COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Duxbury Public Schools v. Student
BSEA # 07-3141
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
On November 28, 2006, Parents requested a Hearing in the above referenced matter1 . The hearing was held on March 16, 2007 at the BSEA, 11 Dartmouth St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Student’s Mother
Robert Kraus Attorney for Parents/Student.
Christine Blake Reach Educational Services
Joe Vedora Beacon Education, Assessment and Consultation, Inc.
Sharon Horton Special Education Director, Duxbury Public Schools
Ann Vitale Duxbury Public Schools
Jacqui Hill Duxbury Public Schools
Judy Riggs Plymouth Area Collaborative
Colby Brunt Attorney for Duxbury Public Schools.
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits PE-1 through PE-17; documents submitted by the Duxbury Public Schools (Duxbury) and marked as exhibits SE-1 through SE-6; recorded oral testimony and oral closing arguments. The record closed on April 6, 2007 upon receipt of the Parties written closing arguments.
ISSUES:
1. Whether Parents may challenge the ABA home service provider selected by Duxbury;
2. If so, whether REACH is an appropriate ABA home services provider.
POSITION OF THE PARTIES
Parents’ Position:
Parents state that they may challenge the ABA home service provider selected by Duxbury on the basis that it is an inappropriate service provider. Parents base their assertions on a previous experience with BEACON services. According to them, BEACON provided ABA home services between February and June 2005. Parents terminated these services and state that BEACON is an inappropriate service provider because the then behavioral educator failed to collect data during the course of the sessions, she spent little time on table-top activities, and Student demonstrated little progress during the three months that she offered services. Parents also state that BEACON’s behavioral educator was poorly supervised by Mr. Vedora. The fact that Mr. Vedora would be supervising the new behavioral educator and area service coordinator responsible for Student’s future ABA home services add to their concerns that BEACON’s services would be inappropriate.
When Parents discharged BEACON in 2005, they hired REACH to provide the home ABA services. Parents are very pleased with the services offered by REACH and wish for REACH to continue to be the ABA home service provider. They therefore, seek a finding from the BSEA that REACH is an appropriate provider and want Duxbury to be ordered to fund these services.
School’s Position:
Duxbury asserts that the issue before the BSEA is a very narrow one, namely a school’s right to chose its service providers, and challenge the BSEA’s jurisdiction to hear this issue. Duxbury states that decisions regarding staffing are left to school districts and asserts that BEACON is an appropriate service provider. The BSEA cannot therefore, instruct Duxbury to retain REACH as the ABA home service provider. Duxbury seeks a determination that BEACON is an appropriate provider.
FINDINGS OF FACT
1. Born on February 15, 2002, Student is a five (5) year-old resident of Duxbury. (SE-1) His eligibility and entitlement to special education are not in dispute.
2. Student has been diagnosed with Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS) as a result of an evaluation by the Developmental Medicine Center at Children’s Hospital. (PE-1) He also carries a diagnosis of asthma and has a mild wheat intolerance for which he has been placed in an 80-90 % milk and wheat free diet. Student’s expressive and receptive language skills fall in the deficient range whereas his visual spatial and nonverbal reasoning skills range from average to superior. (PE-2)
3. At the time Student turned three years of age, he was receiving a total of 24.75 hours per week of private and public school services including,
Inclusion Pre-school 12.5
ABA/ school 5.0
Speech/ private 1.5
Social Inclusion / private 2.0
ABA/ private 3.75 (PE-11)
4. BEACON provided Student home ABA service through Early Intervention from January 24, 2005 through February 14, 2005 when Student turned three years old. At that point, Parents retained BEACON privately to provide four hours per week of home-based ABA services. According to Mr. Vedora, four hours per week was considered a low intensity amount of time for a child with Student’s profile. The BEACON home-based services continued through mid May 2005. (Testimony of Mr. Vedora)
5. On February 5, 2005, Joe Vedora, M.S., BCBA, Area Service Coordinator and Lisa Keyes, Behavioral Educator, both from BEACON Services, performed a Behavioral Education, Assessment and Consultation. (PE-5) The evaluation focused on language and communication skills. At the time, student was receiving six hours of one-to-one instruction per week from a behavioral educator and two hours of supervision from the behavioral education supervisor. During the evaluation, Student’s attention was found to be excellent when attending to preferred items and activities such as puzzles, books, videos, or singing children’s songs and musical toys. (PE-5) He became easily distracted when working in areas, which contained preferred toys. Regarding communication, improvement had been noticed as occasionally he requested items using one-word utterances; he uttered approximations of words when attempting to imitate; when provided a verbal model, he could request help; and though he engaged in a high rate of babbling, much of it was unintelligible. His eye contact was excellent. Student’s receptive language skills were found to be delayed although he could follow one-step instructions familiar to him, and identify some objects with which he was familiar. With physical prompting, Student could perform/imitate the gross motor and fine motor tasks presented to him. Student was found to be an affable child interested in social interactions. He transitioned well from one activity to the next with minimal problems. A warning prior to completing an activity was helpful. He did not demonstrate difficulty separating from his mother and initiated simple social interactions with familiar people, such as the BEACON staff. Generally he complied with teacher directed activities although occasionally, he might protest. Overall, the evaluators noted steady and constructive progress. (PE-5) The evaluators recommended that the goals for home-based instruction continue to be further development of Student’s attentional skills; cognitive, communication, expressive, receptive and functional language skills; as well as social and emotional skills. The final goal was to transfer the skills Student learned in the one-to-one sessions to other settings and with family members. (PE-5) The BEACON assessment further provided specific goals and objectives seeking eighty percent (80%) accuracy across two consecutive sessions/trials. (PE-6)
6. The BEACON assessment report, dated February 6, 2005, recommended the following educational strategies:
Skills will initially be taught in a 1:1 setting, free from distractions, utilizing both discrete trial and natural environment training. Sessions will follow a predictable routine and incorporate the use of verbal, visual, gestural, and auditory cueing to communicate expectations. Concepts to be taught will be broken down into small observable steps and taught initially in isolation. The steps will be systematically chained to one another until the target skill is observed. In order to minimize errors and frustration, cues will be provided to perform a skill, then systematically faded, until independence and, or accuracy is achieved. Skills learned will be generalized to other adults, children where necessary, settings and materials. Reinforcement will be delivered in the form of a token system, verbal praise, and preferred toy, with the intent of increasing attending, compliance and responding. (PE-5)
7. Direct ABA home services were provided by Ms. Elizabeth Keyes who was supervised by Mr. Vedora during the period from February through mid May 2005, when Parent terminated the ABA services with BEACON. (Testimony of Mr. Vedora, Parent)
