Dracut Public Schools et al v. Tim – BSEA # 07-5592
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: DRACUT PUBLIC SCHOOLS et al v TIM1
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 corresponding regulations.
A hearing was conducted on June 4, 2007 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.
Those present for all or part of the hearing were:
Ramzi Nasir Pediatrician, Children’s Hospital
Deborah Rizzo, Special Education Teacher, Dracut High School
Rachel Clifford Autism/Inclusion Specialist, Dracut Public Schools
Catherine Stavrakas School Psychologist, Dracut Public Schools
Wendy Lennon Paraprofessional, Dracut Public Schools
Cassady Byers Out of District Team Chairperson, Dracut Public Schools
Margaret Moran Program Director, Greater Lawrence Educational Collaborative
Steven Stone Special Education Director, Dracut Public Schools
Sharda Ramlacknan Parent Advocate
Alexander Pratt Attorney for Parents2
Kevin Murphy Attorney; Dracut Public Schools
Joan Beron Hearing Officer, BSEA
Elaine Hurley Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parents’ Exhibits marked P1-P28 and School Exhibits marked S1-S27 and approximately one day of recorded testimony. The record closed on July 11, 2007 when the Hearing Officer received written closing arguments from both Parties.
I. Does Dracut’s IEP designating an out of district day placement at the Greater Lawrence Educational Collaborative (GLEC) provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) for Tim?
II. If not, does Tim require a residential program to meet his educational needs?
FINDINGS OF FACT
1. Tim is a handsome seventeen-year old Dracut resident who receives special education services to address deficits in receptive and expressive language and pragmatic skills, social skills and behavior due to Landau-Klefner Syndrome3 (P1, P10, S9, S15, S16, S17). Tim also has deficits in his language processing, fine-motor skills and cognition (P10). Cognitive testing done in April 2004 by Dracut shows nonverbal functioning at the 1 st percentile. Tim’s adaptive skills ranged from a one year five month level to a three-year level, his socialization skills ranged from a four month to a three year three month level.4 Tim’s functioning on standardized speech and language evaluations done in February and March of 2004 show receptive language skills at a one year nine month level5 , expressive language skills at a two year eight month level to a three year level and conceptual ability at the three year five month level (P10). However, on informal testing Tim is able to demonstrate consistent knowledge of numbers, letter and several body parts and displays expressive language at a three year three month level (P10).
2. Tim receives services at Dracut High School pursuant to his last accepted 8 th grade IEP of March 4, 2005-March 3, 2006 (P3/S17). These services include pull-out speech/language services for two thirty minute sessions per week, ten minutes per week of augmentative communication, thirty minutes of weekly support from an autism inclusion specialist, ten minutes of weekly support from an augmentative communication specialist and all academics in the learning center except for science and social studies. Tim also receives in class support for these subjects 1 ½ hours each day; see (P3/S17). His goals and objectives are to identify and find the value and sum of coins and to tell time with 80% accuracy, to follow his daily schedule 80% of the time and independently start an assigned tasks with verbal and visual supports at least 50% of the time. Tim is also working on orally saying his phone number, address, family names and “who” questions 75% of the time and writing basic sentences 50% of the time (P3/S17). Tim is also working on increasing his receptive and expressive communication through following directions, using six to eight word sentences with increasing frequency, answering simple yes/no questions and using appropriate social language such as greetings (P3). He is also working on increasing social skills such as working with another peer on an activity twice a day, sitting in the cafeteria with peers, passing out materials to peers in class and greeting peers at least 80% of the time (P3). He has been working on these goals and objectives since at least the 2004-2005 school year ( compare P4, P3, see also Mother, Father). Tim does not receive extended day or extended year services; see (P3).
