified that he and Mr. Furman always touched base prior to their evaluations and always reviewed each others reports after their evaluations to see if they came to the same conclusions. Dr. Hernandez was sure that they had done so in Student’s case. Mr. Furman’s evaluation indicates that he had collected information from Dr. Hernandez, who had evaluated Student earlier. Mr. Furman also referenced Dr. Hernandez’s evaluation in his own evaluation. Mr. Furman found, as did Dr. Hernandez in his evaluation, that Student’s receptive language skills were profoundly low with Student failing to respond to simple commands such as “come here”, “follow me”, or “sit down”. Similarly, both found Student’s expressive language skills to be essentially non existent with a total lack of spoken language; that
Student does not produce any words but only monosyllabic vocalizations/sounds/grunting; and that Student does not demonstrate any use of symbolic gestures. Mr. Furman referenced that fact that although Spanish is the primary language of the home that Student’s siblings speak fluent English and prefer to use English when playing.
There are absolutely no recommendations in Mr. Furman’s FCH speech-language evaluation that Student requires a bilingual program, a bilingual teacher to instruct him, a bilingual speech-language pathologist or a bilingual aide; nor are there any such references whatsoever anywhere in his report . Mr. Furman’s primary recommendation was (P-16; S-4):
[Student] should be placed in a highly structured, specialized program for children with
autism. His class should have a small student-to-staff ratio, curriculum focused on activities of daily living and basic social interaction and use of simplified language, presented via multiple modalities (i.e. Total communication), all centered around a rigid routine. Emphasis added.
Mr. Furman’s 5 th recommendation states:
All members of [Student’s] education team including teachers and therapists should communicate regularly, with the help of a Spanish interpreter, with [Student’s] mother in order to update her on his progress and to share suggestions for carrying over therapeutic techniques used at school to his home environment. Emphasis added.
I conclude that if Mr. Furman had contemplated that Student should be educated in a bilingual program with a bilingual teacher and a bilingual speech-language pathologist there would be no need for a Spanish interpreter when communicating with Mother. Based upon Mr. Furman’s omission of any recommendation for a bilingual program, teacher, speech-language therapist or aide; based upon his recommendation for a total communication program; and based upon his recommendation for Student’s teachers and therapists communicating with Mother via a Spanish interpreter; I conclude that speech-language pathologist Furman did not believe, in his professional opinion, that such bilingual components were necessary and/or appropriate given Student’s unfortunate situation.
Based upon the above analysis regarding Dr. Hernandez’s evaluation, observation and testimony; and based upon the above analysis regarding Mr. Furman’s speech-language evaluation; I conclude that there were no recommendations from the FCH independent evaluation that Student required a bilingual program with a bilingual teacher and a bilingual speech-language pathologist. I conclude that a reasonable inference can be drawn that such bilingual recommendations from Dr. Hernandez emerged many months after his evaluation of Student only after consultation with Parent’s counsel and in subsequent preparation for hearing to support Parent’s position. Based upon the above analysis and Dr. Hernandez testimony cited above, I further conclude that his bilingual recommendations are far from convincing and clearly do not meet the tests of either preponderance of the evidence or substantial evidence.
Ms. Cordero performed a speech-language evaluation of Student on June 13, 2000 (P-18)3 which was initially presented to BPS and the Hearing Officer on the first day of hearing. Ms. Cordero evaluated Student using a combination of formal measures, clinical observation and parental report. On the Rosetti Infant-Toddler Scale (Rosetti) which is not normed, Student’s receptive language comprehension skills were found to fall at the 12-15 month level reflecting a profound impairment in his language comprehension abilities. Student’s expressive language skills fell at the 6-9 month level also reflecting a profound impairment in his communication skills. Ms. Cordero reported that “Information was presented in Spanish although opportunities were certainly provided in English”. Ms. Cordero’s recommendations include a bilingual classroom where the primary language of instruction is in Spanish; a bilingual speech-language pathologist providing therapy 4 times per week for 30-45 minutes each session; and a bilingual aide. No rationale, reasoning or justification was presented in this evaluation for these recommendations other than the following 2 sentences:
It should be noted that all single words noted here were presented [Student] today in Spanish. Additional words (body parts, clothing, furniture) were presented to [ Student] in English but did not elicit a response. (See P-18).
