COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Foxborough Regional Charter School
BSEA # 06-3158
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 May 10 and 12, 2006 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Student’s Aunt
Jennifer Adams Teacher, Foxborough Regional Charter School
Deborah Southworth Speech language pathologist, Foxborough RCS
Nancy Maxwell Occupational Therapist, Foxborough RCS
Kevin Plummer Psychologist (testifying by telephone)
Lauren Fain Director of Special Education, RCS
Devin Moriarty Attorney for Foxborough RCS
Richard Greenberg Attorney for Foxborough RCS
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-71; documents submitted by the Foxborough Regional Charter School (Foxborough) and marked as exhibits S-1 through S-27; and approximately two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on May 22, 2006, and the record closed on that date.
INTRODUCTION
As set forth within Parents’ Hearing Request , filed on April 5, 2006, there are two parts to this dispute. First, the Parents of a bright 1 st grader, who has been diagnosed as having Asperger’s syndrome, seek to obtain summer services that would be designed and implemented by special education staff specifically for the purpose of addressing his social and behavioral deficits, while Foxborough proposes that Student attend only the generic summer program made available to all of its students.
Second, Parents seek to obtain, at Foxborough’s expense, an independent evaluation that includes a functional behavioral assessment and social skills assessment. Parents ask that they be allowed to obtain this evaluation without the limitations imposed by the number of hours and rates prescribed by the Massachusetts Division of Health Care Finance and Policy.
ISSUES
The issues to be decided in this case are the following:
1. Is Student entitled to extended school year services for the summer of 2006?
2. If so, has Foxborough proposed appropriate services for this purpose?
3. If not, what services should be provided?
4. Are Parents entitled to receive independent evaluations not limited by rates set by the Massachusetts Division of Health Care Finance and Policy?
FACTS
The following facts pertain to Student’s profile and special education services :
Student is a seven-year-old boy (DOB 2/1/99) who lives with his Parents in Foxborough. Student attends 1 st grade at the Foxborough Regional Charter School (Foxborough). Pursuant to his current Individualized Education Program (IEP), student is in a mainstream classroom which includes occupational therapy and communication services, each provided for 50 minutes, once per week. In addition, he receives pull-out services of occupational therapy for 30 minutes, twice per week. Additional consultation services are provided from an occupational therapist and speech language pathologist for 15 minutes each, once per week. Testimony of Parent; exhibits S-2, P-3.
Student has many strengths. He is very intelligent, and his academic performance is above grade level in arithmetic and reading. Student is also very social, wanting to be a friend to anyone, and is generally a happy boy who enjoys learning. Testimony of Parent; exhibits S-2, P-3.
Despite Student’s strengths, he demonstrates significant impairments in the areas of communication, social skills and behavioral skills. More specifically, Student has shown an atypical pattern of development in the areas of socialization, pragmatic language, nonverbal communication, play skills and behavior. He has pervasive impairment with respect to social reciprocal behaviors and communication. Student’s functioning is also significantly impacted by “self-regulatory deficits”, which include difficulty with impulse control, attention to task and hyperactivity. Testimony of Plummer; exhibits P-12, P-13, P-14.
Student meets the criteria for Asperger’s syndrome, which is a disability on the Autism spectrum. Foxborough’s consultant (Dr. Plummer) explained that if one were to look at the Autism spectrum in general, with a scale of 1 being the most severe (requiring an institutional setting) and 10 being the least severe (the student not being distinguishable from his peers in a classroom setting), Student would likely be at level 8. Testimony of Plummer; exhibits P-12, P-13, P-14.
The following facts pertain to the issue of summer services :
During the 2004-2005 school year, Student attended kindergarten at Foxborough. The IEP for that year included services similar to the current school year (discussed above), except that the IEP also included a behavior/social goal that was addressed through counseling by the school psychologist for 30 minutes, once per week, outside of the classroom.
The 2004-2005 IEP also included extended year services, described as a five-week program that included three parts:
· Camp Invention, which is a hands-on summer program that focuses on science, 9:00 AM to 2:30 PM daily from July 11 to July 18, 2005;
· a camp that addresses remedial reading, 9:00 AM to noon each day, Monday through Thursday, from July 18 to August 18, 2005; and
· a social skills group that was originally intended to occur for one hour per week for 8 weeks, but was actually provided for one hour per week for 6 weeks. This third part of the summer services is referred to within an attached description of Student’s summer services.
Parents fully accepted this IEP. Testimony of Parent; exhibits S-1, P-1, P-2, P-38.
With respect to Student’s social skills group during the summer of 2005, Student was observed by a Foxborough consultant (Andrew Margolin, Ph.D.) on four occasions. Dr. Margolin reported generally that Student did well in this program and appeared to enjoy himself, but also noted that Student expressed that he did not like school and that at times, he was very flexible while at other times he became rigid and inflexible. In September 2005, Dr. Margolin wrote in his report regarding his observations that Student would continue to benefit from participating in a socialization group and that emphasis should be on increasing flexibility, improving reciprocal conversation skills, staying on task and improving cooperative playing skills. Exhibits S-8, S-9, P-15.