8. On February 28, 2005, BEACON submitted an invoice for provision of eight hours of home ABA services rendered during the month of February 2005. (PE-6) In March 2005, 13.5 hours of services were offered, 11.25 hours in April, and 7.5 hours in May 2005. (PE-7; PE-8; PE-9) Progress reports covering the period from February though April 2005 state that Student was progressing toward meeting his goals in all ten objectives addressed (out of fifteen total objectives). The other five objectives had not yet been addressed. (PE-7) BEACON’s April 1 report states (under the case management heading) that Student’s sessions were becoming more structured, and gradually more tabletop activities were being introduced. It further states that data collection on specific objectives was limited as a result of the sessions’ focus on shaping in-seat behavior and responding. (PE-7) The grid summaries of the objectives and number of trials included in PE-6, PE-7, PE-8 and PE-9 are identical in terms of the objectives worked on and Student’s performance during the period from the end of February through mid May 2005. Parent testified that she never saw Ms. Keyes keeping data in the Daily Data Forms included in PE-10 until the documents were produced in preparation for Hearing. (Testimony of Parent) BEACON’s progress reports indicate that data was taken during the sessions. (PE-7; PE-8; PE-9)
9. Parent did not inform BEACON of her reasons for termination of services. Rather, she sent an e-mail to an administrator at BEACON thanking the behavioral educator and Mr. Vedora for their work. (Testimony of Mr. Vedora)
10. Parent asked Christine Grover Blake, M.Ed., of REACH Educational Services, to perform an independent evaluation so as to assemble a comprehensive service plan regarding ABA services that met Student’s learning profile. (PE-11) She is certified in Massachusetts in Intensive Special Needs, and has provided direct instruction, implemented treatment, and engaged in the development, design, and implementation of ABA services for children on the autism spectrum since 1992. (PE-17) Her experience includes working at the May Center from 1995 through 2000. ( Id. ) Ms. Blake reviewed several evaluation and educational records for the period from February 2004 through February 2005 and observed Student for approximately 45 minutes while in his ABA session with BEACON on April 12, 2005. (PE-11) Parent and Mr. Vedora were also present. At first, Student appeared to be distracted by the adults in the room, but he was able to settle into his routine within minutes. During table time, Student was able to answer personal information questions with minimal verbal prompting and worked on an ABC game. During the latter drills, Student was attentive but required more promptings to perform the tasks. Student was rewarded with trucks and cars, but he did not relinquish these items before starting other trials. The table time lasted approximately seven minutes after which he transitioned to the play area independently. Student was tolerant of the attempts made by the adults to engage in play with him, but he continued to follow his own play agenda for most of the twenty minutes he remained in the play area. (PE-11) Student was given verbal and physical prompting to return to the work area where he remained for approximately three minutes working on a bead-stringing task before he transitioned back to the play area without completing the task. (PE-11)
11. Ms. Blake recommended that a qualified coordinator be identified to coordinate and monitor all the different services and therapies so as to ensure consistency across all settings. (PE-9) Consistent, total communication guidelines should be followed by all the adults interacting with Student across settings including the use of the Picture Exchange Communication System (PECS) by a certified instructor. Reduction in behavioral outbursts and frustration could be achieved by using visual cues to support Student’s understanding of directions, expectations, transitions, and to increase predictability of environmental demands. (PE-9) She further recommended careful programming to address social interaction skills not initiated by Student, and consistent choice making when offered two alternatives. Lastly, thoughtful consideration should be given to developing receptive understanding of all targeted concept areas even when Student’s expressive language skills were considerably delayed. (PE-11)
12. Parent testified that during the time she contracted with BEACON to provide Student ABA services, she was present during all of the sessions, and she observed very little tabletop activities and no collection of data. (Testimony of Parent) Ms. Blake also noted quite a bit of play, little tabletop activities and no collection of data during her observation in April 2005. (Testimony of Ms. Blake)
13. BEACON’s Discharge Summary report, dated June 10, 2005, states that Student evidenced progress during the ABA sessions. (PE-9) It states that he increased clarity and frequency of vocal approximations, demonstrated increased flexibility regarding relinquishing preferred items, matching and sorting items, following instructions, began to acquire the early phases of the PECS, and increased his ability to sit and attend during tabletop activities. (PE-9) According to Parent, she later understood that the PECS was not implemented in a manner consistent with how it was designed, as Student was not exchanging the pictures for engaging in preferred activities or communicating desires. (Testimony of Parent)
14. Prior to May 2005, Duxbury contracted with Christine Blake of REACH to provide ABA services to some of its students. However, effective June 30, 2005, Duxbury terminated all of its contracts with Ms. Blake and REACH. (SE-7; Testimony of Ms. Horton)
15. Student began receiving parentally provided ABA home services with Christine Blake of REACH in May 2005 and continued to receive said services through July 2006. (PE-12) After a period of approximately four months, during which the Pilgrim Area Collaborative Extended Support Program (PACES), part of the PAC program with which Duxbury contracted, provided home-based ABA services, Christine Blake resumed the ABA services in the home. Ms. Blake was still providing home-based ABA services at the time of the Hearing by agreement of the Parties. (PE-12; Testimony of Parent, Ms. Blake, Ms. Horton) The home programming reports provided by Ms. Blake indicate that Student made progress in all areas targeted in the ABA sessions with REACH. (PE-12; Testimony of Parent, Ms. Blake)
16. On July 13, 2005, Mildred O’Callaghan, the then administrator of Special Education for Duxbury, notified Christine Blake of REACH that effective June 30, 2005, Duxbury would terminate all contracts for provision of ABA services. (SE-72 )
17. On November 10, 14, and 30, 2005, Katherine Gamble, Psy. D., neuropsycho-logist, and Jessica Leavell, Ph.D., performed a neuropsychological evaluation of Student at Parents’ request. (PE-1) Student was three years eight months old at the time of this evaluation. The tests listed below were administered as part of this evaluation in conjunction with conducting parental interviews, clinical observations, and a review of the medical records:
Leiter International Performance Scale- Revised;
Wechsler Preschool and Primary Scale of Intelligence- Third Edition, subtests (WPPSI-III);
Preschool Language Scale- Fourth Edition (PLS-4). (PE-1)
Additionally, the Vineland Adaptive Behavior Scales-Interview Edition, the Achenbach Child Behavior Checklist (CBCL), and a developmental questionnaire were completed by Mother, and his special education preschool teacher completed the Achenbach Teacher Report Form (TRF). (PE-1) At the time of the evaluation, Student was participating in the Chandler Integrated Preschool Program in Duxbury, under an IEP, and was also receiving eight (8) hours of ABA services per week through REACH Educational Services.
