COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Brookline Public Schools
BSEA #06-2295
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA), (20 USC Sec. 1400 et seq.); as amended by P.L. 108-4461 ; Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A) and the regulations promulgated under these statutes.
The issues for consideration here are (1) whether the parent of a three-year-old child with a disability may attend the child’s occupational therapy (OT) at the parent’s discretion and (2) if so, whether Brookline may be required to conduct OT on the premises of the child’s private school if necessary to allow for parental attendance; (3) whether the Brookline Public Schools must refrain from retaliating or otherwise discriminating against Parents and/or Student in response to Parents’ pursuit of due process.
The procedural history of the case is somewhat complicated. For purposes of this Decision, it is sufficient to recount that on December 2, 2005, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA), alleging that Brookline had scheduled Student’s OT and PT services at hours that were inappropriate in light of Student’s disability. On December 3, the BSEA issued a notice of a hearing scheduled for January 6, 2006. On or about December 9, 2005 the parties resolved this scheduling issue; however, shortly thereafter, a dispute arose over parental attendance at OT sessions.
By agreement of the parties at a January 10, 2006 conference call, the hearing in this matter was rescheduled to January 18, 2006. Pursuant to the Hearing Officer’s direction during the conference call, Parents filed a statement of the above-listed issues and relief requested on the same day.
The parties made further efforts to settle the matter after the conference call but were unsuccessful, and so the hearing on the merits took place as scheduled on January 18, 2006. Mother appeared pro se , and the Brookline Public Schools was represented by counsel. Each party presented documentary evidence and examined and cross-examined witnesses.
Those present for all or part of the proceeding were:
Gail Barry Physical Therapist, Brookline Public Schools
Debra Biba Occupational therapist, Brookline Public Schools
Nancy Lane Assistant Superintendent, Brookline Public Schools
Vicki Milstein Early Childhood Coordinator, Brookline Public Schools
Amy Ruth Nevis Special Education Administrator, Brookline Public Schools
Student’s Mother, pro se
Joslin Ham Murphy, Esq. Attorney for Brookline Public Schools
The official record of the hearing consists of Parents’ Exhibits P-1 through P-6, School’s Exhibits S-1 through S-5 and approximately 2.5 hours of tape-recorded oral testimony and argument. The parties presented oral closing arguments on the day of the hearing and the record closed on that day.
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether Parents should be allowed to attend any or all therapy sessions for Student conducted by the Brookline Public Schools;
2. If confidentiality concerns on Brookline’s premises preclude Parents’ attendance, whether Brookline must conduct therapy sessions at Student’s private preschool;
3. Whether Brookline should be ordered to refrain from discriminating against Parents/Student as a result of Parents’ request for a hearing.
POSITION OF PARENTS
Student is only three years old, and has an IEP calling for 1:1 OT services on Brookline’s premises, outside of her private preschool. In light of Student’s young age as well as the location of the services away from her classroom, it is best practice for Parents to be able to attend at their discretion, as they would be entitled to do if the Student were being treated in an outpatient medical setting.
Moreover, Parents must observe the OT sessions first hand in order to implement the home carryover component of Student’s services as well as to monitor her progress.
If the privacy rights of other Brookline students would be compromised by Parents’ presence during Student’s OT sessions, then Brookline should provide OT services on the premises of Student’s private preschool.
POSITION OF BROOKLINE PUBLIC SCHOOLS
Brookline has made great efforts to accommodate Parents’ wishes, and is willing to allow Parent(s) to stay with Student during her OT session long enough for her to settle in, and/or to be present for entire sessions if there are no privacy concerns. However, the only space available during the one time slot that Parents have agreed to for OT is also used by other students, teachers and school staff during Student’s scheduled OT time. Parents’ continued presence would interfere with the privacy of other children. Parent consultation for carryover of OT strategies in the home and discussion of Student’s progress can be accomplished via telephone conversations, notes, pre-arranged meetings and/or email exchanges with the therapist. Parents do not need to attend all OT sessions for this purpose.