Ms. Cordero testified that the primary language of instruction should be Spanish:
because the research has demonstrated that children who can establish a strong foundation in their native language facilitate learning English as a second language.
Ms. Cordero testified that the research upon which she was relying concerned language acquisition in bilingual children at a 1 year level; but that 1 year level was of cognitively intact children, not severely disabled children; and that the research does not address the issue of children, of whatever age, who are severely disabled and functioning at a 1 year level. Ms. Cordero also testified that information needed to be presented to Student at a very, very basic toddler level using simple words; that spoken language would never be Student’s sole mode of communication and that she would not be shocked if Student never said an intelligible word; that an English speaking teacher could learn the simple Spanish words that should be taught to Student in a more structured, formalized lesson but not incidental language i.e., language picked up in the environment; that if there were a Spanish speaking paraprofessional in the class incidental learning could occur; and that she had never observed Student in his class or receiving speech-language therapy at BPS.
Ms. Cordero further testified that she used English to see if Student had a higher level of receptive skills (body parts, clothing and furniture) but that she did not use Spanish to see if Student had those higher receptive skills in Spanish because Mother informed her that Student did not have the ability to identify those words in Spanish. However, for the lower level receptive skills the only language in which she tested Student was Spanish and that she did not address lower functioning receptive skills in English at all. The following exchange then took place between the Hearing Officer and Ms. Cordero:
H.O: So how would you know if he had lower level receptive skills in English if you didn’t also test him in English at those lower level skills?
Witness: Because the majority of my testing was done in Spanish. I chose to test more in Spanish then I did in English.
H.O: I guess I’m confused then. How can you say it’s best to teach [Student] in Spanish if there was no effort to determine what he could understand receptively at a low level in English.
Witness: I’m not sure.
Neither is the Hearing Officer. Based upon her evaluation and testimony, I find that the only thing that Ms. Cordero determined was that Student does not know certain words in English that he also does not know in Spanish. I find that Ms. Cordero did not determine whether Student understands in English the lower level words/concepts which he purportedly understands in Spanish. Therefore, I conclude that Ms. Cordero had no basis for comparison of Student’s receptive language skills between English and Spanish. I also find that the research upon which she relied does not address the issue of bilingual language acquisition in severely disabled children and is not relevant to this case. I conclude that Ms. Cordero’s bilingual recommendations are far from convincing and clearly do not meet either the preponderance of the evidence or substantial evidence test.
In summary, regarding Parent’s position that Student requires a bilingual program, bilingual teacher and bilingual speech-language pathologist, I conclude that both the evaluations and the testimony of Dr. Hernandez and Ms. Cordero are neither credible nor persuasive; and that even their combined testimony and evaluations do not meet either the preponderance of the evidence or substantial evidence tests.
Ms. Farah is a bilingual speech-language pathologist in BPS who also provides bilingual assessments and consultations to other school systems in Massachusetts. She provided an observation of/consultation to Student within his BPS classroom on 2 separate days, June 8 & 19, 2000 for a total of 8-9 hours. The purpose of this observation/consultation was to determine whether Student’s communication development would be enhanced by a greater emphasis on Spanish as the language of classroom instruction. Ms. Farah also reviewed the most recent reports from Student’s speech-language pathologist, Ms. Sullivan (P-46; 5-8), as well as Dr. Hernandez’s report (P-l7; S-10). Ms. Farah obtained information from Mother (who was present for both days of Ms. Farah’s observation/consultation); Ms. Dervan; Ms. Sullivan; the occupational therapist; and the physical therapist who is bilingual and uses Spanish in her physical therapy sessions with Student. Ms. Farah’s report (P-19; S-14) noted the following salient points in her summary and recommendations:
[Student] is non verbal, and a total communication approach is being implemented at his school due to the severity of his cognitive and language deficits. He is exposed to both English and Spanish in both the home and school environments, although there is more Spanish used in the home, and more English used at school….