Parent reported that Student had a very difficult time with the two camp portions of the summer program. She noted that, by all accounts, Student loved school during his kindergarten year. However, after beginning the summer program, Student’s anxiety level increased and he began to ask to stay home, and by July 28, 2005, Student was in a “negative mind-set” regarding school. However, Student’s teacher for the camp portions of the summer program (Ms. Adams) testified that Student had an excellent camp experience, doing well academically, socially and behaviorally. Ms. Adams also noted that Student’s social deficits did not interfere with his ability to learn. Testimony of Parent, Adams.
When Student returned to school in the fall of 2005 for 1 st grade, he continued on the IEP from the previous year. Student’s 1 st grade homeroom teacher and other staff working with him did not notice any unusual regression from the summer vacation or any inordinate adjustment difficulties as a result of entering a new grade. They also did not notice any particular anxiety on the part of Student. Student’s homeroom teacher (Ms. Adams), who was also Student’s teacher during the camp portions of the summer program, testified that Student did not appear to be any different during the beginning of the year than he had been during the summer with respect to his academics, social skills and behavior. She testified that, in general, Student’s deficits do not negatively impact him academically, behaviorally or socially within the classroom context. Testimony of Southworth, Adams; exhibits S-1, P-1, P-2.
Parent, on the other hand, noted that by the third day of school, her son was crying and asking to stay home. She observed that her son continued to complain about school intermittently, and that in general she noticed that her son had a high degree of anxiety about school. Parent further testified that, as compared to kindergarten where Student’s behavior was appropriate from the time that a 1:1 aide was assigned to him, Student began having behavior difficulties after he returned to school in the fall of 2005. Some of these incidents appear to be relatively minor, resulting in a “card change” from green to yellow (signaling to the Student that he should be cautious), while other behaviors resulted in removal of Student to an alternative classroom. Parent noted twenty-one incidents of inappropriate behavior from September 7, 2005 to January 6, 2006, including a suspension from school in December 2005. Testimony of Parent; exhibits P-26, P-58.
Although some of these behavior difficulties during the fall and early winter of 1 st grade occurred within the classroom, all or nearly all of the more serious incidents happened during unstructured time such as in the hallway or on the bus. The 1 st grade teacher reported that Student’s behavior within her classroom was appropriate for the 1 st grade, that his behavior was no worse than the average, non-disabled student in her classroom and was better than the behavior of some of her students. Testimony of Parent, Adams; exhibits P-26, P-58.
It is not disputed that notwithstanding his social, emotional and behavioral difficulties, throughout this period of time and continuing through the school year, Student has continued to do well in school academically. Testimony of Parent, Adams.
The IEP under which Student began 1 st grade expired on September 29, 2005. In October 2005, the IEP Team met twice for the purpose of developing a new IEP for the remainder of 1 st grade and the summer of 2006. As noted above, the services within this new IEP were similar to those in kindergarten with the exception of the social/behavior goal and counseling services intended to address this goal. However, under “additional information” within the IEP, counseling was added through a social skills group (“The Lunch Bunch”) for 30 minutes, once per week as well as “Individual Counseling as needed”. Parent accepted the majority of the IEP and rejected the dropping of the social/behavioral goal from the IEP. Testimony of Fain, Parent; exhibits S-2, P-3.
The new IEP for 1 st grade continued to provide for extended year services for Student. The description of the extended year services was identical to that description contained within the previous year’s IEP, including the 2005 dates from the previous IEP – that is, Camp Invention from July 11 to July 18, 2005, and a second program from July 18 to August 18, 2005. However, the new 1 st grade IEP did not include the social skills group that had been provided for 6 weeks during the summer of 2005. Exhibits S-2, P-3.
The IEP Team met twice in October 2005 to consider and decide the content of the new 1 st grade IEP, but during these meetings, the Team did not discuss summer services. There was no discussion, for example, of whether Student would require summer services for 2006 and if so, what those services should be. Parents accepted the part of the IEP that reflects Student’s need for summer services but rejected the particular summer services that were proposed. Testimony of Fain, Parent; exhibits S-2, P-3.
Foxborough’s Director of Special Education (Ms. Fain) testified that Foxborough’s position was that since Student had been successful with the services provided in the summer of 2005, these same services should continue in the summer of 2006. Ms. Fain further explained that with respect to addressing Student’s social skills deficits, there was no justification for providing services beyond the “lunch bunch” social group, currently being provided pursuant to Student’s IEP. Testimony of Fain.
There apparently were informal discussions among Foxborough staff during subsequent months of this academic year grade regarding Student’s need for services for the summer of 2006 and what those services should be. However, these discussions did not include Parents. Testimony of Fain.
The lack of resolution of the summer services for 2006 was noted in one or more meetings with Parent and Dr. Plummer as recently as March 2006. However, the first (and apparently the only) time that the topic of what services would be provided for the summer of 2006 was formally addressed by Foxborough with Parent was during the resolution session that followed the filing with the BSEA of Parents’ Hearing Request seeking alternative summer services. Testimony of Fain, Plummer, Parent.