FINDINGS OF FACT
1. Student is a three-year, three-month old child who lives with her parents in Brookline (Mother, Ex. S-1) Student is a bright, verbal, engaging child. Her speech/language, cognitive, social/emotional, and perceptual/fine motor skills are at or above age level. She has a neuromuscular disorder that interferes with her muscle strength, stamina, gross motor skills, and sensory processing, as well as with her ability to perceive pain. (Mother, S-1) Student’s eligibility for special education and the type of services that she needs–occupational and physical therapy–are not in dispute.
2. Student currently attends a private preschool five days per week from 9:00 AM until 12:00 noon. She naps from 12:30 to 2:30. (Mother, S-5)
3. Student received Early Intervention services until third birthday in early November 2005. Brookline evaluated Student shortly before that date and, on October 31, 2005 issued an IEP calling for 30 minutes each per week of direct OT and PT, as well as 20 minutes per month of parent consultation and training with each therapist. Services were offered at 12:15 PM and 1:45 PM. (Mother, S-1)
4. Originally, services were to be provided on the premises of the Brookline Public Schools in the gymnasium at the Lynch Center, which is a multipurpose facility used for various early childhood education activities, including OT and PT evaluations and services. Student’s services were scheduled for the “therapeutic gym,” which is a large classroom that houses various types of PT and OT equipment. Student was to be using some of this equipment for OT and PT activities. Much of the equipment is heavy and/or semi-permanently installed, and it is not feasible to move it around from place to place. Depending on the day, Student might be the only child in the Lynch Center gym, or might be one of several children using the room. (Barry, Biba)
5. The physical therapist assigned to Student is Gail Barry. The occupational therapist who was originally assigned to Student was Charlotte Craig. Both of these individuals work with children at the Lynch Center. (Barry, Biba)
6. Parent partially rejected this IEP on or about November 2, 2005, requesting “back to back” scheduling of OT and PT to limit the amount of time lost from private preschool. (S-1) Brookline duly forwarded the partially rejected IEP to the BSEA, By the time Parents requested a hearing on December 2, 2005, the dispute had evolved to Parents objecting to the mid-day scheduling on the grounds that because of her disability, Student is too tired participate in OT and PT at that time, which falls immediately after her morning at her private preschool. Rather, Parents requested, Student should receive OT or PT services first thing in the morning (before preschool) or in mid-afternoon, after Student has taken a nap. (Mother; BSEA Hearing Request)
7. The parties initially resolved this dispute by agreeing that Student would receive OT services from 7:30 to 8:00 AM on Thursdays and PT from 8:00 to 8:30 AM on Fridays. This agreement is memorialized in a letter from Special Education Administrator Amy Nevis to Parents dated December 9. 2005. (S-2)
8. To accommodate the schedule changes, Brookline had to change the location of Student’s OT appointment from the Lynch Center to the preschool classroom at the Driscoll School, and also assigned a different occupational therapist, Debra Biba, who is primarily located at the Driscoll School. Ms. Biba has a long-standing OT appointment with another child at the Driscoll School at 8:00 AM, immediately after Student’s OT session; therefore, Student’s session would also have to take place at the Driscoll School. (S-2, Biba) Student’s PT sessions continued to be scheduled at the Lynch Center with physical therapist Gail Barry. (Barry)
9. Because of Ms. Biba’s 8:00 AM commitment, as well as the constraints of the Driscoll School space, Ms. Biba would not be able to provide consultation to Parents immediately after the OT session as originally planned by the TEAM. Her plan was to arrange for email, phone, and written communication with Mother to accomplish the consultation. (Biba)
10. On December 22, 2005, Mother brought Student to what was to be her first OT session with Ms. Biba at the Driscoll School. Ms. Biba greeted Mother and Student, and then pointed out where the therapy would take place and where Mother was to wait. Student was in a good mood, and readily took Ms. Biba’s hand. Ms. Biba observed no apparent separation issues at that time or previously, when she evaluated Student. (Biba) Mother stated that she wanted to remain with Student during the session. Ms. Biba replied that Mother could stay with Student on that day, but not afterwards because of confidentiality issues. Specifically, Driscoll preschool staff set up the room for the day during the 7:30 – 8:00 time slot and also speak with parents during that time, and information about other children necessarily would be mentioned in Mother’s presence. After some discussion with Ms. Biba and a preschool teacher, Mr. Rosenwasser, Mother left the building with the Student. Mother left before Ms. Biba had a chance to discuss options for consultation. (Mother, Biba)