3. On March 24, 2006 the TEAM reconvened. Dracut proposed a 9 th grade program in the Life Skills program at Dracut High School (Stone). The Life Skills program is a program for intellectually impaired high school aged students with multiple disabilities, which provides traditional and functional life skills and health skills and vocational training (Stone, Rizzo). The service delivery grid on this IEP is identical to the previous year’s IEP with the exception of the elimination of the services from the augmentative communication specialist; (P2/S15, compare P2, P3). The objectives for this year however include a primary goal for reducing Tim’s aggressive (hitting, pushing and charging) behaviors in school through a token economy board to reduce behaviors from three to one episode per month. Reading and safety goals and objectives were also added to the IEP and similar communication, social and math goals continued; Id. Dracut felt that the Life Skills program at Dracut High School was appropriate because he was adequately performing academic tasks during the school day and while he did have behavioral issues Dracut believed that he could be serviced through the school day (Stone, but see Mother).6 Parents indicated that they wanted Tim in another program but did allow Tim to transition into this program (Mother, Father). Tim visited three times before the end of the school year and had no episodes (Rizzo).
4. On May 31, 2006 Tim lost control on the way home from school and broke the bus drivers thumb (Stone, P11).
5. The following day (June 1, 2006) at about 11:15 a.m. the Assistant Principal was called when Tim began to escalate in the computer room. Tim began hitting the assistant principal requiring a two-minute one- person restraint. Tim was then led to the gym and able to calm down after three to five minutes and returned to the classroom. However at about 11:40 a.m. Tim had to be removed from the room for hitting and required a two- person escort to the gym (P12, see also Stone).
6. On June 6, 2006 at about 11:30 a.m. Tim attacked his teacher Ms. Sheehan and required a five to ten minute restraint to deescalate (P13). Tim also began being increasingly agitated at home and refused to go to school and was aggressive toward Mother when she tried to get him to go to school (Mother, S19). He also continued to have difficulty going to bed and staying asleep (Mother, S19). Dr. Albers put Tim on Prozac but it did not have any effect on Tim’s aggressive behaviors and was discontinued (S17). Dr. Albers switched Tim to Risperidol to address his aggression and Clonodine at night to help with sleeping (S17).
7. Dracut sent the IEP from the March 24, 2006 meeting to Mother on June 30, 2006 (P2). On August 1, 2007 Dracut re-sent the IEP because Parents did not respond to the first IEP; see (P16).
8. On August 3, 2006 Tim was seen for a psychopharmological visit at Children’s Hospital by Dr. Lisa Albers (S19). At that time Tim’s aggressive behavior while on Risperidol had decreased. However, Tim still had episodes each day. He remained perseverative about eating massive amounts of food (i.e. demanding twelve cheese sandwiches), compulsively watched portions of videos and DVDs and repeatedly asked for trips to the amusement park, hitting Mother when his demands were not immediately met; (S9, Mother, Father). Tim also continued to have problems sleeping for more than three to five hours, waking up Mother to demand food and hitting her when his demands were not met and his demands were continual even when initial demands were met (Mother, S19).7 During this visit to Children’s Hospital, Tim engaged in frequent self-stimulating behavior including rocking, jargoning, observing his hands in front of him, echolalic speech and frequent blinking (S19). Dr. Albers recommended that Tim continue on Risperidol and that he should be placed in a non-integrated school program targeted to support the educational needs of children with autism spectrum disorders (S19).
9. On August 29, 2006 Dr. Nancy Sullivan at Children’s Hospital evaluated Tim at the request of Dr. Nasif (S18, Nasif). Dr. Nasif referred Tim to Dr. Sullivan because she has experience in working with and evaluating children with behavioral difficulties like Tim’s (Nasif). Tim was assessed with a complete psychological battery including the Stanford-Binet, 5 th Edition and the Vineland Adaptive Behavioral Scales, 2 nd Edition (S18). Mother told Dr. Sullivan that Tim had seriously injured a bus driver, that he had frequent and severe behavioral outbursts at home and had no safety skills and limited independent living skills and required intensive support to perform most adaptive and self-care tasks. Dr. Sullivan recommended that Dracut and the Department of Mental Retardation (DMR) meet immediately to review Tim’s placement and level of services. Dr. Sullivan further recommended that Tim be in a non-mainstreamed setting and have a trained one to one behavioral assistant to provide one to one supervision in class, on the bus both to and from school and when walking between classes (S18). Dr. Sullivan also recommended that Tim’s program include two hours per week of consultation from a behavioral specialist with experience working with adolescents and young adults with autism. She further recommended that this behavioral specialist provide one hour per week of in-home behavioral consultation to Tim’s family to generalize more adaptive behavior in both the home and school setting (S18). Dr. Sullivan also recommended that Tim receive intensified services from DMR including respite and in home behavioral training so that he could remain in the home setting (S18).