The services that were provided during the summer of 2005 and that were proposed by Foxborough to be continued for the summer of 2006 are not special education services or related services and are not intended to be provided by special education staff. Instead, these services are generic summer services that are available to all students attending Foxborough. The first part of the summer services proposed by Foxborough (Camp Invention) is a hands-on science program and the second part of the summer services provides remedial academics with respect to reading. These summer services would provide opportunities for social interactions but would not provide explicit instruction regarding social or behavioral skill development. Testimony of Fain, Southworth, Parent.
The following facts pertain to the issue of the independent evaluation :
In March 2005, Parents requested that Foxborough conduct evaluations of Student with respect to social skills, pragmatic language skills and functional behavioral assessment. Foxborough performed these evaluations, which were presented and considered at an IEP Team meeting on June 22, 2005. Testimony of Parent; exhibits P-20, P-21, P-22.
On August 22, 2005, Parents requested independent educational evaluations with respect to these same three areas. On September 16, 2005, Parents renewed their request, and on the same day, Foxborough’s Director of Special Education (Ms. Fain) responded, apparently for the first time, that Foxborough was not obligated to fund these evaluations. By letter from Foxborough’s attorney dated December 6, 2005, Foxborough notified Parents that their requests were denied and that Foxborough had advised Parents on October 12, 2005 of this fact and that Foxborough was proceeding to a BSEA Hearing on this matter. Testimony of Parent; exhibits P-28, P-29, P-30, P-31.
While this matter was pending before the BSEA, Parents began to look for evaluators who were knowledgeable regarding Asperger’s syndrome and who would accept the Massachusetts rates for evaluations. Parents inquired with the Family Autism Center, Asperger’s Association of New England, Community Autism Resources, Masspac (a listserv providing information and support families in Massachusetts), Federation for Children with Special Needs, Massachusetts Advocates for Children, and Friends and Families of Autistic Spectrum Disorders Support Group. Parents asked for referrals to providers who would accept the state rates, and they called many providers. Every provider reported to Parents that they would not accept state rates for school-based evaluations with respect to a social skills assessment and functional behavioral assessment. Testimony of Parent; exhibit P-57.
During this time, Parents also twice asked Foxborough to provide a list of evaluators who met its criteria. Parents received no response. Testimony of Parent.
By letter of January 20, 2006 to the BSEA Hearing Officer, Foxborough indicated that it would provide the requested evaluations and withdrew the Hearing Request that it had filed relative to this issue. Exhibit P-33.1
DISCUSSION
A. Extended Year Services
1. Introduction .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act2 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.
The principal issue presented is whether the programming and specialized services embodied in Foxborough’s currently proposed IEP with respect to extended year (i.e., summer) services are consistent with Foxborough’s obligations under state and federal special education law to provide Student with FAPE . Parents have the burden of persuading me that the IEP does not meet this standard.5
The Massachusetts special education regulations utilize a regression and/or difficulty relearning standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.6
The federal special education regulations employ a broader standard that is framed in terms of a school district’s responsibility to provide each student with FAPE. The regulations provide, in relevant part:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.340-300.350, that the services are necessary for the provision of FAPE to the child.7
The court decisions interpreting the federal regulatory standard have used language similar to but sometimes broader than the Massachusetts regression standard.8 I am unaware of any relevant First Circuit case law.
2. Eligibility for extended year services .
I first consider Student’s eligibility for extended year services. Foxborough takes the position that Student is not eligible to receive extended year services under the current IEP. Parents disagree. Both parties have provided substantial evidence and argument in support of their positions.
I need not resolve this aspect of the dispute by determining whether Student satisfies one or both of the above-quoted regulatory standards regarding entitlement to extended year services.
This is because Foxborough’s most recently-proposed IEP (developed by the IEP Team in October 2005for the period 10/24/05 to 10/23/06) includes extended year services for the summer of 2006. Parents accepted this part of the IEP, although they rejected the description of the content of those services. Subsequent to the development of this IEP, Foxborough has not had an IEP Team meeting in which it determined that Student is no longer eligible for extended year services.9
The accepted parts of the IEP govern Foxborough’s obligations to Student regarding special education and related services for the summer of 2006. Foxborough cannot somehow avoid these obligations by now taking the position that Student is actually not eligible to receive those services.
For this reason, I find that Student is eligible to receive extended year services for the summer of 2006.
3. Student’s social skills and behavior deficits .
Before considering the question of what extended year services must be provided to Student pursuant to the current IEP, I consider Student’s social skills and behavior deficits. I do so because a principal question that underlies the summer services debate is the nature of Student’s social and behavior deficits, the implications of those deficits on Student’s learning and how those deficits should be addressed.
Parents have taken the position that Student requires extended year services to address his social and behavior deficits. Foxborough disagrees, arguing that Student functions well within the 1 st grade and that any social or behavior deficits do not impact negatively on his learning.
