COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Fall River Public Schools
BSEA # 05-5383
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.
A hearing was held on November 14, 15, 18 and 28, 2005 in Malden, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Nina Pinnock Psychologist, Center for Children and Families, St. Anne’s Hospital
Jeannine Audet Developmental/Behavioral Pediatrician and Medical Director,
Center for Children and Families, Saint Anne’s Hospital
Jane Carlson1 Clinical Director, May Institute
Melissa Wordell Early Childhood Teacher, Fall River Public Schools
Heather O’Neil Early Childhood Home Service Provider, Fall River Public Schools
Jean Lider Early Childhood Specialist, Fall River Public Schools
Wayne Phillips School Psychologist, Fall River Public Schools
Nancy Garofalo Supervisor, Early Childhood Services, Fall River Public Schools
Robert Sisson Consultant, Fall River Public Schools
Shelly Greene Advocate for Parent and Student
Diane Parent Attorney for Fall River Public Schools
Nancy Grant Observer, Bureau of Special Education Appeals
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-58; documents submitted by the Fall River Public Schools (Fall River) and marked as exhibits S-1 through S-16; and approximately four days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on December 7, 2004, and the record closed on that date.
In order to apprise the parties in a timely manner of my findings and conclusions in this case, an Order was issued on December 15, 2005, in advance of the full text of this Decision. See Appendix A.
A. ISSUES
The issues to be decided in this case are the following:
· Is the IEP most recently proposed by the School District reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
· If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
· If not, would placement at the May Center satisfy this standard?
B. FACTS
Profile of Student and summary of his current educational services
1. Student is a four-year-old boy (date of birth 5/4/01) who lives with his mother (Parent) in Fall River, Massachusetts. Student has been diagnosed with autism and developmental delays. Student is characterized by significant deficits regarding his skills in the following areas: communication/language, social, independence and behavior. His behaviors include, at times, screaming, crying, self-injurious behavior (head-banging, head-slapping, biting his own hand) and throwing objects. His current performance level includes eye contact, imitation skills, verbal and non-verbal greeting skills, reciprocal play gestures with adults, inconsistent and limited vocabulary, occasional spontaneous language, and the ability to follow school routine and one-step directions. Testimony Parent, Wordell, Sisson, Pinnock, Audet, Garofalo; exhibits S-2, P-11 (current IEP).
2. Since July 2005, Student has been receiving full-day services (8 AM to 2 PM) five days each week in a substantially separate program within the Fall River Public Schools. Student attends this program with three other children who have a diagnosis of autism. The program is staff-intensive (one teacher and two assistants) and is language-based. Discrete trial training (2 hours per week), speech language services (30 minutes, twice each week, one of which includes discrete trial training) and occupational therapy services (30 minutes once per week) are provided within this program. In addition, Student is receiving five and a half hours per week (2 hours, 2 times per week and 1½ hours, once per week) of home-based services. Student is receiving additional speech language services and home based services, which are privately paid through health insurance and are not part of his IEP. Testimony of Pinnock, Garofalo, O’Neill, Parent; exhibits S-2, P-11.
Chronology of events and provision of educational services
3. Student received early intervention services of physical therapy, speech language services and home coordination services that resulted in educational progress. However, at age 1½ to 2 years, his progress stopped. Early intervention services then made a referral to a developmental pediatrician (Jeannine Audet, MD). However, Dr. Audet did not evaluate Student until April 2004. Testimony of Parent, Audet.
4. On March 8, 2004 (several months before Student turned three years old on May 4, 2004), Fall River evaluated Student for special education services. During the evaluation, Student cried and screamed, making it impossible for the evaluator to engage Student. Instead, the evaluation was done through a questionnaire completed by Parent. As a result of this evaluation, an IEP Team was convened and Student was determined to be eligible for special education services. Testimony of Parent, Garofalo; exhibit P-53.
5. On April 1, 2004, Student was evaluated by Dr. Audet. Dr. Audet could not reach a diagnosis and suggested that Student return for further evaluation in six months. Parent testified that during the next six months, her son regressed. Student was seen again by Dr. Audet for further evaluation in October 2004, at which time he was diagnosed as having autism and global developmental delays. Testimony of Parent, Audet.
6. In May 2004, Student began a half-day pre-school program of services provided by Fall River at the Greene School during four afternoons each week. This language-based program, which included nine children with a variety of disabilities, was intended to address Student’s language skills, cognitive development and social skills. Testimony of Parent, Wordell.
7. In September 2004, Student continued with a half-day, language-based program, with the addition of speech language services. In November 2004, the IEP Team met and added occupational therapy services. Parent agreed with these services. Testimony of Parent, Wordell.
8. In May 2005, the IEP Team met again. By this time, Parent had begun speaking with her own professionals regarding her son’s needs and progress, and had retained an advocate. At the time of the Team meeting, Parent indicated that her son was not making sufficient progress as a result of the services being provided, and requested that Fall River provide a full-day program with a home component and applied behavior analysis (ABA) services. At this time, Fall River did not agree to a full-day program or a home component, but did offer additional services, as reflected in the IEP. Testimony of Parent.
9. Parent filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) on May 24, 2005. The BSEA conducted a Pre-Hearing Conference on June 23, 2005. Subsequently, Fall River agreed to provide a full-day program, five days per week, with the addition of a home component of six hours per week starting in July 2005, as reflected in a revised IEP. Parent understood that the services during the summer would serve, at least for her purposes, as a “trial period” to see how her son would respond to Fall River’s increased services. Parent agreed to the revised IEP for the purpose of her son receiving these services until a BSEA Hearing would occur, if necessary, to resolve any dispute with Fall River. Testimony of Parent, Garofalo; exhibit P-24 (IEP).
10. The services that began in July 2005 included a full day program with four children, all of whom carry a diagnosis of autism. The IEP was revised again in September 2005 to make several adjustments — for example, to make it explicit within the IEP when discrete trial training was being provided – although the program and services did not substantively change from the IEP that was implemented in July 2005. Parent again accepted this IEP until the outcome of a BSEA Hearing, if needed, regarding any dispute with Fall River. Under the same conditions, Parent accepted an IEP amendment in October 2005 that did not substantively change the IEP. Testimony of Parent, Garofalo; exhibits S-2, S-3, S-10, S-14, P-11.
11. The program provided by Fall River at its Greene School uses a combination of natural language paradigm teaching and discrete trial training. The discrete trial training is done on an individual basis, following the research and protocols developed by Ivar Lovaas and others. Student receives discrete trial training within the classroom. Unless she is absent from the classroom, Ms. Wordell does the discrete trial training with Student within the classroom, typically for 1¾ to 2 hours each day. For this purpose, Ms. Wordell is supervised by Dr. Sisson. Testimony of Wordell, Sisson.
12. The natural language paradigm is based upon the work of Koegel in which students are encouraged to use language based upon the principles of ABA but in a natural setting. It is used to move beyond the development of language only with prompting (during discrete trials, for example). The goal is to have every interaction be a learning experience throughout the day. Testimony of Sisson, Wordell; exhibits S-9, P-58.
13. The Fall River program is intended to develop Student’s pre-school readiness skills – for example, taking turns, making choices, identifying objects. The overall focus of the classroom is on Student’s social behavioral skills, activities of daily living skills and developing language skills. Testimony of Wordell, Sisson.
14. The program has been designed with the assistance of Dr. Sisson to maximize instruction throughout the school day including during more informal periods such as circle time, breakfast, lunch and recess. For example, Ms. Wordell and Ms. Garofalo testified that during breakfast, Student has to choose a cereal and is asked what utensil he is to use. They explained that during breakfast time (and the transition to and from breakfast), he is taught skills relating to attention, sitting, focusing, eating, listening, following directions and interacting with others. Ms. Garofalo noted that circle time teaches Student to participate appropriately in a group. One of the goals throughout the day, including the more informal times, is the development of language, although Dr. Sisson testified that there is no direct instruction during the less formal periods during the school day. Testimony of Sisson, Wordell, Garofalo.
15. Presently, Student is well-engaged and an active participant in the classroom. He appears to enjoy the classroom activities. He is an affectionate child who has formed positive relationships with Ms. Wordell and one of the aides, in particular. Testimony of Wordell, Garofalo, Lider, Sisson.
Evidence relevant to Student’s progress and appropriateness of the IEP
16. Testimony of Parent . By letter of January 26, 2005 (exhibit P-31), Dr. Audet stated that Parent was reporting that her son was making small gains in skills – for example, he will point to something that he wants, imitates words spoken by others, uses a small vocabulary of single words spontaneously but inconsistently to get his needs met, exhibits more exploratory play, shows more understanding of directions and is more able to cooperate. Parent testified that, at the time that the letter was written, this description of Student’s progress was accurate.
17. Parent testified that during the 2004-2005 school year and the 2005 summer, her son started to use more words, and in the fall her son was able to say the letters of the alphabet. Parent testified that her son was making progress but that the progress was “pretty slow”.
18. With respect to language skills, Parent explained that the words that her son says are used only through imitation or repeating, rather than the appropriate use of words in a particular context. She explained that he is not able to use language to ask a question, give an answer or make a choice; her son does not use functional language at home.
19. Parent testified that her son has regressed socially over the past month or so. He makes eye contact and is excited by children but has no appropriate play skills. He used to play near his cousins when they would be in the same room, and now he does not want to do this.
20. Parent testified that her son’s behavior at home and in the community started getting worse towards the end of the summer, and she has noticed regressive behaviors over the past month or so. For example, he previously was screaming “a little” but now screams about half of the time spent with her. He has also been screaming more in public. He has increased his self-injurious behavior (including banging his head on the wall and biting his hand).
21. Parent testified that, during the month of July, her son screamed a lot during home services. She added that sometimes the home therapist (Ms. O’Neil) arrived late and left early, and Ms. O’Neil spends part of the time (as much as half of the allotted time) talking with Parent about matters unrelated to the therapy, with the result that Ms. O’Neil did not work with her son for the full time allotted.