10. On September 1, 2006, Mother rejected the IEP designating a partial inclusion program at Dracut High School because both she and Father believed that Tim required an out of district placement. She requested a meeting to discuss the IEP; see (P2).
11. On September 11, 2006 Dracut sent Parents notice for a TEAM meeting on September 15, 2006 to discuss the rejected IEP (P17). At the TEAM meeting Parents requested that Tim be placed in a residential program for students with Autism (Mother, Father, see S16). An IEP was developed for the Life Skills program within the Dracut High School with a one to one paraprofessional (P16). This IEP called for two thirty minute sessions of speech and language services to address expressive and receptive language deficits, and five fifty-minute sessions each of social vocational instruction, math, English, Life Skills, and Health; see (P16). This IEP did not incorporate Dr. Albers recommendation for a substantially separate program for autism or Dr. Sullivan’s recommendations for consultation from a behavioral specialist experienced in autism, any extended school year services or home programming or coordination with DMR; compare (S16, S18, S19).8
12. On September 29, 2006 Dracut sent notice for an emergency TEAM meeting on October 4, 2006 (P18).9 In the twelve days that Tim had been in school he had had ten aggressive episodes and on September 29, 2006 had to be removed from the class because he scratched to the point of drawing blood (P14, see also S7). He was absent until October 3, 2006 (P14). Mother told Dracut that Tim was refusing to go to school; see (S7). Dracut began investigating out of district programs that could meet his needs, including the SEEM Collaborative, the LABB Collaborative and the Greater Lawrence Educational Collaborative (GLEC) (Stone, Byers, S9).
13. The TEAM met on October 4, 2006 (S14, Byers). Dracut felt that GLEC would be an appropriate program and sent a packet to the school that day (S11, Byers). Parents wanted packets sent to other schools that serviced students with autism and Dracut agreed (Mother, Father, Byers).
14. The Parties met for mediation on October 23, 2006. By that date Tim had been at school only ten days and tardy two of those; see (S5, S7). The Parties came to an agreement whereby Dracut would send referral packets to the following day programs specializing in autism including the Greater Lawrence Educational Collaborative (GLEC), the Protestant Guild and Evergreen Schools as well as other schools that Father would provide Dracut (P19).10 Dracut called the admissions departments of GLEC, Protestant Guild and Evergreen on October 23, 2006 and sent packets to Protestant Guild that day after confirming that Tim may be appropriate; see (S9). Dracut arranged for Father to visit GLEC on October 30, 2006. Father eventually visited GLEC on November 9, 2006. Father felt that GLEC was not appropriate because it was not a residential program (Father). The Director of GLEC (Margaret Moran) observed Tim on December 11, 2006 and accepted Tim into their program on December 14, 2007 (Moran, S9).