[Student’s] language development is severely impaired , both receptively and expressively, in both the primary language of the home(Spanish) and the primary language of the classroom (English). [Student’s] language development needs are better conceptualized as communication development needs, and therefore go beyond issues of specific language of instruction. The total communication approach being implemented takes into consideration his home language and culture by modeling Spanish as well as English words, and accepting and reinforcing Student’s attempts at communication which to date have been gestural, but not vocal or verbal….
[Student] is unable to process language, whether English or Spanish, beyond the single word and short phrase level, and even at this level, comprehension is severely limited and highly context bound. Fluent bilingual professionals are not considered to be necessary in terms of educating [Student] in the classroom.
The primary emphasis, however, needs to be placed on developing a functional communication system (natural gestures, signs, photographs, pictures, objects, word approximations) which can be used with both primarily English speaking and primarily Spanish speaking peers, teachers, family members, and others in the community. A speech-language pathologist skilled in augmentative communications, such as [Student’s] present speech pathologist, is the most appropriate professional for managing [Student’s] communication program.
There is no need to translate English to Spanish and vice versa, or to provide language input at the sentence or discourse level in either language at this time, since [Student] is not able to process either language at more lengthy/complex levels, and is cognitively unaware that two separate languages are being spoken. Comprehension is very limited in both languages and is context-bound.
Ms. Farah testified that the question of a bilingual program, bilingual teacher, and bilingual speech-language pathologist is not even relevant for the following reasons: 1) Student is so profoundly impaired receptively, expressively and in non-verbal communication areas; 2) Student does not have a dominant language i.e., he does not have functional language skills in either Spanish or English; 3) that the role of spoken language with regard to Student’s development is more a role of sensory stimulation but that spoken language will not be the route to more effective communication; and 4) that at his profoundly impaired level that his mode of receptive and expressive communication is going to be through gestures, through signs, through pointing at photographs and pictures such as via a communications board, and by using real objects to convey his communicative intent i.e., a total communications/augmentative communications approach. Ms. Farah testified that rather than 5 periods of speech-language therapy per week (as recommended by Ms. Cordero), Student’s communication program needs to be integrated into everything he does in the classroom during the day i.e., a multi-disciplinary team approach where his communication needs are not fragmented from what happens in the classroom. Ms. Farah testified that input to Student should be very concrete with short, single words tied to the immediate context; and that the focus of his communicative development to learn to communicate functionally needs to be placed upon a total/augmentative communications system. (For the work done and progress with Student in BPS regarding development of his communication skills and a total/augmentative communications approach see the testimony of his speech-language pathologist, Ms. Sullivan; P-46; S-8; see also testimony, Ms. Dervan; S-9).
I find the report and testimony of Ms. Farah to be both credible and persuasive. She observed Student over an extended period of time over several days within his natural school environment where she was most likely to get an accurate picture of his receptive and expressive communication ability. She consulted with his teacher and therapists who have worked with Student over the past school year and reviewed both his BPS and independent evaluations. She testified that she was a proponent of bilingual education but that she did not recommend it for Student because bilingual education is not what Student needs. I find that Ms. Farah stood up to rigorous cross-examination with frankness and candor.
Based upon the totality of evidence presented, I conclude that Student does not require a bilingual program, a bilingual teacher or a bilingual speech-language therapist in order to address his special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. I conclude that an integrated, total communication/augmentative communication focus with the classroom; and also a total/augmentative communication focus within Student’s 1:1 and small group speech-language therapy sessions will most appropriately address Student’s special education needs so as to assure his maximum possible educational development in the least restrictive educational environment. Ms. Dervan and Ms. Sullivan have testified to/documented the progress that Student has made under this total/augmentative communications approach over the last school year despite his frequent absences. Even Mother testified to Student’s progress in Ms. Dervan’s class over the last school year in feeding, drinking, diapering, toileting, tooth brushing and beginning to develop a pointing response. I note the testimony of Ms. Dervan that her reduction of verbal interactions with Student actually made it easier for him to focus, become more successful and better control his behavior.