22. Parent testified that she has not observed any significant progress as a result of the home services.
23. Testimony of Melissa Wordell . Melissa Wordell testified that currently and for the past 7 years, she has been employed by Fall River as an early childhood special needs teacher. In this capacity, she has always taught autistic children and more recently has taught only autistic children. Previously, for approximately 2 years, she was employed by the Bradley School to teach autistic children ages 4 to 7 years old and in that position was trained to utilize ABA. She has a master’s degree in guidance and counseling, has implemented ABA in the classroom for 2 years and several months, and has received various trainings and seminars relevant to teaching autistic children.
24. Ms. Wordell testified that she began teaching Student in May 2004 as his classroom teacher; then continued to teach him during the last school year (2004 to 2005); did not teach him during the summer of 2005; and continued as his classroom teacher during the current school year (2005 to 2006).
25. Ms. Wordell testified (and her written progress reports reflect) that Student has made progress with respect to the three IEP goals related to what is occurring in the classroom with her. With respect to the goal of increasing language skills, Student is able to make eye contact for 30 seconds, he uses language to make a request or to protest, is able to follow a one-step direction relative to his environment 90% of the time with minimal refusals, and follows the classroom routine with minimal redirection from adults. Student has more receptive language than expressive language. She explained that he is able to express between 75 and 90 words a day; he is able to identify a number of objects; and at times, he will name objects, shapes, colors, letters and numbers expressively and independently. During this school year, Student has made progress regarding imitation of gross motor skills, imitation of fine motor skills and imitation of oral motor skills. Exhibit S-4 (progress reports).
26. Ms. Wordell testified (and her written progress reports reflect) that with respect to the goal of increasing social behavior skills, Student has made progress. For example, Student is able to listen to and follow adult suggestions with regard to classroom routine 90% of the time. During play and social skills, Student is beginning to generalize the tasks being taught to him. He is beginning to display independent reciprocal play. With respect to the goal of activities of daily living skills, Student has made progress. For example, he understands and follows the appropriate routine when he first comes into the classroom, he can feed himself, uses the correct utensil, uses verbal language to request what he wants to eat and is able to execute the various steps in toileting except that he does not eliminate. Exhibit S-4.
27. Ms. Wordell further testified that since September, Student has made progress that is reflected in increased vocabulary, using language more spontaneously, more social skills, more ADL skills, initiating attention with peers and staff, following the class routine, minimal refusals, eye contact is at the 100% level, and more spontaneous and independent use of language. She also noted that by comparison, during the previous academic year, Student did a significant amount of tantrumming, was difficult to engage and spoke little language although he had good eye contact and knew what was going on around him. Ms. Wordell opined that last year Student knew a number of words but refused to use them. She explained that even this year, sometimes he will refuse to use words that he knows.
28. Testimony of Heather O’Neil . Heather O’Neil testified that she has been a special education teacher for Fall River for the past 7 years and previously worked for the Groden Center in Providence, RI, where she was an ABA home therapist and classroom teacher from 1995 to January 1997. In 2000, she received her master’s degree in special education and has received additional training regarding ABA services. She noted that she has been providing home ABA therapy for Fall River since July 2005 when she began working with Student.
29. Ms. O’Neil testified that she goes to Student’s home Monday for two hours, Wednesday for two hours and Thursdays for one and one-half hours. She stated that the first few weeks were difficult, with Student frustrated and not wanting to work with her. She spent the time seeking to engage him with things that he enjoyed, including interactive play. After 2½ to 3 weeks, she was able to establish a relationship with Student, and began working on eye contact and imitation skills. When she stopped working with him in mid-November 2005, he was imitating words. She explained that she kept contemporaneous data in one format, and then at the end of the session, she would re-record the data into a more appropriate format.
30. Ms. O’Neil testified that Student has made progress during the time that she worked with him. She noted that when she began working with Student, he was “pretty much non-verbal”, and increased his language to 35 to 40 words used with her in the home; he began imitating words; he was able to identify colors, shapes and numbers; he used more words and phrases spontaneously; his frustration level decreased significantly; he went from not imitating to imitation of gross motor skills and mastered imitating actions with objects (for example, blowing a whistle); he went from no eye contact to mastering eye contact; and he was starting to follow simple directions. She noted that she has no knowledge of Student’s abilities prior to her working with him although she opined that when he started using language two weeks into their sessions, Student probably was using words that he already knew. Exhibit P-13.
31. Therapy notes of Karen Skurka . The written notes of Karen Skurka, the Fall River speech language therapist, include descriptions of Student’s making progress regarding receptive and expressive speech during the time period 9/14/05 to 10/15/05 – for example, on one day it was noted that Student “had much spontaneous speech” and on another day it was noted that he “stayed focus [sic] and constantly verbalized appropriate words”. Exhibit S-16. The context of these descriptions and other descriptions is not apparent from the notes. Ms. Skurka did not testify.
32. Testimony of Jean Lider . Jean Lider testified that she has been employed by Fall River for 8 years. The two most recent years have been as an early childhood specialist and the previous 6 years as a special needs teacher in an integrated pre-school class. Her present duties include providing direct instruction to children, serving as a resource to 13 other special needs teachers and occasionally acting as Team chairperson. Previously, she was the director of a childhood pre-school program for 9 years. She received her master’s degree in special education in 1997.
33. Ms. Lider testified that she is familiar with Student, having observed and helped out in his classroom occasionally, chairing a Team meeting for Student in December 2004 and facilitating meetings in May 2005 to discuss Student’s IEP and placement.
34. She testified that she believes the current IEP goals are appropriate for Student based on her knowledge of curriculums, what is attainable in a year for a child with Student’s profile, and the steps that need to be taken to achieve the particular goals. She opined that Student is making progress in achieving the goals in his IEP, that he appears happy and motivated within his current classroom and that he has increased his spontaneous use of language four-fold.
35. Testimony of Nancy Garofalo . Ms. Garofalo testified that she is employed by Fall River as the early childhood supervisor since 1998. She has held a variety of positions within Fall River for the past 32 years. She has a master’s degree in school administration, which she received in 1995.
36. Ms. Garofalo testified that, in gauging Student’s progress, she considers how far he has developed in relation to his intelligence. She opined that within this context, Student has done very well. She noted that when Student began receiving services from Fall River, he was very distracted with little ability to focus, he had very little language, and he did not imitate very much. She has observed that his imitating skills are growing, that he has been able to pick up language and that socially he is doing well (she has observed him playing next to but not with other children). She believes that Student has been enjoying the program and that overall, he has made a great deal of progress.
37. Ms. Garofalo testified that in her opinion, the IEP and its goals are appropriate. She explained, in particular, that goal # 1 of the current IEP reflects Student’s current skill level. She noted that if and when Student achieves this goal, teaching would continue to other areas, and the IEP goal would be re-written accordingly.
38. Testimony and report of Wayne Phillips . Mr. Phillips testified that since approximately one year ago, he has been employed by Fall River as a school psychologist. Previously, for twelve years, he worked in several other settings, developing IEPs and behavior plans, among other responsibilities. He received a certificate of advanced studies in school psychology in 1991.
39. Mr. Phillips performed a psychological assessment of Student on October 10, 2005. Mr. Phillips testified (and his written report, exhibit S-6, reflects) that the purpose of the evaluation was to obtain a more updated and accurate description of Student’s current functioning levels. Mr. Phillips reviewed other evaluations, spoke with Student’s classroom teacher from whom he received data regarding Student’s progress from July 2005 to the date of testing (Mr. Phillips was not clear as to the actual data sheets that he reviewed), spoke with Parent, and administered the Merrill-Palmer Revised test to assess Student’s cognitive abilities and receptive/expressive language.
40. Mr. Phillips found Student’s overall cognitive ability to be severely delayed, or below 99% of peers his age. Mr. Phillips was not able to determine language skills because Student did not complete any items that would have measured receptive language and because he would not respond or demonstrate his ability to use any of what Mr. Phillips believed to be the 75 words that Student has at some point in class over the previous few months.
41. From a rating scale administered to Parent, Mr. Phillips determined that Student is moderately delayed regarding adaptive living skills. From a rating skill administered to Parent, he determined that Student’s social development was severely delayed.
42. Mr. Phillips noted that when first tested in March 2004 Student could not be engaged in formal assessment, but that Mr. Phillips was able to do so for purposes of this assessment on October 10, 2005, thereby indicating, to Mr. Phillips, that progress had been made during this time period. He further concluded as follows regarding Student’s progress:
Data collected in the classroom indicates he has made solid gains in terms of decreasing his self-injurious behavior, increasing the words he uses on demand while improving his ability to make choices. He has also made substantial progress in terms of being able to imitate a few simple gross motor movements and would have appeared to have mastered making eye contact upon request. There is a good deal of evidence the [Student] is making progress with a number of specific skills with the help of the teaching approaches currently being utilized in his class. Another important factor to consider is he seems to be increasingly comfortable and cooperative in his current placement and is gradually developing the emotional maturity to be successful in school.
Exhibit S-6.
43. Testimony and reports of Robert Sisson . Robert Sisson testified that currently and since September 2002, he has been a consultant to Fall River, assisting with the behavioral problems of children of all ages, training staff regarding issues relevant to children with autism and addressing the educational needs of specific students with autism. He provides similar consultation services to other school districts. From 1996 to September 2002, he worked for the May Institute, first as the director of special projects, then as vice president of the Boston division and finally as the vice president for contractual services (that is to develop contracts with other organizations to provide services through a partnership with the May Institute). Dr. Sisson received his master’s degree in applied behavior analysis in 1977 and received his PhD in educational psychology in 1980. He has worked with children with autism for 15 years, and 10 of those years have been spent working with children ages 3 to 5 years. He is not a board-certified behavior analyst but has qualified to sit for the examination.