18. During the evaluation Student exhibited good eye contact and social referencing. However, he had difficulty complying with instruction and attending to tasks, requiring a great deal of structure and reinforcement. (PE-1) The neuropsychological evaluation found Student’s nonverbal performance to fall in the high average level with variability in the subtest scores especially with tasks involving higher-level, non-verbal reasoning skills, ranging from Average to Superior. (PE-1) Formal testing of Student’s language skills showed his expressive and receptive language skills to fall two and a half (2½) years below age expectations, placing him in the Deficient range. Single word receptive vocabulary was found to be age-appropriate, which means that while he understands single words, he has difficulty understanding more abstract aspects of language mechanics. The evaluators found that Student’s functional language abilities were at the two year, one month (2.1) age equivalence and that he uses the skills he has acquired in daily living. (PE-1) Student’s social skills fell within the Borderline range. Student displayed an interest in peers and demonstrated a preference for friends. He engaged in gross motor play but could not participate in formal games with other neighborhood children. Overall, he came across as shy, was inconsistent in his responses to others, did not show an interest in their activities, and was slow to warm-up to others including family members. He responded to the affection shown by others and displayed affection inconsistently. (PE-1)
19. The neuropsychological evaluation also evaluated Student’s daily living skills which were found to fall more than one year below age level. (PE-1) He could feed himself with a fork and a spoon, brush his teeth, wash and dry his face without assistance, and was making progress with toilet training. His ability to dress himself was not age appropriate, and he failed to display consistency in his ability to understand and follow safety rules. From an emotional standpoint, he was described as sensitive, and easily frustrated, becoming overwhelmed in large crowds, in new situations, and with new people. He could be uncooperative and struggled with attention at times. Student displayed mild atypical behaviors, including jargoning and echolalia. His ABA therapist, opined that he may also engage in verbal self-stimulation. Mother, however, opined that the latter was an attempt by Student to communicate experiences to others, thwarted by his inability to use words. The evaluators stated that the progress shown by Student during the previous year regarding language skills was encouraging. Given his strengths, implementation of structured services was critical to ensure utmost success during this period of growth. The findings were consistent with a diagnosis of PDD-NOS. (PE-1)
20. The following recommendations were made as part of the neuropsychological evaluation.
· Participation in a small, full day specialized preschool program (20-30 hours per week) that addresses his language-based and social skills. The classroom should be designed to meet the needs of children in the PDD spectrum, provide intensive services and be behaviorally structured.
· Continued half-day participation in a structured integrated classroom, which includes special needs and typically developing students.
· Provision of more intensive, substantially separate services during the remainder of his day using Applied Behavioral Analysis (ABA) the majority of his time in this setting, at least ten hours [per week], should be spent in one-to-one discrete trial teaching and should include data collection for monitoring skill acquisition and maintenance. As Student progresses, the one-to-one model should be changed to two-to-one ABA sessions to work on pragmatic and social skills.
· An aide experienced in working with PDD students should be provided during the integrated part of his day to assist with the acquisition of skills in a one-to-one or two- to-one student/aide ratio.
· Student’s Team must include a behavioral specialist with expertise in working with students on the autism spectrum, who is a Board Certified Behavioral Analyst or is board eligible, to provide consultation to all those working with Student and oversee implementation of the ABA program.
· The primary focus of the initial ABA services should be on developing foundation skills for learning, such as, following directions, building communication, and directing and sustaining attention, so that he can learn to generalize these building blocks across all settings.
· Provision of direct speech and language services should be an inherent part of Student’s behavioral program and should be addressed throughout the day. These services must be provided and supervised by a speech and language pathologist experienced in dealing with the PDD population. Given Student’s visual strengths, visual strategies are recommended to augment his communication.
· Social and play skills must also be addressed in a structured manner through direct instruction, facilitation and support when applying the acquired skills in the integrated setting and beyond to other settings.
· Adaptive daily living skills using an ABA approach with progressive goals. Issues of safety, frustration and anxiety related to new situations and people must also be addressed.
· A coordination component relative to training skills at home and in school, by an ABA therapist supervised by the behavioral consultant, must also be built into his program to assist with generalization of learning across all settings. “The same behavioral consultant overseeing [Student’s] school program will need to develop a comprehensive behavioral plan for the home environment to build his compliance, reduce self-directed behavior and particularly to generalize his functional use of language as well as other skills addressed in the school environment.” Student’s home goals must also include daily living and emotional regulation skills. The home services should be eight to ten hours per week, but can be adjusted as is deemed appropriate, and must include parent training.
· All personnel working with Student must have experience working with children on the autism spectrum and must be familiar with behavioral techniques. If multiple staff is required, overlapping supervision must be planned to ensure the proper integration of all elements of the school and home program. Critical to the success of the behavioral program will be consistency of the caregivers and uniformity in the implementation of the program.