Parent also requests a 1:1 bilingual aide. During the last month of the 1999-2000 school year BPS provided Ms. Dervan’s class a bilingual paraprofessional (BP) but a BP is not specified in Student’s proposed IEP. Based upon her extensive observations, Ms. Farah testified that this BP is fluent in Spanish. The BP monitors Ms. Dervan’s Spanish when simple Spanish words are used with Student and interprets Ms. Dervan’s simple English words into Spanish for Student when requested by Ms. Dervan. (See testimony, Dervan).
I conclude that a BP should be specified in Student’s IEP and specifically assigned to Student’s classroom; and that the BP’s primary responsibility should be working with Student. In light of my FINDINGS AND CONCLUSIONS specified in detail above, such a BP may not be necessary for Student. However, my conclusion is based upon three factors: 1) Student’s Spanish heritage and familial culture; 2) Ms. Farah’s recommendation that Student can benefit from exposure to both English and Spanish at the single word level in terms of the oral language component to his total/augmentative communications program; 3) Ms. Cordero’s testimony that while an English speaking teacher can learn the simple Spanish words that should be taught to Student in a structured, formalized lesson, she would be unable to use incidental Spanish with Student, but that with a BP incidental learning could occur.
Additionally, since BPS is already providing a BP to Student’s classroom, I find that such BP can also be utilized to facilitate communications with Mother, if necessary, when she visits/observes in the classroom or if a breakdown in communications between Ms. Dervan and Mother should occur. Further, such BP can be used to fulfill Mr. Furman’s 5 th recommendation, cited above, regarding an interpreter to communicate with Mother from anyone on the BPS team. Finally, even though Student’s ability to learn language incidentally from the environment is extremely remote, a BP offers that remote possibility both in English and Spanish.
Parent argues that Student is entitled to receive bilingual educational services pursuant to the Massachusetts Transitional Bilingual Education Act (M.G.L. c.71A) and the Equal Educational Opportunities Act (20 U.S.C. §1703 (f)). Parent argues that BPS has discriminated against Student in violation of §504 of the Rehabilitation Act of 1973 (29 U.S.C. §794) by its failure to provide Student a bilingual special education program; and has failed to provide Student with a free and appropriate special education program under §504 because Student requires a bilingual special education program.
20 U.S.C. §1703 (f) provides:
No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin, by…(f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs . Emphasis added.
M.G.L. c.71A s.1 defines “ children of limited English-speaking ability ” in pertinent part as follows:
2. children who were born in the United States of non-English speaking parents and who are incapable of performing ordinary class work in English .
M.G.L. c. 71A s.1 defines “Program in transitional bilingual education” as
A full-time program of instruction (1) in all those courses or subjects which a child is required by law to receive and which are required by the child’s school committee which shall be given in the native language of the children of limited English-speaking ability who are enrolled in the program and also in English, (2) in the reading and writing of the native language of the children of limited English-speaking ability who are enrolled in the program and in the oral comprehension, speaking, reading and writing of English, and (3) in the history and culture of the country, territory or geographic area which is the native land of the parents of children of limited English-speaking ability who are enrolled in the program and in the history and culture of the United States. Emphasis added.
29 U.S.C. § 794 essentially provides that no otherwise qualified handicapped person shall,
solely by reason of his handicap, be subject to discrimination under any program receiving federal financial assistance. 34 CFR 104.33 provides that such federal recipients, such as public schools, shall provide a free appropriate public education to each qualified handicapped person in the recipient’s jurisdiction, regardless of the nature or seventy of the person’s handicap.
I conclude that BPS did not discriminate against Student by failing to provide him with services in violation of 29 U.S.C. §794; M.G.L. c.71A; or 20 U.S.C. 1703 (f).