15. On December 19, 2006 the Protestant Guild informed Dracut that it had arranged for Parents to visit to its program. Mother visited the program on January 12, 2007 and loved the program because it had small classrooms, about a 1:1 ratio, a vocational component and had activities that Tim would enjoy such as swimming and music (Mother, see also Father). She also liked the program because it had a residential component that Tim could enter if needed (Mother, see S9, see also Father).11
16. Protestant Guild’s director observed Tim on February 8, 2007 (S9). On March 2, 2007 Protestant Guild determined that Tim would not be appropriate for their program due to his age and functioning and that they did not currently have an appropriate classroom for him or the appropriate enrollment numbers to warrant starting a new classroom (S12, see also Byers). Parents felt that Dracut had talked the Protestant Guild out of accepting Tim because it wanted Tim placed at GLEC (Father).12
17. On March 7, 2007 Dracut’s special education director (Steven Stone) sent Mother a copy of the Protestant Guild’s letter to Dracut rejecting Tim’s placement and wrote to Mother to invite her to a meeting to discuss transitioning Tim into the GLEC program (S13/P25). Mr. Stone also informed Mother that if the GLEC program was not accepted Dracut would consider options to ensure that Tim was receiving a free appropriate public education (FAPE); Id.13
18. On March 14, 2007, Parents’ Attorney (Alexander Pratt) sent Mr. Stone consent for Dracut to conduct speech/language, educational and psychological assessments; see (P26). Attorney Pratt also included a January 5, 200714 report from Dr. Nasir15 from Children’s Hospital resulting from a visit to review Tim’s medication Id. In that report Dr. Nasir interviewed Mother (Nasif). He did not talk to any of Tim’s teachers16 at Dracut, review any of Tim’s records nor did Dr. Nasif view Tim at home or at school (Nasif). Mother told Dr. Nasif that Tim continued to perseverate and was aggressive when his demands were not immediately met (S26, see also Father). Although his behavior had improved with medication, Tim continued to sleep only about three hours per night often waking up Mother to make demands for food (S26, Mother). At the time of Tim’s January visit, he was only going to school two to three days out of the week and was tardy at least weekly because he was refusing to go to school and Mother could not get him to go; see (S4, Mother). At the time of Tim’s January visit he was approximately 5 ft 4 inches and weighed approximately 153 pounds, gaining about 17 ½ pounds since September 2006 with only a ½ height increase17 and Mother was afraid of Tim when he got aggressive; see (P26, Mother). Dr. Nasif concluded that Tim’s behaviors had not improved because of the absence of an appropriate and structured educational program that met his needs (P26). This included programming with home support and school support so that Tim’s behavior could be better managed (Nasif). In his report, Dr. Nasif recommended that Tim be placed in a residential program because he required constant supervision, was aggressive with Mother in the middle of the night, and could not self regulate without a residential program and therefore could not learn functional or adaptive skills (P26, Nasif).
19. On March 30, 2007 Dracut filed a hearing request at the Bureau of Special Education Appeals (BSEA) alleging that Tim was not receiving a FAPE in his last agreed upon program and that an order issue to place Tim in the GLEC program; see (S8).
20. Progress reports from November 2006 show that Tim was not meeting his behavioral goals and objectives despite the use of the token economy system and that he had at least one inappropriate hitting, pushing or charging episode per day. One of these incidents resulted in Tim’s teacher getting seriously hurt because she could not avoid Tim’s repeated hitting due to the set up of the room and other students (Rizzo).18 Tim was also not able to meet his communication, social/vocational, reading and safety goals and objectives (S4, see also S7). Tim was absent five times in September (S7). He was absent fourteen times in October 2006 and tardy another four times, absent six times in November 200619 and nine days in December 2006 (S7). On November 1, 2006 Tim fell asleep for a three-hour period (S7). On November 13, 2006 the crisis team had to be called when Tim escalated after being denied access to continued TV (S7). The crisis team also had to be called in on November 20, 2006 for this reason; Id. They were again called on December 15, 2006 when Tim became agitated when his aide had to leave the room (S7).
21. As of February 2007 Tim continued to struggle with his behavior but was responding to the token award system; ( see S4, S7). Attendance records show that Tim only attended five days of school in January 2007 with one tardy; in February Tim attended six days and was tardy one of those days (S4).
22. Progress reports issued April 12, 2007 indicate that Tim had not made adequate progress on any of his goals and objectives because of his sporadic attendance (P6). Progress could not be accurately noted in April 2007 because Tim sporadically attended school because he refused to go and Mother could not get him on the bus (S4, S7, see also Mother). Tim attended only five days in March 2007 and was tardy four of those days. As of April 12, 2007, he had only attended school two days and was tardy on both occasions (S4).