I note, at the outset, that the First Circuit has made clear that a school district’s IEP must address all of a students special education needs, whether they be academic, physical, emotional or social.10 State and federal special education regulations further support this view.11 I also note a recent federal District Court’s decision, which concluded that because a student’s Asperger’s disorder adversely affected her ability to communicate and relate socially, she was entitled to special education services even though she excelled academically.12 The First Circuit and other federal circuit courts have also explained the need to address behavior deficits unless these deficits are determined to be separable from the learning process.13
As will be made clear below, any discussion of Student’s special education needs must include an understanding of his social and behavior deficits, and how those deficits and needs should be addressed through the IEP. In my analysis of these issues, I consider Parent’s written evaluation reports and the written report of Dr. Margolin, but give particular weight to the testimony and reports of Foxborough’s consultant (Dr. Plummer).14
Student’s social and behavior deficits and the importance of addressing them through summer services have been documented over the years in a variety of evaluation reports written by experts engaged by Parents. For example, a February 2006 neurodevelopmental evaluation by Karen Miller, MD, concluded that Student continues to have “significant impairment” regarding social skills, that social skills and pragmatic skills need to be incorporated into his educational program and that “social deficits will interfere with his educational progress especially when collaborative tasks are needed.” Previous evaluations echo these concerns. Exhibits P-12, P-13, P-14.
Dr. Miller also found that Student’s functioning is significantly impacted by “self-regulatory deficits including difficulty with impulse control, attention to task and hyperactivity”. His “inability to inhibit thoughts and actions interferes with his ability to make good choices and makes him over-reliant on constant external structure.” “Behavior management and environmental structure will be needed” to address these deficits. Previous evaluations reflect similar concerns. Exhibits P-12, P-13, P-14.
Dr. Miller recommended that Student receive summer services to address his social deficits, noting that Student “should continue to receive direct instruction in social pragmatics and social skills to prevent regression.” Similarly, a neuropsychological evaluation in March 2005 recommended that Student receive summer services in the form of a structured classroom setting and continued social skills training under the supervision of qualified special education personnel in order to avoid regression. Exhibits P-12, P-13.
A consultant engaged by Foxborough (Dr. Margolin) wrote in a report regarding his observations of Student’s social skills group during the summer of 2005 that Student would continue to benefit from participating in a socialization group and that emphasis should be on increasing flexibility, improving reciprocal conversation skills, staying on task and improving cooperative playing skills. Exhibits S-8, S-9, P-15.
Currently, an important element of Student’s school day is structuring his involvement, providing clear guidelines and setting routines in order to assist Student to manage his behavior deficits. It is also necessary, at times, for teachers or staff to provide Student with direct assistance or instruction to address Student’s behavior and social deficits. When Student runs into a difficulty regarding his social or behavior skills, he requires someone to help him by breaking the situation down for him so that he understands what should be done. Testimony of Plummer; exhibits S-22, P-9.
During the first half of 1 st grade, Student was having significant social and behavior difficulties in school that were unaddressed by Foxborough, except through the disciplinary procedures that are applied to regular education students. Parent, in her testimony, recounted the significant behavioral and emotional difficulties encountered by Student at this time.
Dr. Plummer’s testimony and memo of 4/24/06 were persuasive that Student’s difficulties during the first half of 1 st grade did not likely indicate regression from the summer but rather reflected the inability of Student to successfully navigate the increased demands of 1 st grade without the additional supports, structure and instruction provided by Foxborough with Dr. Plummer’s guidance and consultation. Exhibits S-23, P-47.15
Dr. Plummer’s consultation and assistance, which began in January 2006, assisted Foxborough teachers and staff to provide the structure and supports necessary for Student to meet the increased social and behavioral demands of 1 st grade. Through Dr. Plummer’s consultation and assistance, and the work of other Foxborough staff, Student has become successful regarding his behaviors and social skills in his homeroom classroom so that he is now able to handle the social demands of 1 st grade without difficulty. Testimony of Plummer; exhibits S-22, S-23, P-9, 47.
Where the classroom or other school environment is somewhat chaotic, with mixed cues as to what is expected and competing information without clear guidelines, Student’s conduct and social skills continue to be inadequate or inappropriate, and Student has significant difficulties functioning at an appropriate level. These difficulties tend to occur in classrooms (for example, music) that are less structured, as well as during recess and transition times when Student is in the hallways.
The extent of Student’s weaknesses in these contexts was evident when Dr. Plummer observed Student in music class on March 2, 2006. Dr. Plummer noted in his written report that in this less structured classroom:
[Student] has trouble regulating his behavior. . . . He presents as impulsive, over stimulated, and over active. His voice is loud, he shouts rather than waiting his turn, he is under responsive to direction, he runs around, talks when he is supposed to be listening, bumps into students sitting next to him, laughs and acts silly at inappropriate times.
Exhibits S-22, P-9.
Dr. Plummer has written, as recently as April 24, 2006, that Student “needs to make further gains towards greater independence in less structured situations . . . .” To date, Foxborough’s strategy (with Dr. Plummer’s assistance) has been to try to add structure to the less structured school contexts in order to allow Student to function more appropriately. Student needs direct instruction regarding appropriate social and behavior skills in less structured settings. Student’s deficits in these contexts, which reflect Student’s disability (Asperger’s syndrome), cannot be expected to ameliorate themselves through trial and error or through his observation of others. In other words, what has been done so far by Foxborough to add structure to the less structured settings is useful but ultimately not sufficient. Testimony of Plummer; exhibits S-23, P-12, P-13, P-47.