44. Dr. Sisson began working to develop Student’s program at Fall River, starting with a meeting in April or May 2005 and then helping Fall River to develop Student’s program that began in the summer of 2005 for the purpose of using ABA to increase Student’s language and decrease his inappropriate behavior. During the summer of 2005, he also assisted Fall River to initiate discrete trial training with Student. Dr. Sisson began spending approximately one hour per week within the school and home components for this purpose, and then expanded this time somewhat so that he was spending up to one hour per week in the classroom supervising Ms. Wordell and observing Student, and approximately one hour per week in the home, speaking with Mother, working with Ms. O’Neil and observing Student. Dr. Sisson also took the data that was being collected in the classroom and home, graphed the data and as part of a team of service providers, made decisions regarding Student’s educational services.
45. Dr. Sisson testified that typically a child with Student’s profile needs 15 to 30 hours of ABA each week, although he explained that what is more important for purposes of development of language is the number of “communication turns” (for example, staff talks to Student and Student responds), which should be at least 400 per day. He explained the critical importance of providing appropriate and sufficiently intensive services to autistic children between the ages of 3 to 7 years old – if this does not occur, the child will not be able to develop language or be able to learn as a typical child.
46. Dr. Sisson explained the necessity of gaining eye contact with Student, maintaining his attention and bringing him under instructional control as a precursor to all subsequent learning. He also explained the need for Student first to learn various imitation skills (for example, with gross motor skills, fine motor skills, vocal motor skills) before proceeding to imitating and learning language. He emphasized that developing language skills is the most important part of Student’s education, and that the more that natural language can be used with Student, the more likely that his language will develop. He also noted that it is very important for Student to learn to generalize what is learned in one environment (for example, school) to another environment (for example, home and the community).
47. Dr. Sisson testified that there is a correlation between some of Student’s self-injurious behavior and his communication abilities (for example, a 25% correlation with hand-biting and communication). The better Student is able to communicate, the less frustration he feels and certain kinds of inappropriate behavior tends to decrease.
48. Dr. Sisson reviewed the graphs that he prepared, utilizing data collected within the classroom and during the home component from July 18, 2005 to October 24, 2005. He noted Student’s progress regarding words spoken in the classroom, which averaged around 20 words per day during the summer and increased once Student began the school year in September, jumping to 87 words on September 13, 2005 and fluctuating from the 40’s to the 80’s through the period from September to October 24, 2005. He further explained that the data sheets, his observations regarding language and staff reports also reflected an increase in use of phrases and an occasional use of spontaneous language. Dr. Sisson further noted that Student has asked one question, and that on another occasion, Student imitated language with another child. Dr. Sisson stated that Student may know more words than he expresses at times, and that Student’s use of language increases when he is both relaxed and engaged. Exhibits S-8, S-9.
49. Dr. Sisson testified that progress is reflected in the graphs regarding imitation of gross motor skills, eye contact, percentage of choices expressed, self-injury, imitation of actions with an object (for example, blowing a whistle), following one-step directions, imitation of oral motor actions, repeating words, expressing a choice (including making more complicated choices). In general, Dr. Sisson noted that Student’s self-injurious behavior, which was been severe at times, has decreased markedly in the classroom. He also noted, however, that where his graphs reflect only four days of data (with respect to one step directions, oral motor actions, imitation with objects, repeating words) there is not sufficient data to provide any meaningful information. Exhibits S-8, S-9.
50. Dr. Sisson testified that he has no specific knowledge of Student’s skills prior to the summer of 2005. However, he stated his general understanding that coming into the program during the summer of 2005, Student had relatively good receptive and expressive language but was often unwilling to use language. He explained that the current program did not teach him all the words that he now knows.
51. Dr. Sisson testified that the home component began with a great deal of tantrumming, Student seemed tired, and the home space is not free of distractions. Eventually, he found that Ms. O’Neil was able to establish a relationship with Student and work with him effectively – for example to imitate fine and gross motor skills by the end of the summer.
52. Dr. Sisson concluded (and his report of October 31, 2005 reflects) that, in his opinion, Student appears to be making “good”, “steady” and “effective” progress, with Student doing best in natural settings at school and with slower progress occurring within the home component. Dr. Sisson explained that, to him, “effective progress” means, based on Student’s abilities and IEP goals, “moving in the direction of achieving those goals”. He believes that Student has made progress commensurate with his abilities, even exceeding what Dr. Sisson believed those abilities to be. Exhibit S-9.
53. Testimony and reports of Jeannine Audet . Jeannine Audet testified (and her resume reflects) that currently and for the past eight years, she has been a developmental/behavioral pediatrician at the Center for Families and Children at Saint Anne’s Hospital in Fall River, MA. She received her medical degree in 1992, followed by 3 years of general pediatric residency and 2 years of a fellowship in developmental/behavioral pediatrics. She has also been a general pediatrician for two years. Since 1997, she has been an assistant clinical professor of pediatrics at the Floating Hospital for Children, New England Medical Center, Tufts University School of Medicine.
54. Dr. Audet testified that she currently follows approximately 250 children with a diagnosis on the autism spectrum. She noted that approximately 25 to 30 of these children have a similar profile and are in a similar age range as Student. All are characterized as having significant limitations regarding language, behavior, attention and generalization.
55. Dr. Audet noted that a number of the children with whom she has worked who are similar to Student have demonstrated improvement in school, with carry over improvement in the home environment. She explained that, in addition, what makes Student stand out from these other children is the extent of his behavior difficulties that include avoidance, lack of compliance and aggression.
56. Dr. Audet testified that she first came to know Student in April 2004 when he was referred to her for evaluation. She has continued to see him in her office approximately every six months (a total of five office visits since April 2004, each approximately 40 to 60 minutes) and most recently she saw Student in October 2005. On the first visit, she found that Student had some features of autism, together with significant developmental delays. On the second visit in October 2004, she confirmed a diagnosis of autism.
57. By the time of the October 2004 visit with Dr. Audet, Student had been receiving half-day services from Fall River since May 2004. Dr. Audet noted that during the October 2004 visit, Student demonstrated little progress in his language skills, play skills, social skills, ability to engage others and behavior. In particular, Dr. Audet was concerned that Student had little functional language, did not engage very much in pointing to things in his environment, engaged in a significant amount of screaming, had self-injurious behavior and had a limited attention span. She noted that Student’s limited functional language and behavior deficits were likely related – that is, when Student was not able to express his needs verbally, he tended to act out behaviorally. She concluded at that time that Student required more intensive services to address his needs, and, by letter of January 26, 2005, she expressed these concerns and recommendations. Exhibits P-24, P-39.
58. Dr. Audet testified that she next saw Student on April 13, 2005, as reflected within her letter of June 8, 2005. Exhibit P-30. Again, Dr. Audet found Student’s behavior to be sufficiently difficult that she was not able to engage him for the purpose of making a formal assessment. She found that as with previous visits, Student exhibited significant avoidance behavior, similar to what was reported to Dr. Audet by Parent in the home environment and by the speech language therapist during therapy.
59. Dr. Audet testified that the behaviors that she observed during the April 2005 visit were worse than what she had observed during Student’s October 2004 visit, and that the behaviors during the October 2004 visit were worse than during the April 2004 visit. She explained that during the April 2004 visit, Student had played with toys in her office and she had been able to engage him somewhat. During the October 2004 visit, Student’s behavior had deteriorated with more screaming, more throwing objects and more difficulty engaging him. During the April 2005 visit, these same behaviors had further deteriorated. As a result, Dr. Audet increased the amount of services that she recommended be provided to Student. Exhibit P-30.
60. Most recently, Dr. Audet saw Student in her office in October 2005, as reflected within her October 31, 2005 letter. Exhibit P-5. She testified that Student’s behaviors, as compared to the April 2005 visit, had further deteriorated – more aggressive behavior and greater difficulty settling down, and she had more difficulty engaging him even with respect to things such as toys that Student enjoys. Dr. Audet noted that her observations of Student’s behavior at this time were consistent with what was reported to her by Parent.
61. Dr. Audet testified that it is unusual for a child to continue to exhibit these behavior difficulties after having received services for the period of time that Student had been receiving services from Fall River. She explained that many children who are similar to Student have difficulty in new settings (for example, her office). In general, children with autism may be more rigid, more anxious and more difficult in new settings, as compared to other children. However, she explained that the vast majority of these children make more progress than what Student has demonstrated if provided appropriate services over the period of time during which Student has been receiving services from Fall River.
62. Dr. Audet testified regarding the importance of successfully addressing inappropriate behaviors at the earliest possible time. She stated that as a child (with Student’s profile) gets older and continues to exhibit inappropriate behavior, then the child is, in effect, learning through practice to exhibit those inappropriate behaviors. The longer inappropriate behaviors are used by a child, the more difficult it is for the child to unlearn these inappropriate behaviors and to utilize appropriate behaviors in their stead.
63. Dr. Audet testified as to the critical importance of generalization as it pertains to progress of a child with Student’s deficits – that is, for meaningful progress to occur, any improvements and abilities demonstrated within the classroom must carry over into the home and community.
64. For these reasons, Dr. Audet expressed significant concern with Student’s lack of progress, and actual regression, with respect to his demonstrated behavior in her office, and as reported by the speech language pathologist and by Parent. She opined that Student has not been effectively taught to respond to different demands within his environment.
65. Dr. Audet expressed additional concerns regarding Student’s slow progress with respect to language. She noted that from the reports from the speech language therapist, from what Parent reported and from the written reports that she reviewed, Student does not produce much language – he labels a few objects, uses a few nouns and verbs, but overall has very little verbal production and is not able to use language to express curiosity and to learn through language. She concluded that over the 18-month period up to and including the present, Student has made very slow progress in this area. She testified that with this rate of progress, she is concerned that Student may not get to the next level of language – that is to use language to ask questions and interact with others. She also opined that Student’s behavior difficulties are likely interfering with his ability to learn language.