11. Because the issue regarding Mother’s presence at OT sessions has not been resolved, Student has not received OT services from the date the IEP was issued in late October up to and including the hearing date in this matter. (Mother, Biba)
12. After Mother left the Driscoll School on December 22, the parties attempted to negotiate acceptable time slots for OT at the Lynch Center, which can more easily accommodate parental attendance at therapy sessions than the Driscoll Preschool. Brookline has most recently offered OT sessions at the Lynch Center location, at various starting times from 11:30 AM to 1:15 PM. These time slots are not acceptable to Parents, however, because of concerns about Student’s fatigue at those times. Further, Charlotte Craig, the occupational therapist who is assigned to the Lynch Center and is experienced with children Student’s age, is not available at the 7:30 AM time agreed upon by the parties. The arrangement with Ms. Biba at the Driscoll School space at 7:30 AM is the only way that Brookline can provide a therapist in an appropriate location within the time parameters acceptable to the Parents. (Biba, Milstein)
13. Brookline does not have a hard and fast policy on parent attendance at OT or PT sessions, but, rather, considers situations on an individual basis.2 Typically, three- and four-year olds who receive therapies as part of their school day do not have parents in the session. According to Ms. Biba, some children will not perform their OT tasks if a parent is present, but, on the other hand, some children have difficulty separating from parents, at least initially. (Biba; Milstein; S-4)
14. Mother feels that it is appropriate for her to attend Student’s therapy sessions, at least until Student becomes acclimatized to the sessions, and potentially, for a longer period, because the child is very young (just over 3), and is in an unfamiliar setting that resembles an outpatient treatment situation as opposed to a classroom. Moreover, in order to carry over OT strategies into the home, as recommended by Student’s evaluators, Parents must observe the OT sessions and consult with the therapist. (Mother)
15. On January 10, 2006, Mother made an email inquiry to Dr. Sharon Ray, an assistant professor of occupational therapy at Tufts University, as to whether a parent should be allowed to attend a 1:1 pullout OT session with a three-year-old within a school. Dr. Ray’s emailed response is as follows:
There is no law that specifies one way or the other. However, I would think that in a 1:1 setting, that it would be beneficial to have the parents there for carryover, unless having others present disrupts the therapeutic process for the child. There is no one size fits all answer as each child’s needs and learning syle is different, and decisions should be made on an individual basis. (P-5, 6)
16. There is no evidence on the record that Dr. Ray has ever met or evaluated Student or reviewed her records.
17. Student’s private preschool has offered to make space available for Student’s OT sessions during her preschool hours, so that Parents could attend. (P- 1, Mother) There is no evidence on the record of whether the proffered space is appropriate, or has the requisite equipment. There also is no evidence on the record of Brookline’s response to this proposal.
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that Parents have not proved that unrestricted parental access to Student’s OT sessions is necessary to provide Student with a free, appropriate public education (FAPE). Because parental presence at OT sessions is not a necessary to ensure FAPE for Student, it follows that Brookline need not deliver the OT services at Student’s private preschool in order to enable Parents to attend. My reasoning follows.
The Parents and School agree that Student is a child with a disability who is entitled to a free appropriate public education (FAPE) as defined in federal and state law.3 The parties also agree that OT and PT services as outlined in Student’s most recent IEP are appropriate. The only point of contention between the parties is whether Parents, at their discretion, have the right to attend Student’s OT sessions with her.
Neither the IDEA nor Chapter 766 squarely addresses this issue. Both statutes, as well as the applicable regulations, provide for parental participation in identifying and evaluating children with disabilities as well as in developing IEPs, tracking student progress, and changing students’ services and/or placements.4 The Massachusetts special education regulations also provide for parent involvement via consent to evaluations and services, the right to view proposed programs, the right to receive reports, and to participate in parent advisory councils. 603 CMR 28:07.