Notwithstanding the perspective and opinions of Parents’ experts as well as its own consultants (Dr. Plummer and Dr. Margolin) regarding Student’s social and behavioral deficits, and notwithstanding the excellent work by Foxborough to address these deficits over the past few months with Dr. Plummer’s consultation and assistance, Foxborough has sought to minimize and, at times, even to ignore Student’s social skills and behavior deficits when developing Student’s IEP and otherwise planning Student’s services.
For example, Foxborough’s current IEP for Student, which covers most of 1 st grade and the first part of 2 nd grade, includes no provision for consultation from Dr. Plummer (or a similarly knowledgeable person), nor does the IEP recognize the need to provide the kinds of structures and supports that Dr. Plummer has helped staff put in place for Student, which have been necessary to address his social and behavioral deficits in 1 st grade. Similarly, there is no provision for consultation for necessary supports and structure or for transitional planning with respect to the demands and expectations that may be placed upon Student when he enters the 2 nd grade.
Foxborough’s IEP for Student for kindergarten included only a single social/behavior goal. Then, in October 2005, Foxborough removed this single social/behavior goal (over Parents’ objections) from Student’s IEP for 1 st grade.
Foxborough has sought to eliminate from Student’s IEP the one part of Student’s 2006 summer program intended to address his social skills deficits – that is, a social skills group.
The IEP does provide for a social skills group entitled “Lunch Bunch” for 30 minutes, once per week. This is included within “Additional Information” in the IEP. It is unclear the extent to which Student receives any direct instruction within this group. The services are unrelated to any goals and objectives within the IEP. The services are described by the IEP as intended to address a need for “counseling”. Exhibits S-2, P-3.16
Foxborough’s Director of Special Education (Ms. Fain) testified that Foxborough’s position was that, with respect to addressing Student’s social skills deficits, there was no justification for providing services beyond the “lunch bunch” social group. With all due respect to Foxborough’s understanding of Student’s special education needs, I find little persuasive support for this position.
4. Foxborough’s proposed summer services for Student .
The summer services proposed by Foxborough within its IEP for Student are a hands-on science program called Camp Invention, followed by a camp that provides remedial instruction in the area of reading. These camp programs are taught by regular education teachers and staff without the assistance of special educators. The two programs, taken together, are for six weeks. Testimony of Parent, Fain, Southworth; exhibits S-2, P-3.
These summer services, although appearing in Student’s IEP, were not developed or proposed by an IEP Team. Instead, Foxborough unilaterally made a decision to propose these summer services for Student and include them in Student’s IEP. As will be explained in more detail below, by determining Student’s special education summer services in a manner that precluded any meaningful input by Parents into the determination of what those services should be, Foxborough violated Parents’ procedural rights.
A central requirement under the IDEA is that a school district must convene a Team meeting or meetings for the purpose of developing all substantive aspects of the IEP, so that parents are provided an opportunity to participate as equal partners in the IEP formulation process. This principle is crystal clear within federal regulations, guidelines and court decisions.
The U.S. Department of Education (DOE) regulations explicitly require that the IEP be developed “in a meeting” in which the parents have the opportunity to participate.17 DOE provides further guidance in its interpretation of its regulations regarding the central role of parents in the IEP formulation process:
The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents . . . join with the other participants in deciding . . . what services the agency will provide to the child and in what setting .18
The courts have similarly described the importance of the IEP, as well as the need for parents to have the opportunity to participate in its development. For example, the United States Supreme Court has stated that the “IEP is the primary safeguard” in order to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”19
IDEA 2004, which became effective on July 1, 2005, for the first time made explicit when violation of parents’ procedural protections may be considered to be a denial of FAPE. The federal statute provides, in relevant part:
Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education [FAPE] only if the procedural inadequacies– (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child ; or (III) caused a deprivation of educational benefits.20
It is not disputed that Parents were denied the opportunity to participate in the development of that portion of the current IEP relevant to extended year services. This subject matter was simply not addressed during any Team meeting. The IEP was developed in meetings in October 2005. As recently as March 2006 it was noted in a meeting with Foxborough staff, Dr. Plummer and Parent that the question of summer services remained unresolved. It was not until the April 26, 2006 informal resolution meeting that Foxborough sat down with Parents to discuss this matter for the first time. Testimony of Parent, Fain.
The informal resolution meeting is mandated under the IDEA to ensure that the parties have an opportunity to discuss informally and seek to resolve a dispute prior to the evidentiary Hearing taking place.21 Although certain Team members “ who have specific knowledge of the facts identified in the [ Hearing Request ]” are required to be present during the informal resolution session, IDEA 2004 makes clear that the informal resolution session is not intended to be nor may it take the place of an IEP Team meeting.22
I find that Foxborough’s determination of the content of extended year services outside of the context of a Team meeting significantly impeded Parents’ opportunity to participate in the decision-making process regarding these services, and was a denial of FAPE.