66. Dr. Audet testified that she visited Student’s classroom for an observation on November 4, 2005 from 8:10 AM to 9:20 AM. She also spoke with the classroom teacher. Exhibit P-1. She observed a variety of activities, both structured and unstructured. On the positive side, she found that Student was able to remain with the group, took turns, was able to make a choice and in general responded appropriately. Her written report further elaborated that it was encouraging that Student was able to follow classroom routines without aggressive or disruptive behaviors.
67. Dr. Audet testified that she attributed Student’s positive classroom behavior, including his ability to follow successfully the classroom routine, to his having been in a school setting for 1½ years with significant teacher attention (very high teacher-to-child ratio) and a predictable and now familiar daily routine. She contrasted Student’s behavior in the classroom with his behavior in less familiar settings, including what she has observed in her office.
68. On the negative side, Dr. Audet testified that she observed that Student did not imitate any vocalizations when prompted, he labeled only a few objects and did not engage anyone else (either a child or an adult). Her written report similarly noted that Student demonstrated very little spontaneous use of language, he did not initiate interactions with his peers, and he demonstrated very little spontaneous/creative play skills.
69. Dr. Audet further testified as to her particular concern (and this is reflected within her written report) regarding the limited attempts by staff to encourage social interaction or to otherwise engage Student. She stated that during breakfast, no one engaged him socially; and at other times (for example, during play time when he had a toy and during circle time), staff did not attempt to facilitate communication. She observed that during 1:1 time with staff, the instruction was not sufficiently intensive – staff were not persistent and provided no repetitive teaching or reinforcing in seeking to obtain responses from Student.
70. Dr. Audet testified that, in her opinion, the current services being provided by Fall River do not include a sufficiently high level of structure or intensity, with the result that Student’s progress in developing skills has been limited, particularly in the areas of developing language, social skills, and self-help skills. Dr. Audet added that it is most important that Student’s behavioral difficulties be addressed in all settings so that Student can generalize appropriate behaviors and ability to engage. She explained that the progress that has been made pertains to his ability to attend, sit, engage and participate appropriately with respect to the classroom routines. She stated that his overall progress has been much slower and much more limited than it could be with appropriate services. She noted the particular concern that this slow progress is occurring during the time period when teaching would be expected to be most effective, given his age and disability.
71. Dr. Audet testified that, in her opinion, Student has the potential to make significant progress regarding language. She based this opinion on the large gap that exists between Student’s current language abilities (approximately at the 1½ to 2 year old level) with his visual, non-verbal skills (approximately at the 3 or 3½ year old level). This indicates to Dr. Audet that Student’s cognitive level is likely to be significantly higher than his present language development.
72. Testimony and reports of Nina Pinnock . Nina Pinnock testified (and her resume, exhibit P-3, reflects) that since September 2004, she has been the Director of Community Consultation at the Center for Children and Families at St. Anne’s Hospital in Fall River, MA, and in that role she is employed by the May Institute. Dr. Pinnock has responsibility for overseeing therapy and services for children at the Center for Children and Families. She explained that she specializes in the areas of autism and behavior interventions. From 1995 to 2001, she was a psychologist for Family Service Association of Grater Fall River and from 1995 to 1999 was a consultant school psychologist to a public school district in Rhode Island and then the Westport Community Schools in Massachusetts. She received her PhD in 2003 and master’s degree in 1994, and is a Board Certified Behavior Analyst.
73. Dr. Pinnock testified that she has experience working with approximately 200 children with a profile and age similar to that of Student – in approximately 75 of these cases, she has provided follow-up evaluations and behavior supports for schools and parents, and in approximately 125 of these cases she was part of an evaluation team.
74. Dr. Pinnock testified that she has been working with Student and his mother (Parent) for an hour once each week since January 2005 when Student was referred from Dr. Audet because Parent was having difficulty with Student’s behavior. Dr. Pinnock has worked directly with Student, but mostly she has worked with Parent to teach her how to manage Student’s behavior. She explained that her work is data-driven – that is, Parent tracks her son’s behavior in certain areas through the collection of data, and pairs the tracked behaviors with responses from Parent (play, praise, use of words). The purpose is to change Student’s behavior so that he expresses himself in words rather than his inappropriate behaviors (screaming, biting, head-banging, for example). Through graphs, Dr. Pinnock demonstrated how these behavior techniques have improved Student’s inappropriate behavior and allowed Parent to learn how to work more effectively with her son’s behavior. Exhibit P-4.
75. Dr. Pinnock explained that her work with Student and Parent is not paid for by Fall River nor is it reflected within the Fall River IEP for Student, but instead is privately arranged by Parent and paid through her health insurance.
76. Dr. Pinnock testified that she has reviewed all evaluations and assessments in Fall River’s and Parent’s exhibit books for this hearing, including Student’s most recent IEP.
77. Dr. Pinnock testified, and her written report reflects, that she observed Student in his classroom at Fall River for at least an hour on April 11, 2005. She noticed that Student seemed accustomed to his surroundings, and he followed directions when someone was with him. At one point, Student chose a toy but was playing with it inappropriately by using a stereotypical behavior (moving his hand along the side of the toy) that he exhibits in other contexts. Dr. Pinnock noticed that staff did not engage Student appropriately at this time. The staff did not address the inappropriate, stereotypical behavior; appropriate staff response would have been to demonstrate to Student how to play appropriately with the toy. She noted the high risk that Student’s inappropriate behaviors will not able to be corrected the longer that they are allowed to continue without being addressed appropriately. Dr. Pinnock testified, and her written report reflects, her concern that during this observation, very few language demands were made upon him. She expressed concern that Student was not receiving the interventions that he needed in order to make appropriate progress. Exhibit P-31.
78. Dr. Pinnock testified that she next visited the classroom to observe on July 20, 2005. She found, and her written report reflects, that as compared to her April visit, Student’s level of engagement in classroom activities had improved. However, she noted her concern that over a period of a one-hour observation, Student said very few words and very few verbal demands were placed upon him although when asked to say a word, he frequently responded. The activities in which he was engaged did not elicit conversation. Dr. Pinnock was particularly concerned to observe the inadequacy of work on language development since her observation followed an IEP meeting in which language was addressed as a concern. As a result, Dr. Pinnock recommended to Fall River that it provide Student with a program that provides intensive language development. Exhibit P-22.
79. Dr. Pinnock testified that she next visited Student’s classroom on November 2, 2005 for two hours, from 8 to 10 AM. She noted (and her written report reflects) that, on the positive side, Student occasionally showed interest in interacting with other children, that he seemed familiar with the class routine, that he was under instructional control during structured activities (particularly when receiving individual direct teaching) and that he received more individual intensive behavioral intervention than during her April 2005 visit.
80. Dr. Pinnock also observed that the intensity and language emphasis fell short of that required to enable him to close the gap between Student and his peers. More specifically, she noted, for example, that during the discrete trial instruction, play and reciprocal skills were practiced, and expressive language was encouraged. However, she observed that expressive language was not the focus of these activities. She observed no instruction targeted on language during the two hours of her visit. Other activities during the day – for example, walking to the cafeteria, eating breakfast, circle time and play – reduced the opportunities for direct instruction.
81. Specific examples of missed opportunities to teach language to Student included Dr. Pinnock’s observation of toileting where he was given a book to look at and asked questions about the colors of the book, but staff neither required Student to answer nor modeled appropriate answers. She also noted the half hour for breakfast during which there was no opportunity provided for Student to develop language. She further reported that during discrete trials, Student was encouraged, but not required to respond verbally – that is, a verbal response was not required by the teacher prior to completing a task. Dr. Pinnock observed these missed opportunities to address Student’s language deficits. She opined that in order for Student to make sufficient progress regarding language, every available opportunity to develop Student’s language must be utilized, which is not presently occurring. Exhibit P-2.
82. Dr. Pinnock testified that upon reviewing Student’s current classroom schedule (and assuming that what she observed during breakfast would also be what would occur during lunch and recess with respect to opportunity for instruction/learning), she concluded that Student would have only 3.2 hours of time during which he would, potentially, be engaged in the development of language and other skills during a typical day. She stated that this reflects a deficit of at least 9 hours of services in comparison to what is needed for a child with Student’s profile. She noted that she also has concerns as to how intensively this 3.2 hours is used to develop language. She explained that normally for a child with Student’s profile, the accepted minimum amount of services each week is 25 hours, and that she recommends for Student a minimum of 30 hours per week in light of the particular level of his deficits.
83. Dr. Pinnock testified that she visited Parent’s home on two occasions in order to observe the home services being provided by Fall River and reviewed the data from the home therapy (exhibit S-15). The first observation was on August 3, 2005, which was about 2½ weeks after the beginning of these services. Dr. Pinnock testified (and her report, exhibit P-2, reflects) that at this time, Ms. O’Neil (the home therapist) had not yet been able to work consistently with Student and had not yet developed a relationship with Student. Dr. Pinnock reported that it was a major task to get Student to sit and attend to the home therapy. Dr. Pinnock found that Ms. O’Neil had no systematic method for working effectively with Student, and that reinforcement techniques using food were not done appropriately.
84. Dr. Pinnock concluded in her written report that her visit “raised concerns about the level of knowledge of applied behavior analysis and methods of direct instruction” of Ms. O’Neil, and also questioned the appropriateness of Ms. O’Neil’s data collection, concluding that “[i]t will be difficult to measure effectiveness without adequate data collection”. She testified that Ms. O’Neil had explained to her during the first visit (and Dr. Pinnock later observed) that Ms. O’Neil did not record data contemporaneously, but rather at a later time from memory. Dr. Pinnock stated that this practice may result in errors regarding the accuracy of data and calls into question the discrete trial training provided by Ms. O’Neil. Dr. Pinnock explained that discrete trial training requires accurate data since all decisions regarding what skills should be addressed depend on accurate data; in order to proceed from one step to a second step, the child must demonstrate mastery of the first step. Dr. Pinnock concluded in her testimony that there was no successful discrete trial training during this observation.