The statutes and regulations are silent, however, on whether a parent can attend a class or related service session on a regular basis. Moreover, there appear to be no reported decisions directly on point. In the absence of such an explicit directive, I will analyze the Parents’ request to attend OT sessions as a request for an accommodation or modification like any other (e.g, preferential seating, reduced homework, etc.) As such, the Parents’ request should be granted only if Student requires a parent to be present in order to receive FAPE. To elaborate, Parents are entitled to have one of them be present in the OT session if they can demonstrate, with competent evidence, that such presence is necessary to enable Student to derive benefit from, and make meaningful progress in, her educational program.
Here, the Parents have presented no such evidence. The record contains no evaluation reports or witness testimony in support of the proposition that Student needs the continued presence of a parent during OT in order to benefit from that service or to make educational progress generally. There is no evidence, for example, that Student has any emotional, cognitive, behavioral, or other developmental issues that would make her unable to benefit from services if Parent did not attend OT sessions. On the contrary, Student is described as a bright, happy, well-behaved child who had no problems separating from Mother during evaluation or at the initial OT session. (Biba, Ex. S-1)
Indeed, Parents themselves do not assert a nexus between Student’s special needs and their request to attend OT sessions. Rather, they take the position that in light of Student’s young age, the 1:1 “outpatient” model for OT, and the need for them to see and understand what the therapist is doing so they can carry over strategies into the home, parental presence at sessions is simply common sense and “best practice,” and should be ordered by the BSEA.5
Parents’ position is certainly understandable. It is not legally supportable in light of the evidence on the record, however. A BSEA hearing officer does not have the authority to substitute his/her judgment for that of a duly qualified professional educator or service provider on how to deliver services unless the provider’s methods affect FAPE .6 And, here, Parents have neither asserted nor proved that Student will be denied FAPE if a parent cannot attend OT sessions at his/her discretion.
Common sense does dictate that a parent be allowed to help a young child settle in with a new service provider, but Brookline does not object to Parent’s presence at sessions for this purpose, and, in fact, has made additional attempts to find an open OT slot at the Lynch Center, which can more easily accommodate parental attendance than the Driscoll School. (Unfortunately, none of the available times are acceptable to Parents.) As for home carryover, Brookline’s witnesses testified credibly that Parents can learn the necessary strategies and consult with the therapist via phone calls, and correspondence, emails, and pre-arranged observations of sessions. Neither the facts nor the law give Parents an entitlement to attend any and all OT sessions at their discretion.
Because Parents do not have an entitlement to attend OT sessions at their discretion, there is no need to address whether Brookline can be required to provide services at Student’s private school in order to enable them to attend as requested.
Finally, Parents have requested an order directing Brookline not to discriminate against Parents and/or Student in retaliation for having pursued due process in this case. I decline to do so. Of course, it is axiomatic that no school district may retaliate against a parent for requesting a due process hearing. For this reason alone, a “no retaliation” order should be unnecessary. Additionally, however, in this case, there is no evidence on the record that Brookline has taken any adverse action against Parents or Student, as a result of Parents’ pursuit of due process. On the contrary, the district has continued to make efforts to amicably resolve the matter. For these reasons, the order that Parents have requested is not warranted.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”
2
Mother did remain with Student during her entire PT session without incident, and nothing about the PT services is at issue in this hearing. (Barry)
3
. The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with an properly developed IEP. 20 USC Sec. 1401 (as amended by IDEA-2004). The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
4
See, for example, 20 USC §1414(a)(1(C) (parental consent for evaluations); 1414(b)(4) (parents are members of the IEP team); 34 CFR §300.345 (parents’ right to participate in meetings and be notified of proposed changes in services and placement).
5
I give little weight to the correspondence from Dr. Ray. She has never met or evaluated Student. In any event, Dr. Ray herself indicates that whether a parent should attend an OT session should be determined on a case by case basis.
6
See Roland M. v. Concord School Committee , 109 F.2d 983 (1 st Cir. 1990 ); Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 206, (1982).