In addition, there can be little doubt that the extended year services proposed by Foxborough within its IEP do not address in any meaningful way Student’s special education needs and are not appropriate for Student. It is not disputed that Student is very bright and is doing well academically in school. For example, in 1 st grade, his reading comprehension was at the 3 rd grade level. There is no evidence to support the need for academic services during the summer, and Foxborough does not argue to the contrary. Yet, the summer services proposed for Student are academic in nature – a hands-on science camp and then a remedial program to address reading deficits. These proposed summer services are simply not responsive to Student’s deficits.23
To summarize the analysis thus far, (1) Foxborough has, through its proposed IEP, agreed that Student is entitled to receive extended year services; (2) Student has significant and continuing unmet special education needs with respect to his social skills and behavior deficits; (3) Foxborough has denied Student FAPE by excluding Parents from its decision-making process regarding the content of its proposed extended year services; (4) Foxborough has proposed summer services for 2006 that are inappropriate for and unresponsive to Student’s special education needs.
It is in this context that I now turn to a consideration of what summer services should be provided Student and how those services should address Student’s special education needs.
5. Extended year services to be provided during the summer of 2006 .
The goal of Student’s services for the summer of 2006 should be to improve Student’s social (and related behavior) skills in settings that are less structured than, for example, his homeroom during 1 st grade. As discussed in greater detail above, improvement of Student’s social and behavioral skills in relatively unstructured settings is important in and of itself – for example, to appropriately participate and learn in less structured settings such as music class. In addition, when things do not go well in a relatively unstructured setting, the difficulties may spill over into other, more structured educational settings, thereby further impacting Student’s learning. Testimony of Plummer.
The evidence indicates that Student would benefit from summer services that would provide him with relatively structured play situations where the central focus is playing games with peers. While Student is playing, a number of skills can be taught for the purpose of helping him to address his deficits regarding spontaneous social interactions and play. Foxborough has yet to address Student’s deficits in these areas. The summer provides an opportunity to work on these areas of need, as compared to the school day where there are few such opportunities. Testimony of Plummer.
There is now a unique window of opportunity to help Student learn to address issues regarding social skills and behavior during his elementary school years. Testimony of Plummer.
For these reasons, I conclude that Foxborough must provide Student with a summer program to address his social (and related) behavior needs. The summer program must run for at least 6 weeks, for at least 4 days per week and for at least 2 hours per day.24 The summer program must include staff or teachers who have specialized knowledge and expertise regarding children with autism. Foxborough shall be responsible for transportation of Student to and from the summer program.
Parents have proposed three possible summer programs for the purpose of addressing Student’s social skills deficits. Exhibits P-39, P-40, P-41. Although Parents have provided written information supplied by each program and have testified briefly regarding each program, I conclude that insufficient evidence has been presented for me to determine the appropriateness of any of these proposed programs. I also note that Dr. Plummer cautioned that Student should not be matched with other children who are significantly below him with respect to social skills. No information was provided regarding Parents’ proposed summer programs that would allow me to assess this concern.
Foxborough shall proceed immediately to identify, with continuing input from Parents, an appropriate summer program that is consistent with this Decision, and secure a spot for Student. Parents have a legitimate concern that any delay at this time may result in Foxborough’s not being able to find an appropriate program with an opening for Student. The parties are encouraged, but not required, to utilize the advice of Dr. Plummer in considering and choosing an appropriate summer program for Student, particularly if the parties are unable, on their own, to agree on an appropriate program for Student.
B. Payment for Independent Educational Evaluations
Parents seek payment by Foxborough of independent educational evaluations in two areas: a social skills assessment and a functional behavioral assessment. Parents seek an order from the BSEA that Foxborough must pay for these evaluations, and must do so at rates in excess of what is established by the Massachusetts Division of Health Care Finance and Policy for this purpose.
The uncontested facts, as summarized in the “Facts” section (above) of this Decision, make clear that Parents have appropriately requested independent evaluations in two areas. Foxborough has significantly delayed Parents’ opportunity to obtain these evaluations, ultimately leaving Parents no option but to seek relief from the BSEA, which Parents have appropriately done through their Hearing Request in the instant dispute.
Although Foxborough, through its attorney, argues to the contrary, there is little doubt that Parents are entitled to receive independent evaluations, at public expense, in the two requested areas.
Both state and federal special education regulations address the issue of independent educational evaluations. The federal regulations provide a parent with certain rights to obtain an independent educational evaluation at “public expense”. The phrase “public expense” means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 34 CFR §300.301.25
Massachusetts special education regulations provide further standards, above the federal minimum standards, as to when parents may obtain an independent educational evaluation at public expense:
If the student is eligible for free or reduced cost lunch or is in the custody of a state agency with an Educational Surrogate Parent appointed in accordance with federal law, then the school district shall provide, at full public expense, an independent education evaluation that is equivalent to the types of assessments done by the school district. No additional documentation of family financial status is required from the parent.26
It is not disputed that Student is eligible for reduced cost lunch, and Parents are therefore entitled to the requested evaluations “at full public expense”. Exhibit P-27.