85. Dr. Pinnock testified that she visited the home for a second observation of home therapy on September 26, 2005. She stated (and her written report, exhibit P-2, reflects) that during the observation, Student’s behavior was not under instructional control and he did not appear any more compliant than during the August visit. She concluded that it is taking longer than would be expected for Ms. O’Neil to establish control over Student’s behavior. Dr. Pinnock also noted that a systematic toileting plan is not yet in place, even though Student has not successfully eliminated in the bathroom at school or at home since the program began.
86. Dr. Pinnock wrote in her report regarding the home visit that again, Ms. O’Neil did not track the trial results in real time and that relying on memory is likely to yield inaccurate data. Dr. Pinnock testified that she is concerned that Ms. O’Neil may not have received appropriate training for purposes of providing home therapy. She also noted that Ms. O’Neil spent a significant amount of time during therapy talking with Parent about topics unrelated to Student’s therapy, thereby reducing the amount of time for therapy. She concluded that the home component of services from Fall River is not sufficient to result in generalizing appropriate behaviors to the home and community environments. Exhibit P-2.
87. Dr. Pinnock testified that she reviewed Student’s current IEP (exhibits S-2, P-11). She stated her concern that the language goals reflect “extremely low” expectations for Student compared to his potential to learn language. She noted that the language goals are not sufficient if the purpose of his educational services is to develop his language to an appropriate level for Student. She reviewed, for example, goal # 1, which addresses communication. She noted that the benchmarks/objectives under this goal focus on imitation skills, which she noted would be appropriate for the first few days or weeks, but that this goal needs to reflect attaining more spontaneous language and greater development in the language hierarchy. Dr. Pinnock found that missing from this IEP was any kind of comprehensive approach to the development of Student’s language.
88. Dr. Pinnock testified that Student’s early intervention evaluation in March 2004 indicated that Student had command of 25 words; that Fall River’s psychological assessment in October 2005 reflected that Student, over the previous few months, had used, at one time or another, 75 words; and that Parent’s assessment of words used listed approximately 65 words as of November 1, 2005. Exhibits P-4, P-6, S-6. Dr. Pinnock noted her concern at this very slow rate of development of Student’s language.
89. Dr. Pinnock testified that an age peer of Student would typically have command of 4,500 words and that a continuation of the kind of services being received by Student would likely result in his falling even further behind his peers in language development. She emphasized that for Student to develop cognitive skills, he needs to acquire age-appropriate language; that the only way for him to develop language at a faster rate is to provide more intensive instruction; and the more that he is taught, the more that he will learn.
90. Dr. Pinnock reviewed the graphs illustrating Student’s progress that are included at the end of the report of Dr. Sisson dated October 31 2005 (exhibit S-9). Dr. Pinnock stated that she would need additional information to understand some of the graphs but that the graphs that she was able to comment upon showed some progress in certain areas (for example, self-injurious behavior and acquisition of words and phrases) as a result of the increased services provided from July 2005 to October 2005. She explained that this indicated that with intensive services that are appropriate for a child with Student’s profile, Student would likely make greater progress.
91. Dr. Pinnock testified that the cognitive testing of Student is not a reliable measure of intelligence because of his young age and because of the limitations of his language; that IQ is not set in stone until approximately age 8 years; and that with intensive services for a child with Student’s profile, IQ may increase by as many as 50 points.
92. Dr. Pinnock testified that educational services to a child with Student’s profile are most effective between the ages of 2 and 7 years, with interventions most effective in the earlier years since a child will have had less time to practice the interfering (inappropriate) behaviors – a child such as Student will practice inappropriate behaviors (and the inappropriate behaviors will become increasingly more difficult to address) until appropriate behaviors are taught to him. Dr. Pinnock explained that research indicates that if appropriate, intensive services are not provided sufficiently early in a child’s life, then there is a good chance that the child will be dependent for the remainder of his/her life – there is no known spontaneous recovery at a later time in life. She also noted that with intensive services provided early in the child’s life, at least 50% of the children will likely return to a regular education classroom in public school, either with or without supportive special education services. She noted the “overwhelming evidence” that money appropriately spent on children with Student’s profile will save millions of dollars for services and supports for those persons later in their lives.
93. Dr. Pinnock testified that Student has the capacity to learn language. In order for Student to develop language consistent with this capacity, she recommended that he receive intensive and appropriate educational services, as reflected within her written report of June 3, 2005.
94. Dr. Pinnock testified that Fall River’s program, as reflected in the IEP and during her observations, does not meet these recommendations. She noted that the program has been improved, beginning in the summer of 2005, but that the program continues to be insufficient in light of Student’s current behavioral needs (that include screaming, head banging, throwing himself on the floor, and other self-injurious behavior principally in the home and community), his deficits regarding play skills, and his language needs. She recommended that Student attend a much more intensive program to address these needs and deficits.
95. Testimony of Jane Carlson . Jane Carlson testified (and her resume, exit P-3, reflects) that since July 2003 she has been the Clinical Director at the May Institute that is currently located in Randolph, MA, and in that role, she oversees all aspects of the program. From September 2000 to June 2003, she was the Education Director of the Autism Center of Virginia and in this position directed all aspects of the Center, and during this time period was assistant professor in the department of psychiatry at the Medical College of Virginia. From September 1998 to September 2000, she was the Director of the Autism Inclusion Project in New York. She has significant additional experience working with persons with developmental disabilities. She has spent 23 years working with persons with autism. She received her PhD in clinical psychology in 1999 with a specialty in autism, and her master’s degree in psychology in 1990. Since 2000, she has been a Board-Certified Behavior Analyst.
96. Dr. Carlson testified that she spent approximately three hours reviewing the application file received from Fall River regarding Student, as well as Fall River’s and Parent’s exhibits in the current dispute, which included several IEPs, evaluation and progress reports, and behavior support plan. She did not speak with anyone regarding Student, nor has she visited his home or classroom.
97. Dr. Carlson testified that on the basis of her review of documents, she understands that Student has a diagnosis of autism with significant delay in receptive and expressive language and significant behavior deficits, and that he has been provided a mixed approach of services that includes a behavior component, speech language services and occupational therapy. She stated that she has experience developing and reviewing programs for approximately 250 to 300 other children with a similar profile and age as Student. This has included her reviewing programs for various school districts.
98. Dr. Carlson reviewed Student’s most recent IEP (exhibits S-2, P-11). She opined that the 6 goals and the corresponding benchmarks/objectives within the IEP are not appropriate for the purpose of developing Student’s language. She explained, for example, that goals # 1 and 2 and the benchmarks/objectives (that address language and communication skills) therein focus almost exclusively on developing imitation skills. She noted that while imitation skills are important, it is not a sufficient focus and it is of concern that this is the primary focus of the IEP goals intended to develop language and communication skills over the course of the school year. She explained that it should not take 9 months (the life of the IEP) for Student to develop imitation skills; and the IEP should reflect Student’s need, in general, to go through a sequence of stages in the development of his expressive language, including, in particular, a skill sequence to develop Student’s conceptual language. Dr. Carlson found no appropriate goal in the IEP to address Student’s expressive and receptive language, and that the IEP does not adequately address Student’s cognitive development. She also noted that the IEP goals are not sufficiently measurable to track progress over time, and this is important with respect to developing and adjusting Student’s educational program. She concluded that the IEP goals do not reflect a comprehensive approach to the development of language.
99. Dr. Carlson testified that the “early word list” used by Fall River (exhibit P-26) is not sufficiently comprehensive.
100. Dr. Carlson testified regarding the importance of appropriate data being collected in providing educational services to a child with Student’s profile. She explained that inadequate data will limit the ability to make appropriate educational decisions; appropriate data is critical to moving a child forward in his education since service delivery decisions for a child with Student’s profile are data-driven – that is, data needs to be used continually by those working with a child to determine the effectiveness of the services and to make appropriate adjustments in the educational services.
101. Dr. Carlson testified that she reviewed the data sheets for Student in the classroom (exhibit S-12) reflecting the discrete trial training, and noted the heavy emphasis on motor skills. She expressed concern that there are not enough program areas being addressed through data collection and, in general, noted that there is not sufficient data being collected to drive decision-making regarding Student’s educational services. Similarly, she found the data from the home services (exhibit S-15) to be so non-specific that it is not possible to tell what the data means. In reviewing all of the data, she found that the data was insufficient to identify the type of instruction being provided and that this is also problematic in making use of the data for decision-making. She also noted that there are large amounts of data where little or no progress is indicated, with no indication of any change in teaching strategy.
102. Dr. Carlson testified that from the data, it is difficult to tell what discrete trial training is being used. She also opined that, based on her review of the data, the instructional teaching does not follow any of the accepted conventions of discrete trial training.
103. Dr. Carlson testified as to the importance of the development of Student’s language skills. She explained that language is the variable associated with a good educational outcome for a child with Student’s profile; language development impacts cognitive development and cognitive development impacts language. Dr. Carlson explained in some detail the sequence of skills needed to develop language and how this development impacts a child’s cognitive skills. She noted that it is not unusual for a child such as Student to score very low on cognitive testing since this testing is so focused on language, but that with appropriate educational services, a child’s IQ score can improve fairly rapidly and jump an entire standard score.
104. Dr. Carlson testified as to the importance of having an appropriately-intensive educational program for a child with Student’s profile and the importance of this program being provided early in Student’s life. She explained that if such a program is provided for several years prior to a child’s 6 th or 7 th birthday, the child has about an 85% chance of learning to use functional language in order to have his/her needs met in life. Conversely, if a child does not develop a good fund of language by his/her 6 th or 7 th birthday, it is unlikely that this will ever occur over the remainder of the child’s lifetime. She noted that younger children (such as Student) at the May Center usually stay in this program for a couple of years and are then able to move back to a public schools program, but children who come to the May Center later (for example, in adolescence) are likely to stay at the May Center until age 22 (that is, through the remainder of their entire special education eligibility).