· To avoid regression, a year round program with breaks no longer than ten calendar days was recommended. (PE-1)
21. Dr. Gamble and Dr. Leavell recommended that Student return for a neuropsychological evaluation in one year from the date of this evaluation. (PE-1) Dr. Gamble noted that “she was impressed with the level of support and success that Student experiences during his integrated preschool time…while there were brief periods of lost communication opportunities for [Student] the teacher was well able to facilitate communication and makes an effort to make each experience an active learning opportunity.” (PE-2; PE-1)
22. A March 10, 2006 Children’s Hospital Developmental Medicine Center note by Iris Silverstein, Developmental-Behavioral Pediatrician, states that Mother reported Student’s developmental gains in the communication area. (PE-2) He was reported to be ninety percent intelligible to Mother and about fifty percent intelligible to others with a 250 words vocabulary gain between June 2005 and March 2006. Student was reported to be social in school and he enjoyed playing with a couple of friends and his brother. He followed two-step requests. (PE-2) His favorite play included bouncing, bike-riding, and gross motor activity. He engaged in pretend play. He was learning sharing and turn taking. At the time of this visit, Student was receiving services in pre-school inclusive of occupational therapy, speech and language therapy, 40 minute ABA sessions and participation in an integrated classroom with 13 children, two aides and a teacher. He was also receiving two hours of ABA services, four days a week at home. The therapy was provided by REACH. Student also received one hour per week of social skills training. (PE-2) Parents had privately arranged for Student to receive once-per-week speech and language therapy initially, which would increase to twice per week soon thereafter. He was reported to eat well and largely dress himself. (PE-2)
23. During Dr. Silverstein’s evaluation, Student maintained good eye-contact, was able to stabilize and cut paper using scissors appropriately, engaged in play appropriately with Mother and the evaluator, responded to questions asked of him appropriately, was able to identify several animals, and could identify most figures and some colors. His gross motor skills were good. He, however, was not able to stand on one foot. (PE-2) The physical examination was normal. Dr. Silverstein reported a discrepancy between the ABA services in the school and the home. While services in the home were thought to be appropriate, the school based ABA program was limited and was delivered in a noisy setting which caused Student to be distracted, and there was inadequate data collection. Dr. Silverstein recommended an occupational therapy evaluation by an occupational therapist with expertise in sensory integration. Dr. Silverstein also recommended extended school year services. (PE-2) In her opinion, crucial time was being wasted and Student would be able to display greater gains in communication, language, and social skills with more intensive, appropriate services. Dr. Silverstein recommended revisions to Student’s IEP consistent with the recommendations with Dr. Gamble’s neuropsychological evaluation and classroom observations. (PE-2) Her recommendations also included participation in a half a day, five days per week small, substantially-separate classroom for children with autism, ABA to be used throughout the day, assessment and data collection, a learning environment relatively free of distraction, intensive speech and language services, and an ABA-trained aide assigned to facilitate activities and learning especially during unstructured times in the integrated preschool class. An ABA-trained behavioral consultant should be provided in the home component to assist with generalization of skills in settings other than the classroom, and to address behavioral and social issues in the home. In addition to some other medical recommendations, she suggested a return visit in six months. (PE-2)
24. The Children’s Hospital report states that Student’s receptive and expressive language skills had been found to be a year or more below age expectation as per a speech and language evaluation performed on December 15, 2006. (PE-2) Articulation and phonological skills were found to be mildly impaired and were characterized as a phonological disorder with sound sequencing delays. (PE-2)
25. On April 12, 2006, Duxbury forwarded a notice of proposed school district action to Parents. (PE-14; SE-1) The notice stated that the Team convened on April 7, 2006, to discuss the results of the private evaluations, its recommendations, and proposed program and placement for the January 2006 to January 2007 school year. General considerations in this IEP include social emotional skills, assistive technology devices and services, communication skills, and occupational therapy. This IEP offered Student placement in a center-based Early Childhood Program. The Team proposed that Student receive six hours per week of home instruction through the PACES program for the duration of the IEP including the summer. In school, Student was offered participation in a full-day program starting in September 2006 with a one-to-one support to assist him with explicit instructions, new skills, and generalization of skills. (PE-14) The Team determined that Student did not require the one-to-one assistant all day so as to make effective progress. During the morning hours, Student would be integrated with typically developing students and in the afternoon he would receive intensive instruction, structured play and a social group with a small number of students with special needs. (PE-14) The grid section of the IEP also offered weekly consultation for occupational therapy, speech and language therapy, special education instruction, home support, and consultation by an autism specialist. Additionally, it offered direct integrated preschool and speech and language services in the general education classroom. ( Id. ) Lastly, Student would receive tutoring five times per week, occupational therapy once per week, and speech and language therapy twice per week. (PE-14; SE-1)
26. Two options were offered regarding summer programming under the January 2006 through January 2007 IEP. One called for participation in a four day, four week integrated summer program, and the other offered a five and one half week, full-day non-integrated program at the Pilgrim Area Collaborative for students with special needs. (PE-14; SE-1) This IEP was accepted by Parent on May 18, 2006. ( Id. )
27. Student has been enrolled at the Pilgrim Area Collaborative (PAC) since July 2006 pursuant to the January 2006 to January 2007 accepted IEP. (Testimony of Mother, Ms. Horton)
28. On August 9, 2006, Parents requested that Katherine Gamble, the clinical neuropsychologist who had evaluated Student in 2005, review paperwork from Student’s home program. (PE-3) She did not have any conversations with the professionals running the program, she did not have any data to review, as the instructor had not yet been provided data sheets, nor did she observe the program. She concluded that some of the goals were not consistent with her findings in her neuropsychological evaluation and addressed areas in which Student had tested in the superior or average range. She noted lack of specificity in the written program, no introductory guidelines and no information as to whether and how to collect data. (PE-3) She opined that Student also required a behavior plan that addressed his frequent non-compliant behaviors. Based on the paperwork reviewed, Dr. Gamble recommended:
… a systematic assessment of [Student’s] skills, with program choices then based upon his determined level of functioning in specific areas. Program goals should primarily address communication, social skills and verbal reasoning, as his nonverbal cognitive skills are strong. A set or guidelines for running programs and managing behaviors should be created for clarity as well as for consistency across instructors and across time. [Student’s] baseline skills should be outlined for each program. Each program should also have a detailed description of the criteria for reinforcement, for moving to the next step, for correction, for remediation and for mastery. Data collection is crucial for tracking progress and to identify whether he meets criteria for one of the above actions. Data should also be collected on maladaptive behaviors to determine patterns and to most effectively create a behavior management plan. Programs should have task or item lists to guide instructors on the next step, with discrimination trials built in (e.g., work on “under”, then “behind”, then on discriminating between “under” and “behind” before adding a new preposition). (PE-3)
29. On September 27, 2006, Duxbury forwarded an Amendment to the IEP dated January 22, 2006 through January 27, 2007, proposing to make several changes. (PE-15; SE-2) In methodology and delivery of instruction, developmental learning would be combined with ABA principles, and progress reports would be provided on a quarterly basis. Student would have access to a modified preschool curriculum. The consultation by the special education teacher and the autism specialist was removed, and instead, family support by the special education teacher was added once per month for twenty minutes starting in October 2, 2006. (PE-15; SE-2) Speech and language therapy would not be offered as a related service in the general education classroom, and from the C part of the grid, Preschool/ Early childhood services, tutoring, and extended day program were removed. Instead, Speech and language was offered three times per week for thirty minutes, and two hours (for a total of eight hours per week) were added to the home program, which would be offered by the Pilgrim Area Collaborative Extended Support Program (PACES). The program would focus on readiness skills for five times, 116 minutes per week and on social emotional areas for five times 90 minutes. All the aforementioned changes would go into effect on October 2, 2006. The non-participation justification section would remove all language regarding small group or individual instruction participation within the motor room once per week and the speech therapy room twice per week, and add that Student “would be unable to comply with and benefit from a more traditional educational placement.” (PE-15; SE-2) The IEP also added language that offered participation in a structured summer program to help Student prevent regression and maintain skills. Under additional information, the following language was added
– A structured summer program is available to help prevent regression. Targeted goals are prioritized by the classroom teacher and carried out by the summer school staff.