23. Just before April vacation Dracut instituted a token reward system for getting on the bus and Tim began to attend school regularly missing only two days in May (S7, Lennon)20 Tim also has cooperatively and accurately worked on money and time concepts, was beginning to copy sign language prompts and could correctly identify 33 out of 40 indoor safety signs (S1). He could also, in class, identify and verbalize the correct weather and date, sort mail and correctly identifying signs and participate with classmates in sign bingo and other activities (S1, S2, Lennon, Clifford). In school, Tim was also able to respond positively to a rewards system and social scripts and to firm limits for appropriate behavior and his behavior was more compliant (Lennon, Clifford, see S1, S2, S7).21 Whereas Tim was not able to complete psychological testing when evaluated in 2004, at this juncture he was able to complete testing; (S3, Stavakas). Tim also showed improvement in his bolting behavior and was able to pass students in the hall without bumping into them, showed consistency in the past two months in covering his mouth when coughing and sneezing and was asking for help and saying please (S3). Tim was also participating in classroom demands and activities and prevocational work (S5). However, even though Tim can identify coins and time in a school setting with his paraprofessional, at home, when given a choice, Tim will pick a $5.00 bill over a $10.00 bill because he takes a $5.00 to school for lunch and believes that he can buy all things (including boats and game boy accessories) with $5.00 (Mother). Tim can identify if it is raining or sunny but does not understand that he cannot go out on the boat during a thunderstorm (Father). Similarly, while he can identify time at school, Tim does not understand that he cannot get pizza from the pizza parlor at 3:00 in the morning, often insisting on getting his demands met despite frequent redirection (Mother). He does not understand time concepts such as later or tomorrow (Mother).
24 Tim has recently completed a three-year reevaluation. Tim scored in the 1 st or lower percentile on all subtests except for school living and work22 (S3, Stavakas). However when prompted Tim can expand his speech and understand simple directions and can write his name and requests (Father). Dracut has continued to propose that Tim be placed in the GLEC Collaborative. This current IEP however offers extended year services and two hours per week of home programming with a behavioral specialist (Stone).
25. The Lifeways School within GLEC is a substantial separate behaviorally oriented collaborative program in Methuen MA (S20, Moran). Eighty percent of the students have autism (Moran). The program runs from 9:00 a.m. to 3:00 p.m. and has a total of forty students (Moran). Each of the six classrooms at the Lifeways Program have between five and seven children led by a certified special education teacher and two assistants; (S20, Moran). The program also has two full time ABA certified behavioral specialists who work with staff to develop behavior plans and meet with staff at least weekly. All staff are trained in crisis intervention and physical restraint if needed after less restrictive alternatives are implemented. In addition there is a speech/language pathologist (SLP) trained in augmentative communication who provides services and consultation (Moran). Social skills groups occur on a weekly basis co-led by the SLP and the behaviorist (Moran). Vocational training also occurs both on and off site and geared toward each student’s needs (Moran). A daily communication log is sent home and parents also may go to a monthly parent group co-facilitated by a consultant from Melmark. There is also a six-week summer component as well as home training as needed and an after-school program four days per week from 3:00 p.m. to 5:00 p.m.; (S20, Moran). The program also provides transportation and specialized transportation plans if needed (Moran). The director of the program (Margaret Moran), after observing Tim and reviewing his records, felt that her program would be appropriate for Tim because it would offer the behavioral programming and communication skills and therapies he needed within a smaller class size within a smaller school; Id.
26. Parents want Tim to be placed in a residential school because he cannot currently cope and is unsafe in the community when out with Mother (Mother). When Mother does not assent to Tim’s demands he yells, hits the table and has hit Mother (Mother). Mother does not take Tim out to places other than doctor’s appointments or to her brother’s or her father’s home or Father’s because Tim bolted from the mall on one occasion and demands that Mother buy him multiple (five or six) items. Mother would either buy him the items or risk getting hit (Mother). Tim has also bruised or scratched his brother and occasionally his sister when she does not get away from him (Mother). Tim does not have these issues when he goes on outings or visits Father (Father). However, Father feels that while GLEC may be able to handle Tim’s behaviors Tim would not want to go to GLEC and it would be hard to get him there (Father). In addition, Tim’s life skills are so lacking that he should be in residential now to address his life, social and vocational skills (Father). Also, it is likely that Tim will eventually require residential services and does not transition well so a residential school should be put into place now before Tim turns eighteen and is too old to get into a program (Father). If Parents applied for services Tim would be eligible to go to the Fidelity House Intensive Case Management Program (Mother). This is a DMR funded program that provides case management, educational advocacy, and clinical and behavioral management services to families with aggressive children (Mother). Mother will not accept DMR services because she wants a residential program for Tim (Mother).