105. Dr. Carlson testified regarding the importance of Student’s learning to generalize what he has learned in one environment (for example, the classroom) to other environments (for example, home and the community). She opined that a program needs to systematically plan for skill generalization so that it is incorporated into every part of Student’s services.
106. Dr. Carlson testified that it appears, from the data that she reviewed, that Student has made some progress, but that the data collection by Fall River is not sufficient to determine either the magnitude of this progress or whether the progress is impacting upon the core aspects of Student’s autism. She noted that Student presently has some language and imitation skills and with this profile, she would expect that Student would be able, fairly rapidly, to attain language skills in a structured program. She noted that with Student’s profile, one would expect that in an appropriate program, he would have learned significantly more than 50 words over a 19-month period.
The May Center
107. Student has been accepted for admission to the May Center for Early Childhood Education (May Center), which is a part of the May Institute. The May Center is located in Randolph, MA. Testimony of Carlson; exhibit P-16.
108. Dr. Pinnock testified that she very recently visited the May Center and believes that it would be an appropriate program for Student, and would provide Student with the intensity of services that he requires.
109. Dr. Carlson testified that if Student attended the May Center, he would participate in a self-contained classroom for children with a diagnosis of autism or pervasive developmental delay. The staffing ratio in the class would be one teacher for every two students, with half of the time spent with a teacher on a 1:1 basis. It would be a full-day (8:30 AM to 3:00 PM) full-year program. She explained that all lead teachers are certified, with others having a BA degree and working towards certification. All staff receive an initial two-week training (roughly 80 hours) and then weekly in-service training and very structured supervision by masters-level, highly-experienced educational coordinators most of whom are board certified behavior analysts.
110. Dr. Carlson described a typical day for Student (were he to attend the May Center) as including 3½ to 4 hours per day of directed instruction that is individually designed for the student with the remainder of the time being less structured but always instructional in the sense that a child’s educational goals are continually being worked on, whether the time is used for art, music, library, recess, bathroom, passing in the hallway or circle time. She testified that the May Center’s program for Student would meet recommendations numbered 1, 2, 4 and 5 of Dr. Pinnock contained within her report of June 3, 2005(exhibit P-31), and Dr. Carlson described how these recommendations would be met.
111. Dr. Carlson testified that the May Center does not provide home services to a student. However, the May Center makes home visits and coordinates any home services provided by others to ensure that they are consistent with the services provided by the May Center.
C. DISCUSSION
Legal standard
Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 As such, Student is entitled to a free appropriate public education (FAPE).4 Neither his eligibility status nor his entitlement to FAPE is in dispute.
In general, FAPE is intended “to open the door of public education to handicapped children”5 rather than to require the “best” possible educational services for a student.6 More specifically under state and federal special education law, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs7 in a way reasonably calculated to enable the student to make meaningful8 and effective9 educational progress in the least restrictive environment.10 The appropriateness of an IEP is judged by “ what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated”.11
The IDEA does not reference potential to learn as part of its definition of FAPE. However, in interpreting and applying the IDEA, the federal courts have both implicitly (for example, Rowley ) and explicitly (for example, Deal v. Hamilton ) made clear that in determining whether a particular student’s likely progress is sufficient for the IEP to be appropriate, one must consider the potential of the particular student to make educational progress. In order to comply with the FAPE standard, the student’s likely progress under the proposed IEP must be commensurate with his or her individual potential.12 Similarly, federal Courts have noted the importance of providing special education services for the purpose of enabling a student to benefit from a public education.13
The IDEA’s definition of FAPE incorporates, by reference, any state standards.14 The Massachusetts definition of FAPE provides that the relevant state standards are included within state statute as well as regulations promulgated by the Massachusetts Board of Education.15
Massachusetts, through its educational statutes and special education regulations, has made explicit the principle that special education services are to be designed to develop a student’s individual educational potential. The Massachusetts general education statute states the “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 ”. The Massachusetts special education statute defines the term “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”16 In its special education regulations, Massachusetts has further emphasized this point by identifying the purpose of the regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”.17
For reasons explained immediately below, the question of Student’s potential to make educational progress and what might be done to develop further this potential is particularly relevant in the present dispute.
“Window of opportunity”
Two of Parents’ three expert witnesses (Pinnock, Carlson) and Fall River’s expert (Sisson) agreed as to the critical importance of providing effective services to a child with Student’s profile during his early years (age 2 through 7 years) during which there is a “window of opportunity” that will quickly close after the student reaches age 7. Facts section of this Decision (Facts) pars. 45, 91, 92, 104.
Federal courts and Massachusetts Hearing Officers have similarly recognized the importance of considering this “window of opportunity” for young children with autism, such as Student, when determining what special education and related services should be provided in order to ensure a child’s meaningful access to education and to avoid jeopardizing a child’s opportunity to make effective progress.18
There is no dispute in the instant appeal that failure to provide appropriate services to Student during this time period (ages 2 to 7) would likely foreclose any opportunity for Student to develop functional language and learn as a typical child. On the other hand, although nothing is guaranteed with respect to any student’s development, with the provision of appropriate services for several years prior to Student’s 6 th or 7 th birthday, Student would likely learn functional language and eventually become independent. Facts pars. 45, 91, 92, 104.
The IDEA emphasizes the importance of providing special education services that will likely result in a student’s self-sufficiency and independence.19
Credibility of the expert witnesses
This is a close case. Each party put forth a significant amount of evidence regarding Student’s needs and how they should be met, as well as what progress Student is making.
There is relatively little dispute regarding the facts, including the facts relevant to Student’s progress. Rather, the question at issue is whether the progress that Student has been making (and likely will continue to make) under the most recent IEP is sufficient in light of Student’s potential to learn and in light of the “window of opportunity” that presently exists. In seeking to answer this question, this appeal, ultimately, turns on the credibility of the expert witnesses and their opinions as to what are appropriate expectations regarding Student’s progress and what services are necessary in order that Student likely obtain that progress.
Fall River presented a number of witnesses (Wordell, O’Neill, Lider, Phillips, Garofalo, Sisson) who have worked with students with autism and some of these witnesses have substantial experience in this area. However, only one of the Fall River witness (Sisson) may properly be considered to have sufficient education, experience and knowledge to provide an expert opinion regarding Student’s needs and how they should be met in order that he receive appropriate special education services. It was Dr. Sisson who, as Fall River’s consultant regarding Student’ special education services, advised Fall River and supervised the development and implementation of Student’s services that are reflected within the proposed IEP.
Parent presented three witnesses (Audet, Pinnock, Carlson) who have sufficient education, experience and knowledge for purposes of providing an expert opinion regarding Student’s needs and how they should be met in order that he receive appropriate special education services. Although I found Dr. Sisson’s relevant education, experience and knowledge to be impressive, I found the qualifications of each of Parent’s three experts to be more so.
Although I do not question the qualifications of Dr. Sisson to render expert opinions regarding Student’s needs and how they should be met, I note that much of Dr. Sisson’s more recent relevant experience (from 1996 to 2002) was involved in management positions, including responsibility for the development of contracts, for the May Institute. Parents’ experts (individually and collectively) have stronger clinical experience, particularly over the past ten years. Perhaps most importantly, when comparing the testimony of the four experts, I was persuaded that the individual and collective opinions and recommendations of Dr. Audet, Dr. Pinnock and Dr. Carlson were based on a more sophisticated, detailed and complete understanding of Student’s needs as a child with autism and how his educational needs should be met in accordance with accepted, professional standards. I reached this conclusion notwithstanding the fact that Dr. Sisson has spent more time working directly with Student than any of Parent’s three experts. Facts pars. 43, 53, 54, 55, 72, 73, 95.
Except where specifically noted otherwise, I have fully credited the opinions of Parent’s three experts (Audet, Pinnock, Carlson) and have not fully credited the opinions of Fall River’s expert (Sisson) and the opinions of other Fall River witnesses where their opinions diverged from or conflicted with those of Parent’s experts.20
Appropriateness of Fall River’s IEP
The principal issue in dispute is the appropriateness of Fall River’s IEP. In order to address this question, I consider a variety of factors.
Student’s progress in general . It is not disputed that Student has made progress through the services that he has been provided at the Greene School and at home pursuant to the most recent IEP, and it is also not disputed that Student is likely to continue to make progress in the event that these services were to continue. Although I consider Student’s progress generally, I focus in particular on his progress since July 2005 when Fall River increased Student’s services.
Since July 2005, Student has been placed in a substantially-separate, full-day program serving only children with autism. The program is staff-intensive with one teacher and two aides serving four children. Student also receives substantial amounts of 1:1 discrete trial training during the day. The teacher (at least since September 2005) has sufficient experience working with children with autism, and she is supervised, in part, by Dr. Sisson who is an expert in this area. Although the IEP was revised in September 2005, the services under the IEP did not significantly change at this time. Facts pars. 2, 10, 11, 14, 23.
To Fall River’s credit, Student has demonstrated progress since July 2005 as a result of these increased services. Progress has been observed with respect to vocabulary and use of language, eye contact, imitation skills, following directions and routines, sitting on the potty and making choices. In addition, his behavioral difficulties, including self-injurious behavior and refusal behavior, have decreased. Facts pars. 25, 26, 27, 30, 31, 34, 36, 42, 48, 49, 51, 52.
For the most part, this progress has been demonstrated within the classroom, but some progress in these areas has also been observed within the home setting. Student’s progress in these various areas has been documented through data collected by staff, written staff reports and graphs prepared by Dr. Sisson. The demonstrated progress relates directly to the benchmarks/objectives relevant to the IEP goals. It has also been established that, as compared to the 2004-2005 school year, Student is now more engaged and has become a more “happy” participant in the classroom routines. Facts pars. 27, 30, 31, 42, 48, 49, 51.