Massachusetts special education regulations provide further standards regarding the persons who may conduct said evaluations, including a provision for utilizing a rate higher than the state rates in certain “unique circumstances”:
All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates. Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.27
The uncontested facts (as summarized above in the “Facts” section of this Decision) demonstrate that Parents have made all reasonable efforts to locate a qualified person who would abide by the state rates. In addition, Parents have sought the assistance of Foxborough on two occasions to provide the names of one or more qualified evaluators who would abide by these rates. Foxborough has been unresponsive to Parents’ request.28
It would be unreasonable for Parents to do anything more than they have done. I find that Parents have made out a prima facie case that assessments at higher than normal rates are necessary in order for the independent evaluations are to be carried out.
Foxborough has made no apparent attempt to rebut Parents’ prima facie case. Foxborough has provided no evidence that would support the proposition that evaluators may be identified or are otherwise available to perform the two evaluations pursuant to the rates set by Massachusetts Division of Health Care Finance and Policy. In its oral opening and written closing arguments, Foxborough makes no claim that evaluators are available who would accept the state rates. Foxborough does not seek any additional time or other opportunity to identify such evaluators.
In this situation, to preclude Parents the opportunity to utilize higher rates would, in effect, deny them rights established by Massachusetts and federal special education regulations to obtain independent education evaluations at public expense. I therefore find that under the particular factual circumstances of this case, an exemption to the Massachusetts rates is justified.
I conclude that Parents may proceed to obtain the independent education evaluations and Foxborough must pay for the two evaluations, without the evaluators being required to abide by the Massachusetts rates with respect to hourly rates or number of hours.
ORDER
As more fully explained within part A5 of this Decision, Foxborough shall immediately locate or create a summer program that would appropriately address Student’s social skills and related behavior deficits. Foxborough shall be responsible for transportation of Student to and from the summer program.
Foxborough shall expeditiously provide, at public expense, independent education evaluations for the purpose of a social skills assessment and a functional behavioral assessment, without the evaluator(s) being required to abide by the Massachusetts rates with respect to hourly rate or number of hours.
By the Hearing Officer,
William Crane
Dated: May 30, 2006
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
Subsequent to the withdrawal, the Hearing Officer (apparently at Foxborough’s request) issued a clarifying order. Exhibit S-24. Withdrawal of the Hearing Request by Foxborough as the moving party would have automatically closed the case before the BSEA. For purposes of the instant dispute, I do not consider the clarifying order to be relevant since it was issued after closure of the previous dispute and prior to the filing of the present dispute.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
5
Schaffer v. Weast ,126 S. Ct. 528, 163 L. Ed. 2d 387, 2005 U.S. LEXIS 8554, 74 U.S.L.W. 4009 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
6
603 CMR 28.05(4)(d)1.
7
34 CFR 300.309.
8
Some courts have interpreted the federal regulatory standard to mean that summer services are appropriate when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if the student is not provided with an educational program during the summer months. Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4 , 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ . , 790 F.2d 1153, 1158 (5th Cir. 1986). Other courts have explained that a student is entitled to summer services when it is shown that the student will suffer some significant loss of skills or knowledge without a summer program, followed by an insufficient recoupment of these skills or knowledge during the next school year. Cordrey v. Euckert , 917 F.2d 1460, 1474 (6th Cir. 1990); McQueen v. Colorado Springs School District No. 11 , 2006 U.S. Dist. Lexis 13312 (D.Co. 2006). Some courts have also warned against “converting what should be a multifaceted inquiry into application of a single, inflexible criterion.” Johnson v. Indep. Sch. Dist. No. 4 , 921 F.2d 1022, 1031 (10th Cir. 1990) ; Reusch v. Fountain , 872 F.Supp. 1421 (D.M.D. 1994) (quoting Johnson ). See also Cordrey v. Euckert , 917 F.2d 1460, 1472 (6th Cir. 1990) ; Polk v. Central Susquehanna Intermediate Unit 16 , 853 F.2d 171, 184 (3d Cir. 1988); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ ., 790 F.2d 1153, 1158 (5th Cir. 1986).
9
Foxborough argues that the April 26, 2006 informal resolution meeting was an IEP Team meeting. It was not. The informal resolution meeting is mandated under the IDEA to ensure that the parties have an opportunity to discuss informally and seek to resolve a dispute prior to administrative evidentiary hearing taking place. The informal resolution meeting does not take the place of an IEP Team meeting. Compare 20 USC 1414(b)(4)(A) governing IEP meetings with 20 USC 1415(f)(1)(B) governing resolution meetings. In any event, the Foxborough Director of Special Education (Ms. Fain) testified, and I so find, that there was no determination during the informal resolution meeting that Student was no longer eligible to receive extended year services.
10
E.g., Lenn v. Portland School Committee , 998 F.2d 1083, 1089-1090 (1st Cir. 1993):
[An IEP] must target “all of a child’s special needs,” Burlington, 736 F.2d at 788 (emphasis supplied), whether they be academic, physical, emotional, or social. See Roland M., 910 F.2d at 992 (explaining that “purely academic progress . . . is not the only indici[um] of educational benefit”); Timothy W. v. Rochester, N. H. Sch. Dist., 875 F.2d 954, 970 (1st Cir.) (observing that “education” under the Act is broadly defined), cert. denied, 493 U.S. 983, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989); U.S. Dep’t of Educ., Notice of Policy Guidance, 57 Fed. Reg. 49,274 at 49,275 (1992) (stating that an IEP must address “the full range of the child’s needs”). . . . In the last analysis, what matters is not whether the district judge makes a series of segregable findings, but whether the judge is cognizant of all the child’s special needs and considers the IEP’s offerings as a unitary whole, taking those special needs into proper account.