27. Parents continue to want the Protestant Guild residential program but understand that Tim cannot be placed there if he is not accepted. They may consider an out of district day program if it had a residential program associated with it. Tim is DMR eligible and receives a yearly stipend from DMR (Mother). Dracut acknowledges that the Life Skills program within Dracut High School is inappropriate for Tim because it is too big with too many distractions even with modifications, and Tim cannot easily follow the rotating schedule or transitions between classes (Rizzo, Clifford). However, while Dracut feels that Tim requires more than the Life Skills program in order to make effective progress, it feels that Tim would make effective progress in a smaller day program with behavioral supports that services autistic students with access to community experiences (Stone, Rizzo, Byers). Dracut is willing to consider residential services if Tim requires this in the future but at this time Tim does not require twenty four hour programming in order to make effective progress, and would benefit from being in a home environment (Stone, Stavrakas, Rizzo, Byers). Therefore Dracut is recommending an out of district day program. Id. GLEC is in the next town and can meet Tim’s needs (Stone, Moran, Clifford). Therefore Dracut is recommending that Tim’s IEP be implemented at GLEC (Stone, Clifford, Byers).
28. On June 18, 2007 Dracut filed an IEP that resulted from a TEAM meeting conducted on June 13, 2007 to consider Tim’s three-year evaluations (S27). This IEP continued to propose a self-contained program at GLEC and two thirty-minute sessions of speech/language. The half hour of consultation from the autism/inclusion specialist was eliminated, however this IEP added goals and objectives in home behavior and added two sixty-minute sessions from a behavioral specialist, a longer day and an extended year program to prevent regression of skills. Dracut also recommended that GLEC implement a vocational evaluation. ( compare (S15, S27).
FINDINGS AND CONCLUSIONS
At issue is whether the IEP that Dracut proposed for an out of district day placement at the Lifeways program at GLEC offers Tim a free appropriate public education (FAPE) in the least restrictive environment (LRE), and if Dracut’s program is found not to offer a FAPE to Tim, will modifications or accommodations to the IEP provide Tim with a FAPE. If Dracut’s IEP even with modifications or accommodations does not provide Tim with a FAPE this Hearing Officer must determine whether Tim’s educational needs require him to be placed in a residential program.
The general purpose of the IDEA is to ensure that all children with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and to ensure that that the rights of children with disabilities are protected; 20 USC 1400 (d)(1)(A), (B);23
Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).24
In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student cannot make meaningful progress in a regular education setting even with the use of accommodations and specialized services; see 20 U.S.C. 1412 (a)(5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (17). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and developmental expectations, the individual educational potential of the student and the learning standards set forth in the Massachusetts Curriculum Frameworks”, 603 C.M.R. 28.02 (17).
An IEP designating a residential program is appropriate only if the severity of the student’s special needs is such that he can not educationally progress effectively in a less restrictive environment, even with the use of supplementary aids and services; see 603 C.M.R. 28.06(f). The courts have approved residential educational placements, for example, for students who need a comprehensive, 24-hour, highly structured special education program that would address social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee, 775 F.2d 411, 416 (1st Cir. 1985).
The courts have also recognized that, in an appropriate situation, residential educational services may be provided by combining a day educational program with a group home, where the group home meets “specific educational criteria.” Abrahamson v. Hershman, 701 F.2d 223, 229 (1st Cir. 1983). The IDEA however does not require local school districts to finance foster care if the need for such care is solely noneducational in nature and a student can progress effectively in a less restrictive environment; see Abrahamson at 227-8. Dracut however, is not absolved of providing Tim with residential services if he needs them in order to learn. If Tim requires a residential program in order to learn Dracut must provide such services under an IEP even if he also needs the same type of placement for safety or other reasons. See Abrahamson v. Hershman , 701 F.2d 273 (1983); David D. v. Dartmouth School Committee , 775 F2d 411 (1985), Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999).