– Maintaining a partnership with the family is an integral part of the PAC program. A home component is available including ongoing communication between home and school through a home school notebook, observations, conferences and home visits as needed.
– [Student’s] program employs an integrated related services approach. SLP, OT & PT are delivered in context to the educational goals and objectives and activities established by the student’s Team. Each therapist uses his/her expertise to provide direct, indirect and consultation support as he/she and the classroom teacher determines what best meets the student’s needs. This approach ensures that the expertise of the related service personnel is being carried over during the student’s entire educational program. Although individual disciplines are listed with their corresponding times and frequencies, the integrated approach provides the Team with the flexibility to adjust the delivery model to ensure the greatest opportunity for the student to generalize his/her skills across familiar and unfamiliar people, places and things.
– [Student] currently receives music therapy 1 x per week during the PAC school year.
– Due to a scheduling conflict resulting in a delay of the implementation of home services (proposed start date 6/1/2006, actual state date 6/16/2006) the district has agreed to provide the family with 22 hours of compensatory PACES home service hours. (PE-15)
All the changes in this IEP reflected Student’s new placement at the Pilgrim Area Collaborative (PAC). (PE-15; SE-2) This IEP increased the amount of home-based ABA services to eight hours per week. (PE-15; SE-2) On October 23, 2006, Parents rejected this IEP amendment in part, specifically to the extent that it provided that ABA services would be delivered by PACES. According to Parents, PACES had failed to provide “competent and effective ABA services” to Student. (PE-15; SE-2) PACES provided Student’s home-based services between June and October 2006. (Testimony of Ms. Horton)
30. On October 10, 2006, the Pilgrim Area Collaborative forwarded to Parent Student’s Program Book. (PE-4) Also in October 2006, PACES terminated its contract with Duxbury to provide services to Student. (Testimony of Ms. Horton)
31. Since May 2005 and throughout all relevant periods, Parents continued to retain REACH to offer Student additional home-based ABA programming. (Testimony of Ms. Blake, Parent) During the time that Christine Blake of REACH provided the home ABA program, there was effective coordination with the Duxbury teachers. (Testimony of Parent, Ms. Blake) On January 16, 2007, the parties began generating a baseline of skill generalization from the school to the home. (PE-12)
32. The January 29, 2007, IEP home program goal calls for Student to increase his ability to perform self-care routines and leisure skills more independently, while maintaining previously mastered skills and demonstrating it in four out of five opportunities. (PE-13) Tasks to be worked on also included coloring inside simple pictures while staying within the lines; creating simple drawings with simultaneous model and verbal direction, and progressing toward verbal choice; participating with no more than two adult re-directs in a five task independent work schedule; engaging independently in numerous visual spatial play activities without prompting; engaging in reciprocal conversation involving four interactions with different adults, siblings and peers; learning to dress himself including managing zippers, fasteners, snaps, and learning tag placement; verbally labeling pictures as dangerous or safe, stating the danger, and an alternative response; and, generalizing within the home ten previously- mastered school programs across settings, adult instructors, materials and in game format with a peer or sibling. (PE-13)
33. Student’s IEP for the period covering January 2007 to January 2008, calls for services to be offered in a full-day, intensive program that addresses Student’s cognitive, language, and visual-motor difficulties through a structured, visually-supportive, and predictable program with a high staff-to-student ratio. (SE-3) The program offered extended day and extended school year services (no less than five weeks long). Services to Student would be offered through a combination school program at PAC and home ABA services. ( Id. ) The grid provides for the following consultation services: school consultation by the home ABA program one times sixty minutes per month; family support by the PAC staff one time 120 minutes per month; home consultation/Su by the ABA staff one time 120 minutes per month; communication consultation by the speech and language pathologist; one time fifteen minutes per week; and, occupational therapy consultation one time fifteen minutes per week by the occupational therapist. (SE-3) The early childhood special education teacher would provide direct services in the integrated preschool four times per week time 150 minutes. Student would also receive the following direct services in other areas: home programming by the ABA staff six hours per week; communication services by the speech and language pathologist 90 minutes per week; occupational therapy by the occupational therapist 60 minutes per week; readiness skills by the PAC staff five times per week for 60 minutes; social participation five times 90 minutes per week by the PAC staff; and ADL’S/self-help five times 48 minutes per week by the PAC staff. (SE-3) Extended school year services would be provided by the PAC staff for five weeks. (SE-3)
34. Parent asserts that the services provided by REACH for Student from November 2005 through July 2006 and October2005 through March 2007 have been appropriate. (Testimony of Parent) Prior to the Hearing, the Parties settled the compensatory portion of Parents’ Request for Hearing.