See also Zayas v. Commonwealth of Puerto Rico, 2005 U.S. App. LEXIS 28323, (1 st Cir. 2005) (student may have the right, under the IDEA, to “receive an education that is tailored to her social, psychological, and educational needs”).
11
34 CFR 300.300(a)(3)(i) (special education services must “address all of the child’s identified special education and related services needs . . . .”); 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 . . .”). Cf. 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
12
Mr. and Mrs. I, v. Maine School Administrative District 55 , 416 F. Supp. 2d 147 (D.Me. 2006).
13
E.g., CJN v. Minneapolis Public Schools , 323 F.3d 630. 642 (8th Cir. 2003) (“student’s IEP must be responsive to the student’s specific disabilities, whether academic or behavioral”); Indep. Sch. Dist. No. 284, Wayzata Area School v. AC , 258 F.3d 769 (8th Cir. 2001) (student’s behavior problems are not separable from the student’s learning process); Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1st Cir. 2001) (“question is whether these behavioral disturbances interfere[ ] with the child’s ability to learn”).
14
Dr. Plummer has extensive experience and expertise regarding children with Student’s profile. Dr. Plummer received his master’s degree in school psychology in 1982, and his PhD in 1983, followed by one year of post-doctoral work. Over the past 14 years, he has worked with approximately 160 children diagnosed with deficits on the autism spectrum, including Asperger’s syndrome. Dr. Plummer began consulting to Foxborough regarding Student in the fall of 2004 when Student was in kindergarten. Although Dr. Plummer did not consult to Foxborough regarding Student during the beginning of the next academic year, Foxborough sought and obtained Dr. Plummer’s assistance with Student in January 2006 – that is, half-way through 1 st grade. At that time, Dr. Plummer reviewed all relevant evaluations, consulted with Foxborough staff and Parents, and observed Student. Dr. Plummer advised Foxborough staff as to how to work with and provide support for Student regarding his social and behavior needs. He was the only witness who has both expertise regarding Student’s deficits and current knowledge of Student and his learning environment. I found his written reports regarding Student, as well as his testimony in this case, to be careful, candid and well-informed. For these reasons, I have relied on Dr. Plummer’s testimony and reports, in particular, when seeking to understand Student’s social and behavior deficits and how they should be met.
15
These exhibits are a memo dated 4/24/06 from Dr. Plummer to Ms. Fain responding to a question asked by Ms. Fain. Dr. Plummer’s memo explains that, based upon staff reports of Student’s abilities following the December and April school vacations, Student would not likely require any additional time (compared to other students) to return to his previous level of functioning after a summer vacation.
16
I also note that, although not proposed by Foxborough for the purpose of addressing social skills issues, Foxborough has also included within the current IEP communication services from a speech language pathologist for 50 minutes, once per week to address pragmatics during physical education. It appears that these services provide benefit to Student regarding his social skills deficits. Testimony of Southworth; exhibits S-2, P-3.
17
34 CFR 300.340, 300.345.
18
48 Fed. Reg. 12473 (first column) (March 12, 1999) (emphasis supplied).
19
Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1987). S ee also Burlington School Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1984); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993).
20
20 USCS § 1415 (f)(3)(E)(ii) (emphasis supplied).
21
20 USC 1415(f)(1)(B).
22
Compare 20 USC 1414(b)(4)(A) governing IEP meetings with 20 USC 1415(f)(1)(B) governing resolution meetings.
23
Foxborough argues that its proposed camp services would provide a meaningful social group for Student. However, as has been made clear in other parts of this Decision, in order to make gains in this area, Student requires explicit instruction from persons with appropriate special education experience and expertise.
24
Foxborough proposed a summer program for Student for 6 weeks, 5 days per week for the first part and 4 days per week for the second part. It seems reasonable to mandate a comparable duration. Also, Parents have proposed summer programs that meet for 2 or more hours each day. This appears to be a minimal amount of time for an appropriate program.
25
34 CFR 300.502(3).
26
603 CMR 28.04(5)(c)1 (emphasis supplied).
27
603 CMR 28.04(5)(a). See also Massachusetts Division of Health Care Finance and Policy regulations 114.3CMR 30.00, which govern the rates of payment “by governmental units for TEAM Evaluation Services, as mandated by MGL c.71B and 603CMR 28.00 . . . .” These regulations can be found at the website of the Massachusetts Division of Health Care Finance and Policy.
28
Federal special education regulations require that Foxborough provide Parents, upon Parents’ request for an independent educational evaluation, “information about where an independent educational evaluation may be obtained”. 34 CFR 300.502(2). Foxborough appears to have failed to comply with this requirement.