Given my FINDINGS AND CONCLUSIONS , above, that Student does not require a bilingual program, teacher or speech-language pathologist in order to address his special education needs so as to assure his maximum possible educational development in the least restrictive educational environment, I conclude that BPS did not discriminate against Student by failing to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs and, therefore, did not violate 20 U.S.C. §1703 (f). Student is participating in BPS instructional programs to the maximum extent feasible given the nature and severity of his profound global disabilities and his limited level of attendance.
The legislative history of M.G.L. c. 71A states that the intention of the Act is to “facilitate their (students) integration into the regular public school curriculum.” (See M.G.L.A. c. 71A, sec. 1 of St. 1971, c. 1005). To effectuate this purpose students can be educated for up to 3 years in both their native language and in English. In this case no witness testified nor exhibit stated that Student will or can ever be integrated into the regular public school curriculum. Student is not child of limited English speaking ability who will take courses or subjects required by the State or local school committee; who will ever be instructed in reading or writing Spanish; who will learn to read, write or speak English or for whom the oral comprehension of English will be the primary means of receptive communication; or who will be instructed in the history or culture of his native country. Unfortunately, Student does not speak, read or write any language and has only the most minimal understanding of any type of oral communication. Student will never transition from Spanish to English in any number of years. Student has no dominant language and does not comprehend that Spanish and English are different languages. Based upon a review of M.G.L. c. 71A, its purpose, and the evidence presented in this case, I conclude that the Massachusetts transitional bilingual education act is not applicable and irrelevant to the instant case.
Pursuant to 29 U.S.C. § 794 a student must be provided a free appropriate public education which is the same standard as the federal special education stature 20 U.S.C. §1400 et seq . Pursuant to the Massachusetts special education statute, M.G.L. c. 71B, a special education student must receive an education that assures his maximum possible educational development. Given my FINDINGS AND CONCLUSIONS above, that Student does not require a bilingual program, teacher or speech-language pathologist to address his special education needs so as to assure his maximum possible educational development in the least restrictive educational environment under M.G.L. c. 71B, which is more extensive than the 20 U.S.C. §1400 et seq . standard of free appropriate public education; I conclude that a bilingual program, teacher or speech-language pathologist is not necessary for Student to receive a free appropriate public education under 29 U.S.C. § 794.
Further, I conclude that BPS did not discriminate against Student on the basis of handicap under 29 U.S.C. § 794 by failure to provide him with a bilingual program. Parent argues that bilingual programs are provided to regular education students – therefore Student, a special education student, must also be provided a bilingual program. However, BPS also provides bilingual programs to its special education students as well. (See testimony, Farah). Indeed, this Hearing Officer rendered a Decision in December 1999 involving BPS and a special education bilingual student in which the bilingual component of Student’s BPS program was a critical factor in finding for the appropriateness of the BPS program; and the lack of a bilingual program for the inappropriateness of the Guardian’s proposed program. In that case the student was also mentally disabled and cognitively delayed but spoke Spanish and was able to read and write Spanish in a limited way. (See In re: Boston Public Schools, BSEA #99-3328 cited at 32 IDELR 47 and 5 MSER 157). In the instant case, I conclude that there is no discrimination against Student due to his disability/handicap by the lack of a transitional bilingual program provided by BPS. Based upon my FINDINGS AND CONCLUSIONS , above, Student, unfortunately, is not an “otherwise qualified handicapped individual” pursuant to 29 U.S.C. § 794.
Parent argues that BPS should provide Student with 4 ½ years of compensatory educational services which is the entire time period he has attended BPS. I do not concur for the following reasons. During Student’s entire BPS educational career BPS has always provided him with special education services. During his entire educational career Parent has accepted the IEPs proposed by BPS. (See STATEMENT/HISTORY OF THE CASE , above; see also P-1, 2, 3, 4, 5, 6, 7, 8, 9; S-1, 2; testimony, Mother). The most recent IEP (P-4) prior to the IEP currently in dispute was only partially accepted but, as my FINDINGS AND CONCLUSIONS demonstrate, Student made significant educational progress over the 1999-2000 school year despite extensive absenteeism. Further, prior to her current counsel, Parent has always been represented by educational advocates. (See testimony, Mother). Finally, except for one 7 month time period to be addressed below, only Mother has testified prior IEPs were inappropriate. Except for this 7 month time period, Parent has presented no expert testimonial or documentary evidence that Student’s prior IEPs were inappropriate to address his special education needs so as to assure his maximum possible educational development in the least restrictive educational environment, based upon the evaluations and information that was then available to BPS. Therefore, I find no basis to award compensatory educational services for the past 4 ½ years.