Here Parents contend that the GLEC program is inappropriate because it is a day program and Tim requires a residential program in order for him to learn to regulate his behaviors in all settings and that Tim would not access the program because he would refuse to leave home to go there.
After examining the documents and the testimony in this matter, this Hearing Officer finds that the IEP developed on September 25, 2006 continuing the program at the Life Skills program was inappropriate. At the time that this IEP was developed Dracut knew that at the end of 8 th grade Tim had become out of control on the bus and broken the bus driver’s thumb, could not participate in some end of school activities, required restraint for escalating behavior, was refusing to go to school and was also engaging in aggressive behavior at home. Dracut also had information from Dr. Sullivan from Children’s Hospital, experienced in evaluating students like Tim. Dr. Sullivan recommended that Tim be in a substantially separate setting targeted for autistic students, with a behavioral consultant in the school and the home to provide training and consultation so that Tim could generalize more adaptive behavior in both the home and school setting. Dr. Sullivan also recommended that Tim receive services from DMR including respite so that he could remain in the home setting. Dracut also knew prior to that TEAM meeting that in 9 th grade Tim had had many aggressive behaviors at school.
However, Dracut’s proposal at the October 4, 2006 emergency TEAM meeting for the GLEC program was appropriate. GLEC is a substantially separate behaviorally oriented program geared toward servicing students with autism. It offers the behavioral planning, extended day and year, social skills training, communication and home programming that Tim requires in order to receive a FAPE. The IEP however should have included the services of the augmentative communication specialist previously eliminated,25 as well as the extended school day and year, the vocational evaluation and the two hours of home behavioral programming per week that Dracut offered in its June 2007 IEP.26 The IEP should also include, if Parents do decide to access the DMR services offered, consultation from DMR.
Parents assert that Tim would not be able to access anything less than a residential program. However, the evidence shows that when the token economy used in school was coordinated with the home Tim was attending school more regularly. Neither intensive home services nor DMR services have been tried. As such Parents have not shown that Tim requires a residential program in order to address his social and behavioral needs or that Tim’s needs could not be met in a less restrictive setting. Therefore Parents’ request for an IEP for a residential program at this time is denied.
Dracut’s June 2007 IEP that offers an extended day and extended year program at GLEC with two hours a week of home programming is appropriate with the addition of the services from the augmentative communication specialist. If Parents agree to the DMR services offered, consultation with DMR should be added to the IEP.
By the Hearing Officer,
Joan D. Beron
Date: July 17, 2007
Tim is a pseudonym used for confidentiality and classification purposes in publicly available documents.
Parents are divorced and Tim and his siblings live with Mother. However both Mother and Father have the same position regarding Tim’s educational placement.
Landau-Klefner Syndrome (LKS) is a neurological disorder that resembles autism (Nasif).
Tim’s community skills fell at the one year five month level, his domestic skills (i.e. clearing a table) fell at the two year level and personal skills (feeding, pulling up pants) was at a three year level (P10). Tim’s play and leisure skills fell at a four-month level, his interpersonal skills (eye contact, vocal response) fell at a one year seven month level and coping skills (saying please, following school rules) fell at a three year three month level (P10). Testing was done on the Vineland Adaptive Scales (Interview Edition).
On observation of communication skills assessed through the Vineland, Tim scored at the two year six month level (P10).
However there were two occasions in 8 th grade where Mother was asked to keep Tim home, one because the gym teacher was unavailable and the other because he had attacked the bus driver and Dracut would not bus Tim on the 8 th grade field trip (Mother).
At that time Tim was 127 pounds. Mother is smaller than Tim; see (S19, Mother).