35. In January 2007, Duxbury contracted BEACON to provide home ABA services for Student. (Testimony of Ms. Horton; Parent; Mr. Vedora) At the time it contracted with BEACHON, Duxbury was not aware that BEACON had worked with Student in 2005. (Testimony of Ms. Horton) According to Mr. Joseph Vedora, Vice President of Educational Services for BEACON since 2006, direct home services will be provided by Barbara Cross who will be supervised by David Dilley. (Testimony of Mr. Vedora) Mr. Vedora will supervise Mr. Dilley, the area coordinator. ( Id. )
36. In 2001, Mr. Vedora obtained a Masters of Science in Applied Behavior Analysis from Northeastern University. He has been a Board Certified Behavior Analyst since 2001. (SE-4) His experience with children with autism, PDD, and severe behavior disorders began in 1995 when he worked as a Child Development Specialist at the May Center for Child Development. Mr. Vedora held this position until 1997 when he began working with BEACON first as an inclusion specialist, then as a home educator in 1998, and then as an area service coordinator between 2001 and 2005 prior to becoming vice president of educational services in 2006. In his current position, he oversees five regions in the South Shore in Massachusetts, and provides administrative and clinical support for Early Intervention and school age students. (SE-4)
37. Mr. Dilley holds a Masters Degree in Education, which he obtained in 2003 from Fitchburg State College. (SE-5) He is currently working toward certification in Behavioral Analysis to become a BCBA, which he expects to complete by June 2008. Mr. Dilley has worked for the South Shore Collaborative and the May Center for Educational and Vocational Training. He joined BEACON in June 2006. Since August 2001, he has also worked for the Hanover Public Schools as a Teacher/Educational and Behavioral Consultant, for children pre-school to middle school. (SE-5)
38. Ms. Barbara Cross received her Masters in Education in 1977 from Boston State College and is currently working to receive her certification in Behavior Analysis to become BCBA certified. (SE-6) She expects to complete this certification by June 2008. Ms. Cross began working for BEACON in November 2001. Prior to that, she worked as an Educational and Behavioral Consultant and Early Childhood Liaison at the Autism program and as an inclusion specialist for Boston Public Schools. (SE-6)
39. BEACON Services Inc. currently contracts with approximately thirty-seven public school districts throughout Massachusetts. (Testimony of Mr. Vedora) It is one of approximately ten providers approved by the Massachusetts Department of Public Health to provide Early Intervention services to children on the autism spectrum in Massachusetts. (Testimony of Mr. Vedora) According to Mr. Vedora, BEACON’s staff undergo extensive training regarding research developments and teaching techniques for students on the autism spectrum at the time of hire and they also participate in extensive continuing education programs offered to all staff. Mr. Vedora testified that David Dilley and Barbara Cross have undergone training. (Testimony of Mr. Vedora)
40. At the time of the hearing in March 2007, Student attended the integrated pre-school program at the Pilgrim Area Collaborative consisting of 29 hours per week integrated preschool programming, 8 hours per week of home-based services and 180 minutes a month consultation time to the home-based service providers in regards to home services. (SE-1; Testimony of Ms. Horton)
41. Sharon Horton, Administrator of Special Education for Duxbury, testified that her responsibilities include hiring private providers to offer special education services to Students in Duxbury as needed. She has not considered contracting with REACH as a private provider. When securing contracts with private providers she ensures that the staff is highly qualified; have expertise in the management and delivery of the services sought to be provided for the particular population, herein children on the autism spectrum; are able to provide a Board Certified Behavioral Analyst (BCBA) or Ph.D. level supervisor; have experience with the development and management of programs; enjoy a good reputation for providing consistent and reliable service providers; and, are able to work collaboratively with school personnel. (Testimony of Ms. Horton)
42. Ms. Horton was responsible for the decision to hire BEACON to offer home-based ABA services to Student after arrangements with PACES were terminated. She followed the recommendations of Ann Vital, Duxbury’s Early Childhood Coordinator, in considering BEACON and after reviewing the information available to her, determined that BEACON would be an appropriate provider. (Testimony of Ms. Horton)
CONCLUSIONS OF LAW
Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act3 (IDEA) and the state special education statute.4 As such, Student is entitled to a free appropriate public education (FAPE).5 Student’s eligibility status and entitlement to FAPE are not in dispute. The parties’ only dispute is Duxbury’s decision to hire BEACON to provide the home ABA services in light of Parents’ assertion that BEACON is inappropriate and their preference for the REACH services.
The IDEA and the Massachusetts special education law and regulations promulgated under those acts mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs6 in a way reasonably calculated to enable the student to make meaningful7 and effective8 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.9 Under the aforementioned laws, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .10 Educational progress is then measured in relation to the potential of the particular student.11 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.12
The central issue in the case at bar is Duxbury’s right to choose a service provider. As the moving party, Parents carry the burden of persuasion regarding the issues presented herein. Shaeffer v. Weast , 525 U.S. 983 (2005).
Student is a five-year-old resident of Duxbury who has been receiving special education services since the age of three due to a diagnosis of PDD/NOS. (SE-1; Testimony of Parent) While in early intervention, Student received home ABA programming through BEACON between February and May 2005. Parent terminated these services due to concerns that Student was failing to make progress. Parent, who was present during the ABA sessions with BEACON, testified that Ms. Keyes, the service provider, was not observed to collect data during the sessions, and her reports for the months of March, April, and May 2005 were identical. Parent further states that BEACON’s staff failed to perform comprehensive baseline testing and lacked knowledge of Student’s IEP. (Testimony of Mother) Ms. Keyes’ failure to collect data was also observed by Ms. Blake of REACH during her observation of April 2005. Ms. Blake further testified that Ms. Keyes spent a great deal of time in play activities and little time in tabletop activities. She, as well as Parent, also commented on Ms. Keyes’ inappropriate use of PECS. (Testimony of Mother)
As a result of Ms. Blake’s evaluation of the BEACON home ABA services, Parents discharged BEACON and engaged Ms. Blake to provide home ABA services in May 2005. At the time that Ms. Blake began working with Student, he was non-verbal, but since then he has made documented educational progress. (Testimony of Mother, Ms. Blake, Mr. Vedora) While working with REACH staff, Student began to speak in five word sentences.
On or about June 2006, the PAC engaged PACES to provide the home ABA services. PACES offered six hours per week of direct services to Student and three hours of consultation per month. PACES stopped providing the services in the home on or about November 2006. Parent testified that PACES failed to provide services consistent with Student’s IEP. During the time PACES offered the home ABA services, Parents continued to privately engage Christine Blake of REACH to provide four hours per week of direct ABA discrete trial training home services and three hours per week of consultation services. According to Ms. Blake and Parent, REACH maintained a cordial and collegial relationship with the PAC service providers and communicated effectively with them. (Testimony of Mother, Ms. Blake)
Parents strenuously object to BEACON providing the ABA services in the home based on their past experience with this provider. (Testimony of Mother) Parent is also concerned about putting Student through yet another transition regarding service providers especially since, according to Parent, Student does not have many years left to avail himself of discrete trial, home-based ABA training. ( Id .)
As discussed above, school programs must be reasonably calculated to provide students effective results and allow them to make meaningful, effective progress. In providing eligible students special education and related services, decisions regarding selection of personnel fall within the purview of school districts, as these are seen as administrative decisions, except where the selection of a service provider results in deprivation of a FAPE to the student.13 In the instant matter, Parents argue that the services that would be provided by BEACON, the district’s proposed vendor would be so inadequate that they would result in a denial of FAPE to Student. I begin by examining the BEACON program.