The sole exception is for the period from approximately September 1998 to March 1999 when Student was placed at the Mattahunt School in an Education and Social Development class (ESD). Although this IEP (P-5) was scheduled to run through June 1999, BPS did unscheduled re-evaluations and updated reports in December 1998 and January 1999 (P-20 & P-22) which led to development of a new IEP and placement of Student at the Ohrenberger School in March 1999. (See STATEMT/HISTORY OF THE CASE , above; P-4). Based upon the unscheduled re-evaluation (P-22) and especially the progress report of Student’s ESD teacher at the Mattahunt School (P-20), I conclude that this placement was totally inappropriate to address Student’s special educational needs. Therefore, I conclude that BPS should provide compensatory educational services for the time period Student was place in the ESD class at the Mattahunt School. Ironically, this placement was a bilingual educational program !
Finally, Parent contends that all of Student’s IEPs list the home language as English; that all IEPs and Parents Rights Brochures have been sent to her in English rather than Spanish; and that she wished the home language to be listed as Spanish and all IEPs/Brochures to be in Spanish. P-11 is a February 1996 form signed by Parent that indicates that she would like the home language changed to Spanish. There is no indication as to where or to whom this form was sent. However, Parent also testified that she never requested BPS to send Student’s IEPs and Parents Rights Brochures in Spanish. Mother also testified that her ability to read and understand English is better than her ability to speak it and numerous documents indicate that Mother wrote to BPS in English. Ms. Dervan testified that she and Mother spoke and wrote in English all year; and that at one point she asked Mother if she needed an interpreter but Mother said no and that she understood everything Ms. Dervan was saying. Mother testified that she understood Ms. Dervan. I conclude that the evidence is far from clear regarding whether Parent did or did not request BPS to have the home language changed to Spanish or to have IEPs and Parents Rights Brochures sent in Spanish and I am unable to make a finding on this issue. However, given Parent’s stated position at this hearing, I conclude that BPS should amend the home language to Spanish on the proposed IEP; and that all future IEPs and Parents Rights Brochures should be sent to Parent in Spanish.
BPS shall amend the proposed 2000-2001 IEP to specifically provide the following educational services and modifications:
1. A doctorate level and/or highly experienced behavioral specialist shall design and implement a behavioral plan and provide consultative services to Student’s BPS educational service providers in school and to Parent in the home in a manner and for the time periods as specified in this DECISION .
2. Student’s school year program shall be extended over a 12 month period.
3. A bilingual paraprofessional shall be assigned to Student’s classroom whose primary responsibility shall be working with Student and also to facilitate communications, if necessary, between Student’s BPS service providers and Parent.
4. BPS shall list Spanish as the home language on Student’s proposed IEP and shall furnish all future IEPs and Parents Rights Brochures to Mother in Spanish.
5. BPS shall provide compensatory educational services to Student for the time period he was in the ESD bilingual program at the Mattahunt School.
By the Hearing Officer,
Dated: November 21, 2000
A Rifton chair was also recommended in a Children’s Hospital Physical Therapy evaluation performed in May 2000. (See P-47).
BPS did, in fact provide Student a summer program for the 2000 summer but it was not made a part of BPS’ proposed IEP for Student.
Ms. Cordero testified that she evaluated Student in 2 – 1 ½ hour sessions because, for the 1 st session he displayed behavioral issues and was hungry so it was rescheduled. Her evaluation (P-18) states only 1 date, June 13, 2000.