Parents testified that they had in 8 th and 9 th grade told Dracut that there were home issues, including issues getting Tim on and off the bus, issues with Tim demanding things that he had “googled” during reward time in school and incidents of aggression with Mother at home (Mother, Father). There were also many incidents that Dracut was unaware of (Mother, Father). Parents never requested home programming (Father). Dracut did not believe that these incidents justified home programming and therefore home programming was not included in the IEP (Mother).
Dracut began exploring the SEEM and the LABB Collaboratives on September 21, 2006; see (S9, Byers). Neither Collaborative accepted Tim; see (S9). It began exploring GLEC in early October 2007 (S9).
A packet to Evergreen was sent on October 24, 2006 (S11). On November 3, 2006 the Evergreen admissions office informed Dracut that Evergreen was over an hour away from Dracut. On January 11, 2007 Evergreen informed Dracut that the day program was not approved (S9). Neither party has requested a program at Evergreen. Dracut also contacted the FLACC Collaborative on November 8, 2006. FLACC informed Dracut that the program was more than fifty minutes away and that the students do not receive behavioral interventions. FLACC was not further pursued (S9).
A previous meeting was set for January 3, 2007 but Father did not make that meeting (S9). Mother did not visit GLEC because Father told her that it was not appropriate for Tim (Mother).
Dracut recontacted the Protestant Guild in June 2007 to determine if their position had changed regarding Tim’s placement. Protestant Guild’s position remained unchanged (Stone).
Parents and Dracut’s attorney both received a copy of this letter; see (P25).
It appears that Children’s Hospital sent this report to Parents on or about February 2, 2007; ( see P26).
Dr. Nasif is a developmental pediatric fellow at Children’s Hospital. He has been certified since 1998 (P27).
Dr. Nasif did talk to the autism consultant on April 6, 2007 about the medication Tim was taking to improve his sleep (Nasif). He tried to contact Dracut in June 2006 but was unsuccessful (Nasif).
Dr. Nasif reported Tim’s weight in killigrams (Kg) and his height in centimeters (cm). The Hearing Officer converted the data into inches and pounds for ease of understanding; see (P26). Tim is currently approximately the same height and weight (Mother).
This incident occurred on October 30, 2006. Tim has been agitated but has not hit anyone since early November (Rizzo, Clifford). Tim can when agitated hit the desk or other objects but can be redirected or calmed down by the presence of the crisis team (Rizzo, Clifford, Lennon).
Tim went home ill on November 8, 2006. Two of the absences appear to be related to illness; see (S7).
Tim did respond to the token reward system (Lennon). However, during this time period Father also assisted in getting Tim ready for school (Father). Both may have contributed to Tim’s more regular attendance. However Tim’s attendance has been steady even when Father stopped coming to the house to get Tim ready for school ( see S7). The record shows that Tim missed four days in June however three of these days immediately followed the hearing and the Hearing Officer does not know if these days were missed due to school refusal or some other reason; ( see S7).
Tim also responds to firm limits from Father (Father).
On these subtests Tim scored at the 6 th and 8 th percentile respectively; see (S3).
There are other broad purposes to the IDEA not relevant to this decision; see 20 U.S.C. 1400 (d) (1)(C).
FAPE also entails complying with the procedural requirements of the IDEA. A school district that violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1186, 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA”). Here Parents have not alleged that Dracut has committed procedural violations. The evidence shows that Dracut did commit a procedural violation by not developing an IEP for the GLEC program after the emergency TEAM meeting on October 4, 2007; however the procedural violation did not deprive Tim a FAPE because Parents were aware that Dracut was proposing GLEC and would have rejected that IEP if it were proposed.
Dracut’s IEP developed on March 24, 2006 for the Life Skills program at Dracut High School rejected by Parents on September 1, 2006 should have continued the ten minutes per week of services from the augmentative communication specialist because no evidence existed that Tim no longer required these services.
Once Tim is at GLEC, the augmentative communication specialist should explore whether Tim requires an augmentative communication evaluation. The evidence shows that Tim responds positively to computers and that some of his behaviors are related to frustration in communicating; ( see S7).