The question in dispute, however, is not whether Student has made (and will likely continue to make) progress. Rather, what is at issue is whether this progress is sufficient, or stated in different language, whether the services and placement reflected within the IEP are reasonably calculated to result in effective and meaningful progress in light of Student’s potential to learn and in light of the limited “window of opportunity” during which educational services are likely to be most effective.
Student’s potential to learn . Fall River witnesses correctly pointed to the fact that Student was making significant progress in reaching the goals in his IEP, particularly with respect to language. Student’s progress in relation to his IEP goals is undisputed. Dr. Sisson and other Fall River witnesses further took the position that Student’s progress is commensurate with (or even exceeds) his capacity to learn. Facts pars. 25, 26, 31, 34, 37, 52.
What Fall River has believed to be significant progress (particularly in the area of language), Parent’s experts have seen as insufficient. The principal difference in perspective relates to one’s understanding of Student’s capacity to learn.
Dr. Pinnock and Dr. Carlson were persuasive that the language goals within Student’s IEP reflect expectations that are too low for Student and that the IEP lacked a comprehensive approach for the development of language. Parent’s experts have a more ambitious vision of Student’s capacity to learn, based upon his receiving a program of intensive services provided during the “window of opportunity” from ages 2 through 7. Facts pars. 87, 98.
I fully credit the opinions of Parent’s experts in this regard and find that Student has the potential to make significantly greater progress in general and with respect to language in particular than is reflected within Student’s IEP goals, provided that he receives appropriate services. Fall River’s more limited view of Student’s potential to learn has also influenced, in a negative way, the services being delivered pursuant to this IEP.
Intensity of services within the classroom . It is not disputed by Fall River’s and Parent’s experts that for the special education services to be appropriate, and therefore take advantage of Student’s capacity to learn during the “window of opportunity” that presently exists, the services must be sufficiently intensive. Facts pars. 45, 57, 69, 70, 78, 80, 82, 89, 90, 91, 92, 93, 94, 104.
Dr. Sisson as well as Parent’s experts also agreed that it is most important that Student’s language be developed – language is generally considered to be the critical skill that must be developed during this time period in order for Student to make effective progress both academically and behaviorally. Facts pars. 46, 89, 103.
I am persuaded by the testimony of Dr. Audet and Dr. Pinnock that the classroom instruction, as they observed it on several occasions, is not sufficiently intensive or effective, particularly with respect to the development of language in order to take advantage of Student’s potential to learn. Although these observations were, by necessity, limited in duration, it would be expected that staff, knowing that they were being observed by Parent’s experts, would be particularly conscientious in doing what they believed to be appropriate for Student. Yet, the instruction and interactions by staff were found to be substantially lacking during these times by two persons with considerable expertise regarding what services are needed for a child with Student’s profile. Facts pars. 69, 70, 80, 90, 94.
Dr. Audet found during her visit that there were only limited attempts by staff to encourage social interaction or to otherwise engage Student. Dr. Pinnock observed no instruction targeted on language during the two hours of her most recent visit. During an earlier observation in July 2005, Dr. Pinnock observed that Student said very few words and very few verbal demands were placed upon him although when asked to say a word, he frequently responded. The activities in which he was engaged did not elicit conversation.21 Facts pars. 69, 78, 80.
Both Dr. Audet and Dr. Pinnock observed numerous examples of specific, missed opportunities to provide instruction, particularly with respect to language. During the discrete trial instruction, play and reciprocal skills were practiced and expressive language was encouraged; but there was insufficient focus on expressive language. Student was encouraged, but not required to respond verbally – that is, a verbal response was not required by the teacher prior to completing a task. During 1:1 time with staff, the instruction was not sufficiently intensive – staff were not persistent and provided no repetitive teaching or reinforcing in seeking to obtain responses from Student. Facts pars. 69, 80, 81.
During the half hour for breakfast observed by Dr. Pinnock, there was no opportunity provided for Student to develop language. During breakfast, Dr. Audet observed that no one engaged Student socially. At other times (for example, during play time when he had a toy and during circle time), staff did not attempt to facilitate communication. During toileting where Student was given a book to look at and was asked questions about the colors of the book, staff neither required Student to answer nor modeled appropriate answers. Facts pars. 69, 80, 81.
Dr. Pinnock and Dr. Audet were persuasive that in order for Student to make sufficient progress regarding language, these missed opportunity to develop Student’s language must be utilized in order to take advantage of Student’s “window of opportunity”.
Dr. Carlson also raised significant concerns regarding the data collection being utilized. Without appropriate data collection, it is not possible for services to a child such as Student to be effective. Facts pars. 100, 101.
Fall River witnesses (Wordell, Lider, Garofalo, Sisson) disagreed, in general, with the opinions of Dr. Pinnock and Dr. Audet. The Fall River witnesses took the position that Student is being provided a significant amount of meaningful interaction with staff throughout the school day. Ultimately, this is a question of credibility. What to the Fall River witnesses appeared sufficient and appropriate, appeared to Dr. Pinnock and Dr. Audet to include gaps that are likely to be negatively impacting upon Student’s current progress in a significant way and thereby likely compromising his ability to learn. For the reasons stated above, I fully credit the opinions of Dr. Pinnock and Dr. Audet in this regard.
For these reasons, I find that Fall River’s services, as implemented pursuant to his IEP, are not sufficiently intensive to appropriately address Student’s special education needs consistent with his potential to learn.
Student’s progress in the classroom . As noted above, it is not disputed that Student has made progress within the classroom. Dr. Audet and Dr. Pinnock observed, consistent with the written reports and testimony of Fall River staff, that Student was able to remain with the group, took turns, was able to make a choice and in general responded appropriately. Student occasionally showed interest in interacting with other children. He seemed familiar with the class routine, and he was under instructional control during structured activities (particularly when receiving individual, direct teaching). Parent’s experts were also encouraged that Student was able to follow classroom routines without aggressive or disruptive behaviors. Facts pars. 66, 79.
As noted above, Student has made progress regarding his vocabulary and use of language, as well as social and play skills. However, Parent’s experts were persuasive that far too little progress has been made in these areas of development, given the amount of time Student has been receiving services from Fall River and given his potential to learn at this time. Dr. Audet observed Student and reviewed written reports of his progress. She noted that Student does not produce much language – he labels a few objects, uses a few nouns and verbs, but overall has very little verbal production and is not able to use language to express curiosity and to learn through language. She observed that Student demonstrated very little spontaneous use of language, he did not initiate interactions with his peers, he did not imitate any vocalizations when prompted, he labeled only a few objects and he demonstrated very little spontaneous/creative play skills. She concluded that Student has made very slow progress, particularly in the area of language, which, as noted above, is generally considered to be the critical skill that must be developed during Student’s “window of opportunity”. Facts pars. 65, 68, 70.
Dr. Pinnock observed the classroom on several occasions and reviewed the written reports (including graphs by Dr. Sisson) that Fall River’s witnesses relied upon in support of their position that Student was making effective progress. She testified that Student has made some progress in certain areas (for example, self-injurious behavior and acquisition of words and phrases) as a result of the increased services provided from July 2005 to October 2005, However, with respect to development of language in particular, she found it concerning that since last school year, Student has gained the use of only approximately 50 additional words. Dr. Pinnock was persuasive that Student’s overall progress (particularly regarding acquisition of language) has been very slow. Facts pars. 88, 90.
Dr. Pinnock and Dr. Audet concluded, and I so find based upon their credible testimony, that Student’s overall progress has been much more limited than it would likely be with appropriate services. The most critical piece of Student’s development is the acquisition of language skills, and it is in this area that Student’s progress has been notably slow. It is of particular concern that Student’s slow rate of progress is occurring during the time period (“window of opportunity”) when he has the most potential to learn and when one would expect the instruction to be most effective. Facts pars. 70, 71, 90, 94.
I conclude that the Fall River services and placement, pursuant to its most recent IEP, are not sufficiently taking advantage of Student’s time-limited opportunity and potential to learn.
Student’s progress outside of school . Both Fall River’s expert and Parent’s experts agreed as to the critical importance to Student’s progress that he generalize what he has learned (both academically and behaviorally) from one setting (for example, school) to other settings (for example, home and community). Facts pars. 46, 63, 70, 105.
Parent’s testimony reflects less progress regarding language than has been reported within the classroom. For example, she explained that the words that he says are used only through imitation or repeating. Student is not able to use language to ask a question, give an answer or make a choice at home. Facts par. 18.
As discussed in more detail below, Student has been unable to generalize his behavioral gains from the classroom to the home and community – in fact, there has been regression in this area.
It is not disputed that it took several weeks to move past Student’s behavior difficulties that precluded any effective home therapy and that even after those first few weeks, Student’s progress has been slow within the home component. Dr. Sisson made clear that he believes that the IEP Team needs to reconsider the manner in which home services are provided. I concur with Dr. Sisson in this regard. Facts pars. 21, 22, 29, 30, 51, 52.
Dr. Pinnock testified, based upon her several observations, that there are significant deficiencies in the manner in which the home therapy has been implemented, calling into question the qualifications of the service provider. I find the testimony of Dr. Pinnock to be credible. I conclude, as she did, that the home component of services from Fall River has not been appropriate or effective. Facts pars. 84, 85, 86.
This evidence indicates, and I so find, that Fall River’s services, as reflected within its most recent IEP, have been ineffective in allowing Student to generalize social, language and behavioral gains from the classroom to other settings.
Behavior in the community . Student has also failed to generalize his behavioral gains from the classroom to the home and community. In fact, his behavior has regressed in these less structured environments to an alarming degree.