The weight of the evidence supports a finding that BEACON is an appropriate service provider. Mr. Vedora testified that BEACON Services, Inc. is one of approximately ten providers approved by the Massachusetts Department of Public Health to offer Early Intervention services for children on the autism spectrum. (Testimony of Mr. Vedora) BEACON contracts with approximately thirty-seven public school districts throughout Massachusetts. (Testimony of Mr. Vedora) At the time of hire, the staff undergoes extensive training regarding research developments and teaching techniques for students on the autism spectrum, and must also participate in extensive continuing education programs offered to all staff. (Testimony of Mr. Vedora) In November 2005, Dr. Gamble and Dr. Leavell recommended that the behavioral specialist working with Student should be “at minimum a Board Certified Behavioral Analyst (BCBA) or board eligible, with expertise in the design and implementation of programming for children on the PDD spectrum.” (PE-1) A similar opinion can be found in PE-2, by Dr. Silverstein who in March 2006 recommended that the home service component be provided by an ABA trained behavioral consultant. (PE-2)
The proposed direct service providers through BEACON, Mr. Dilley the supervisor, and Ms. Cross, the home service provider, have never worked with Student in the past, but they possess and indeed exceed the qualifications necessary to offer the home ABA services they would be respectively responsible to provide. (Testimony of Mr. Vedora, Ms. Horton, Mother; SE-4; SE-5; SE-6) Both Mr. Dilley and Ms. Cross have had extensive experience in working with children on the autism spectrum. Both Mr. Dilley and Ms. Cross are working toward their BCBA certification, which they will obtain in June 2008. (SE-5; SE-6) There is nothing in the record to suggest that either of these providers is not qualified to provide the services they will be responsible to provide, and without the benefit of their testimony, I must rely on their resumes and the testimony offered by Mr. Vedora.
When the evidence, as in the case at bar, supports a finding that the program proposed by the district is reasonably calculated to allow a student to make meaningful effective progress, then administrative assignments of qualified personnel to provide the specific service is left to the discretion of the district. See Hendrick Hudson Dist. Bd . F Educ. v. Rowley , 458 US 176 (1982); Roland M. v. Concord School Committee , 109 F. 2d 983 (1 st Cir. 1990); In Re: Medfield Public Schools , BSEA # 04-0706 (MA SEA 2004, Crane); In Re: Ipswich Public Schools , BSEA #05-3855 (MA SEA 2005, Figueroa); In Re: Ipswich Public School s, BSEA #07-0962 (MA SEA 2007, Berman).
Guidance on this issue can be found at 34 CFR 300.156(b)(1) addressing the qualifications of service providers, stating in pertinent part that related service personnel must have qualifications
Consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services.
As previously stated in In Re: Ipswich Public Schools , “while it is desirable and necessary for Parent’s observations and opinions to be considered, the ultimate decision regarding the selection of service providers lies with the school district.” BSEA # 05-3855 (2005). This position is consistent with the court’s position in Rowley , stating that
the primary responsibility for formulating the education to be accorded a handicapped child and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardians of the child…. [ Rowley, at 207-208.]
According to Ms. Horton, Duxbury considered Parents’ observations and opinions regarding BEACON and REACH but ultimately decided to contract with BEACON based on its qualifications and overall record. Duxbury also took into account the district’s previous experience with REACH. Without a showing that BEACON is inappropriate or that Student’s needs are so unique that higher credentials are required to afford him a FAPE, Duxbury’s selection of service providers cannot be usurped by the Hearing Officer. IDEA is clear that the responsibility for choosing the special education and related services providers for eligible students lies with the school district.14
In presenting their case, Parents did not present testimony from Mr. Dilley and Ms. Cross the BEACON personnel actually responsible to provide direct services to Student. Without the benefit of testimony from Mr. Dilley and Ms. Cross, all that is left regarding their ability to provide appropriate services to Student is their CVs and the testimony of Mr. Vedora. In looking at the relevant evidence on point, SE-5 and SE-6, Mr. Vedora’s testimony regarding Mr. Dilley and Ms. Cross, and the fact that approximately thirty seven other districts throughout Massachusetts use their services, it is reasonable to conclude that BEACON’s personnel are qualified and have sufficient expertise to provide the home ABA services to Student. Additionally, Duxbury will be ultimately responsible to ensure that the proper services to Student are delivered. Student’s IEP provides consultation at a rate of 180 minutes per week of home support through PACES, and one time thirty minutes15 consultation by the autism specialist, thereby creating opportunities for Student’s home-based program to be monitored and for consistency across settings and providers. (PE-14; SE-1)
Parents argue that Student did not make effective progress during the three months that he received services from BEACON when he turned three, and attributes this in part to the many responsibilities Mr. Vedora had in supervising multiple programs in 2005. (Testimony of Mother) The record is lacking in evidence to support Parents’ argument that staffing levels and staff responsibility ratios would adversely affect the provision of services to Student by the new providers even if the levels were to remain the same as they were in 2005. Additionally, a successful challenge by Parents would have to show that BEACON’s personnel were not qualified, and that they could not provide appropriate services to Student, something Parent has not been able to show persuasively. Parents also argue that BEACON will not be able to maintain the level of service provided by REACH. The issue is not whether BEACON can maintain the level of service that REACH has maintained but rather whether BEACON is an appropriate provider, whether its staff is qualified and whether the services to be delivered by them will afford Student a FAPE. In challenging the District’s proposed service providers, Parents carry the burden of proving that the proposed providers are inappropriate and I find that they did not meet that burden consistent with Shaeffer v. Weast , 525 U.S. 983 (2005). Parents did not present sufficient evidence to conclude that the services to be provided by the new BEACON staff assigned to work with Student will be inappropriate and will deprive Student of a FAPE.
Mr. Vedora’s and Parent’s testimony were contradictory, especially with respect to data collection. While it is clear that Mr. Vedora knew what should be done, it is not so clear that he knew what was actually going on, and he could not remember specific information. In this regard, I credit Parent’s testimony.16 The evidence is persuasive that in the past Ms. Keyes, of BEACON, failed to consistently collect data during the home-based ABA sessions even though she may have recorded the information later that day. PE-10 contains some of Ms. Keyes’ daily data collection. Parent testified that she had not seen these documents until shortly before the hearing. Mr. Vedora testified that these were the types of data collection sheets he expected Ms. Keyes to have used during the sessions. (Testimony of Parent, Mr. Vedora)
Parent also alleges that Ms. Keyes may not have used the PECS effectively, and that on the day of the observation by Ms. Blake, Ms. Keyes may have spent too much time in play activities rather than on table-top activities. The record lacks sufficient evidence for me to ascertain whether the allegations regarding the sufficiency of time spent in tabletop activities was a one-time incident or a theme during the three months Ms. Keyes worked with Student. It must also be noted that on the day of Ms. Blake’s observation of Student, Mother and Mr. Vedora were also present. It is unclear how the presence of four adults may have impacted on Student’s ability to focus on the task at hand during the session. Regarding the use of the PECS, the evidence shows that it was being introduced and that by May 2005, Student had not yet acquired an understanding of how to use the program effectively. (Testimony of Mother)
Even if the services offered by Ms. Keyes and Mr. Vedora in 2005 were inadequate, this alone is insufficient to conclude that the BEACON services to be provided by David Dilley and Barbara Cross will be inappropriate, or that these services will result in a denial of FAPE to Student. Only such a finding would allow me to override Duxbury’s selection for the home-based ABA service providers, as Parents would have me do. Parents’ history with some of BEACON’s providers raises concerns, but they failed to make a showing that the new service provider and her supervisor will be inadequate. In reaching this conclusion, I also take into account the fact that Student is now older, has made gains, and in effect is not the same person he was when BEACON was in the home during the winter of 2005.
Parent raised concerns regarding Student’s difficulty with transitions. However, Student has undergone approximately three to four previous transitions regarding home ABA programming since 2004. There is no evidence to suggest that his response to the transitions was so negative or disruptive that he was unable to make the transition successfully albeit over time.
Mr. Vedora has had experience transitioning students between providers. (Testimony of Mr. Vedora) Also, both Mr. Vedora and Mr. Dilley have offered trainings to other providers on transitioning students on the autism spectrum. (Testimony of Mr. Vedora) Specifically, the transition regarding Student will involve a close working relationship between the current provider, the proposed provider, and the Student’s Team. Continuity of services and treatment to Student will be ensured by reviewing the current data, the progress reports, current program, and through overlapping of providers as necessary to ensure a smooth transition. (Testimony of Mr. Vedora) Mr. Vedora testified that based on the information available to BEACON, it would be able to transition Student to the BEACON home-based ABA program. Additionally, Ms. Blake, the current provider under REACH, has transitioned Student from BEACON to her program as well as worked with PACES regarding Student’s transitioning into and out of that program in 2006. Her experience and knowledge of Student and the program will be a valuable tool in transitioning Student to BEACON. Her participation in the transition will help make this as smooth as possible for Student. Furthermore, the record shows that Student has an easy-going temperament, and at least one report (that of Dr. Iris Silverstein of March 10, 2006) states that transitions are not difficult for him. (PE-1) Neither Ms. Blake nor Mr. Vedora testified that transitions were difficult for Student. Clearly, given Student’s disabilities, any interruption of a routine and style with which he is familiar can be expected to present a reaction. However, nothing in the record indicates that Student would be unable to adapt to new styles or routines and develop effective strategies to address his areas of need.
As in the case at bar, In Re: Ipswich Public Schools , BSEA # 07-0962 (2006), the dispute did not involve the services in Student’s IEP but rather the parent’s lack of confidence in the particular ABA service provider and supervisor selected by the district. Parent testified that she did not trust any provider other than REACH to work with Student. While in this decision I can only clarify for the school district what its responsibilities are, and order it to provide such services, I would encourage Parent to work together with Duxbury in allowing her son to access the services ordered herein.
Lastly, Parents raised concern that the special education director for Duxbury and the ABA service coordinator had never observed Student in the home or at his PAC program. (Testimony of Parent, Ms. Horton) This statement is indeed concerning. When a school district exercises its discretion to engage an independent contractor to provide a specific special education or related service, it cannot divorce itself of the responsibility to monitor and ensure that eligible students are receiving a FAPE. Ultimately, the school district will be held responsible for the services it offers a student whether through one of its staff or through a contracted service provider. Accordingly, Duxbury bears the responsibility to oversee these services and ensure that they are being provided consistent with the recognized and accepted standards in the particular field. Specifically as to the provision of ABA services, this should include but is not limited to proper, contemporaneous data collection; sufficient time in actual tabletop activities; proper use of PECS program; effective coordination and consultation among the providers, school personnel, and Parents; and monthly reports. The decision regarding the length and specific methodology to be used during the transition period from REACH to BEACON is left to the Team, including representatives from the aforementioned service providers.
For the reasons stated above, Parents’ challenge of the home-based ABA service provider selected by Duxbury failed, and therefore, I need not reach the second issue regarding the appropriateness of REACH as a service provider. Should Parents decide to continue to employ REACH to offer Student home-based ABA services, then, its representative shall be invited to continue to work cooperatively with the rest of Student’s Team.
Duxbury must ensure that going forward it monitors diligently the home-based ABA services to Student and ensures that services are appropriate, as ultimately Duxbury will be held responsible for all accepted services delineated in Student’s IEP.
ORDER:
1. Duxbury is entitled to contract with BEACON services to offer the home ABA services consistent with this decision.
2. Duxbury is ordered to convene Student’s Team to work on the transition from REACH to BEACON service providers.
So Ordered by the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: 4/23/2007
1
The compensatory portion of the claim was resolved between the Parties prior to the Hearing.
2
SE-7 was admitted in evidence at the Hearing for the limited purpose of establishing that Duxbury terminated services with Christine Blake and REACH by letter dated July 13, 2005.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
6
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
7
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
8
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
9
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
10
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
11
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
12
E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)
13
See Matter of Freeport School District , 145 , 34 IDELR 104 (ILL. SEA March 9, 2000).
14
See also Hearing Officer Berman’s language in In Re: Ipswich Public Schools , BSEA # 07-0962 (2006), “ The IDEA provides that school districts, not parents, have the right and responsibility to determine who provides special education and related services to eligible students… as long as the provider is qualified, a hearing officer may not interfere with a school district’s decisions regarding assignment of service providers, and may not impose credentialing requirements in excess of those required by the relevant regulatory body.”
15
The grid does not specify the rate at which this service is being offered but it should not be less than once per month and preferably more often.
16
I found Mr. Vedora’s testimony to be credible with respect to the description of the BEACON program, the program statistics, the proposed service providers, and the reputation of BEACON as a service provider in Massachusetts. Regarding his supervision of Ms. Keyes, his testimony was not helpful as he could not remember with precision actual incidents and drew on conjecture regarding best practice in the delivery of home-based ABA services. I am persuaded however, that he is qualified to fulfill his functions at BEACON, holds appropriate qualifications, has vast experience, and understands the theoretical principles of ABA. I do not find his description and recollection of his supervision of Ms. Keyes to be reliable, but since he will not be the direct service provider or immediate supervisor of the service provider, but rather will serve as Mr. Dilley’s supervisor, the lack of reliability in his previous testimony is insufficient to completely discredit his testimony. I also note that he seemed to be shy, soft-spoken and appeared to be very nervous (as his voice kept fading during the testimony, at times being reduced to a mumble) from which I do not make any negative inference as to credibility.