Dr. Audet testified to the steady regression that she has observed in Student’s behavior during the last three visits to her office (during the past 18 months), with the behavior during each visit being more troublesome than the behavior during the previous visit. These behavior difficulties included screaming, throwing objects and inability to engage with Dr. Audet. Her observations were consistent with what has been reported to her by the private speech language therapist and by Parent. She noted, with concern, how unusual it was for a child with Student’s profile to continue to have severe behavior difficulties after having spent so much time receiving services from a school district. Facts pars. 59, 60, 61.
Parent testified that her son’s behavior at home and in the community started getting worse towards the end of the summer, and she has noticed regressive behaviors over the past month or so. He has been screaming more in public and has increased his self-injurious behavior (including banging his head on the wall and biting his hand). Parent testified that her son has also regressed socially over the past month or so. Facts par. 19, 20.
There was no evidence that was contrary to or inconsistent with this testimony of Dr. Audet and Parent. I fully credit their conclusions that Student’s behavior has been regressing outside of the classroom.
Student’s behavioral regression is of particular concern for several reasons. First, the behaviors themselves are relatively extreme. Second, as Dr. Audet pointed out in her testimony, Student is now in the process of actually learning these inappropriate, anti-social behaviors since more and more he is “practicing” them. The longer this learning process continues without correction, the more difficult it will be for Student to un-learn and correct his inappropriate behavior. Facts par. 62. Third, this regression is occurring during the time when there is the most opportunity for Student to be learning more appropriate behavior.
Conclusions . In light of the above findings with respect to the appropriateness of the IEP goals and expectations for Student, the intensity of the services being provided, the progress being made in the classroom, generalization of what has been learned from the classroom to the home and community, and behavioral regression in the home and community, I am persuaded that the IEP most recently proposed by Fall River has not and would not likely result in meaningful or effective progress commensurate with Student’s potential to learn.
I believe that there is an unacceptably high likelihood that if Student were to continue in Fall River’s proposed program and services pursuant to its IEP, this would jeopardize Student’s remaining, time-limited “window of opportunity” to become a functional and independent person.
I conclude that the IEP is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Additions or other modifications to the IEP
Having concluded that the most recently proposed IEP is not appropriate, I turn to the question of whether additions or other modifications can be made to the IEP so that it will be reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Additions or modifications can easily be made to an IEP if, for example, it is only a question of adding a missing service or increasing the frequency of a particular service or re-writing one or more IEP goals. In the present dispute, as explained above, the deficiencies of the IEP go to the content of the IEP as well as to the manner in which the services under the IEP are provided. Adequate correction of these deficiencies would require that changes be made throughout the program and that these changes be implemented by staff and be overseen by an expert who understand and accept their validity. This would likely be impossible to accomplish in the short term and would be uncertain in the long run.
For these reasons, I find that additions or other modifications cannot be made to the IEP so that it will be reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
The May Center
Having concluded that the IEP is not appropriate and cannot be modified so that it is appropriate, I turn to the question of the appropriateness of a placement of Student at the May Center in Randolph.
It is not disputed by Fall River within its closing argument that the May Center would be an appropriate placement for Student. Student has been accepted for admission to the May Center. The unrebutted testimony described services and placement that would be appropriate for Student. Facts pars. 108, 109, 110.
I find that placement at the May Center would likely result in Student’s receiving a free appropriate public education in the least restrictive environment.
Accordingly, Fall River shall place Student at the May Center as soon as possible.
Home services
Having concluded that Student should be placed at the May Center, I consider briefly the question of home services.
According to Dr. Carlson’s testimony, the May Center recognizes that home services may be necessary for some students as an addition to what is provided by the May Center. She noted that, from the perspective of the May Center, it is best to determine the nature and scope of home services on the basis of the individual needs of the particular child after taking into consideration the services that the student is receiving at the May Center. This process of determining what, if any, home services should be provided occurs, presumably, at some point in time after services from the May Center have begun.
The May Center does not, at least directly, provide home services. The May Center makes home visits and coordinates any home services to ensure that they are appropriate and consistent with the services provided by the May Center. Facts par. 111.
For these reasons, I find that it is premature, at this time, to order home services. Fall River shall re-convene a Team meeting on a date determined to be appropriate by the May Center in order to consider the issue of home services. It is anticipated that (1) during such Team meeting, it will be determined whether home services are appropriate, (2) any home services will be provided (directly or indirectly) by Fall River, (3) the nature and scope of home services should be consistent with recommendations from the May Center, and (4) home services should be coordinated with appropriate May Center staff.
D. ORDER
The IEP most recently proposed by Fall River is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Additions or other modifications cannot be made to the IEP in order to meet this standard.
Placement at the May Center would result in Student’s receiving a free appropriate public education in the least restrictive environment.
Accordingly, Fall River shall place Student at the May Center as soon as possible.
Home services are not ordered at this time. However, an IEP Team meeting shall be convened and home services shall be considered and, if appropriate, provided in accordance with the part of the Discussion, above, entitled “Home services”.
By the Hearing Officer,
William Crane
Dated: December 21, 2005
APPENDIX A
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Fall River Public Schools BSEA # 05-5383
ORDER
In order to apprise the parties in a timely manner of my findings and conclusions in this case, this Order is issued today, in advance of the full Decision, which I expect will be issued no later than December 23, 2005.
A hearing was held on November 14, 15, 18 and 28, 2005 in Malden, MA, before William Crane, Hearing Officer.
The issues to be decided in this case are the following:
· Is the individualized education program (IEP) most recently proposed by Fall River reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
· If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
· If not, would placement at the May Center in Randolph, MA, satisfy this standard?
After careful consideration of the evidence and arguments, I make the following findings:
· The IEP most recently proposed by Fall River is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Additions or other modifications cannot be made to the IEP in order to meet this standard.
· Placement at the May Center would result in Student’s receiving a free appropriate public education in the least restrictive environment.22
Accordingly, Fall River shall place Student at the May Center as soon as possible.
By the Hearing Officer,
/s/ William Crane
William Crane
Dated: December 15, 2005
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Dr. Carlson testified by telephone.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
5
Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 192, 102 S.Ct. 3034, 3043 (1982).
6
E.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st 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.”).
7
E.g., 20 USC 1400(d)(1)(A) (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(25) (“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”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Smith v. Fitchburg Public Schools , 401 F.3d 16 (1 st Cir. 2005) (“IDEA was enacted ‘to ensure that all children with disabilities have available to them a free appropriate public education … designed to meet their unique needs’”, quoting 20 U.S.C § 1400(d)(1)(A)) .
8
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”).
9
20 USC 1400(d)(4) (a purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”); 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.”).
10
This standard is discussed at greater length in In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
11
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
12
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 (1982) ( 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 ”).
13
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 206-207 (1982) (IEP must be “reasonably calculated to enable the child to receive educational benefits” (emphasis added); T.H. v. Board of Education of Palatine , 55 F. Supp.2d 830 (N.D.Ill. 1999) (inquiry is whether the IEP would help equip student with the tools he’ll need to benefit from a public education).
14
33 USC 1401(8).
15
MGL c. 71B, s. 1.
16
MGL c. 69, s. 1; MGL c. 71B, s. 1. 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”).
17
603 CMR 28.01(3).
18
See, e.g., TH v. Board of Education of Palatine , 55 F. Supp.2d 830 (N.D.Ill. 1999):
The experts testified that there is a critical developmental window for autistic children with language and behavioral deficits. Without sufficient adult intervention now to help reprogram [student’s] young brain, his opportunity for “meaningful access to education” may be permanently foreclosed. [Citations omitted.]
See also JH v. Henrico County School Board, 326 F.3d 560 (4 th Cir. 2003) ( “window of opportunity” is relevant in determining the level of services needed to prevent student’s progress from being “significantly jeopardized”); Lawyer v. Chesterfield County School Board, 19 IDELR 904 (E.D. Va. 1993) (court first notes “a small, but vital, window of opportunity in which [students with moderate to severe childhood autism] can effectively learn”. . . and then concludes that “it is extremely important that at this critical stage of development, [student] receive uninterrupted speech language therapy”); In Re: Haverhill Public Schools , BSEA # 04-4998, 10 MSER 350 (MA SEA 2004) (critical importance of providing effective services to a child on autism spectrum during his early years); In Re: Revere Public Schools, 38 IDELR 116 (SEA MA 2002) (student is “in a critical period of child development and this valuable window of opportunity for Student to receive FAPE must be fully utilized”); In Re: Belmont Public Schools, 35 IDELR 77 (SEA MA 2001) (because of Student’s window of opportunity to absorb more education now than when she reaches age 7 or 8, it is “particularly important to provide Student at this point in time with all of those educational services from which she can benefit” [emphasis in original]); In Re: Winthrop Public Schools, 29 IDELR 558 (SEA MA 1998) (“there is a narrow window of opportunity which must be capitalized upon in educating children, such as Student, who present with autism/PDD, if their educational development and potential is to be maximized”); In Re: Watertown Public Schools , 24 IDELR 92 (SEA MA 1996) (“Children with PDD and autism have a window of opportunity from the ages of roughly three to seven in which their capacity to learn is at their greatest. Once the window of opportunity closes, hope for further development is greatly limited.”).
19
Congress passed the IDEA, in part, so that students with disabilities could “achieve a reasonable degree of self-sufficiency” and “become a contributing part of our society.” Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 201 n.23 (1982). The IDEA is intended “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 USC 1400(d)(1)(A).
20
Only in two areas do I not fully credit the testimony of Parent’s experts. I find that Ms. O’Neil was keeping contemporaneous data records and do not credit Dr. Pinnock’s testimony in this regard. I also do not believe that Dr. Carlson had a complete and accurate understanding of the program being provided Student at the Greene School.
21
Dr. Pinnock was particularly concerned to observe the inadequacy of work on language development during this observation since the observation followed an IEP meeting in which language was addressed as a concern. As a result, Dr. Pinnock recommended to Fall River that it provide Student with a program that provides intensive language development.
22
In the full Decision, I will separately address the issue of home services. This issue need not be addressed by me at this time.