COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Gill-Montague Regional School District
BSEA# 02-4203
DECISION
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on July 30, 2002 at the Catuogno Court Reporting Offices in Worcester, MA.
Those in attendance were:
Richard Weber Director of Special Education, Gill-Montague
Regional School District
Robert Mahler Principal, Gill Elementary School
John Hampel Psychologist/Behavioral Analyst and Consultant, May Institute
Peter Smith Attorney, Gill-Montague Regional School District
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Gill-Montague Regional School District’s Exhibits labeled S-1 through S-35; and approximately 41/2 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Student is a 13 year old boy diagnosed with Down Syndrome. He has been placed primarily in regular education inclusion classrooms and has attended the Gill Elementary School(GES) during his entire educational career (S-1; testimony Mahler). Student’s last accepted Individual Education Plan (IEP) covered the period from 5/00 to 11/00 (S-6). The two subsequent IEPs remained unsigned by Parents (S-5, 4). Therefore, Student has continued to function under his 5/00 to 11/00 IEP as his last accepted/agreed upon placement (LAP) up to the present time (testimony, Mahler; Weber). Since May 2001 there have been 5-6 team meetings as well as other meetings in an attempt to come up with an IEP acceptable to Parents (testimony, Weber; S-1). In May 2002 the Gill-Montague Regional School District (Gill) promulgated an IEP covering 4/02 – 4/03 (S-1). On May 29, 2002 this IEP was specifically rejected by Parents, along with a letter explaining their rejection (S-1, 2). Gill requested a BSEA Hearing. A pre-hearing conference was scheduled for June 20, 2002 and the parties were notified in writing. Parents did not attend the pre-hearing conference on June 20, 2002. On June 25, 2002 the Hearing Officer scheduled a hearing for July 30, 2002 and the parties were notified in writing. Gill, pursuant to BSEA Hearing Rules, sent to the Hearing Officer and to Parents Gill’s exhibits and witness list 5 days prior to the July 30, 2002 hearing. Parents submitted neither exhibits nor a witness list. Parents never responded to any notices nor contacted the Hearing Officer either in writing or orally. Parents did not appear at nor attend the BSEA Hearing. Given that Gill is the moving party and no justification has ever been submitted for Parents’ absence, the hearing proceeded as scheduled.
ISSUE IN DISPUTE
Does Gill’s proposed IEP covering 4/02 to 4/03 address Student’s special education needs so as to provide him with a free and appropriate public education in the least restrictive educational environment?
STATEMENT OF POSITIONS
Gill’s position is that its proposed IEP covering 4/02 to 4/03 addresses Student’s special education needs so as to provide him with a free and appropriate public education in the least restrictive educational environment. Gill contends that its IEP, with its increased level of services, is essential for Student to learn behavioral controls so that he may become able to focus on educational/functional/academic/vocational issues.
Parent’s position , based upon the documentation submitted into evidence, appears to be that Student should continue to be educated in a regular education inclusion classroom with appropriate special education support.
PROFILE OF STUDENT
Student is a 13 year old boy with Down Syndrome who has “completed” the 6 th grade at GES. Across the standard intellectual assessment domains, Student’s intellectual functioning is estimated to be in the moderate to severe range of mental retardation. Student functions in the pre-school to kindergarten range with basic reading, writing and math skills at a very functional level and very limited social skills. He is notably weak in the area of pre-academic “learn to learn” or learning readiness skills which include the imitation, receptive, visual, play, and cooperation skills that represent the building blocks/prerequisites of communication and language, spoken and written. Such basic “learn to learn” skills are typically well established by the time a child has successfully completed kindergarten and entered the 1 st grade. Student’s receptive and expressive language skills are severely impaired at approximated a 3 year old level and he has an articulation disorder that has a significant impact upon his speech intelligibility.
Behaviorally, Student has had problems throughout the years but most significantly over the last school year in which non-compliant behaviors have become increasingly aggressive. Inappropriate behaviors fall into 3 general areas as follows: 1) Not being safe – behaviors include hitting, kicking, spitting, hair pulling, scratching, throwing things and biting others, both students and staff; 2) Not following directions – behaviors include disruption, non-compliance/not following directions, elopement (running away from staff and/or supervised area), and flopping (falling to the ground or floor and refusing to stand up); 3) Not respecting others – behaviors include inappropriate language, swearing, rude language, telling teachers to shut up. Additionally, a major behavioral change in the not respecting others category emerged over the last school year which was the inappropriate touching of others, both students and staff. Such behaviors included touching or grabbing buttocks, breasts, genitals, inappropriate body movements against others, and kissing others.
Student has spent the last 8 years, grades K (2 years) through 6 at GES in regular education inclusion classrooms with special education supports and some pull out therapies. Over the last school year (2001-2002) Student had a 1:1 aide assigned to him at all times while in school and a 1:2 ratio (Student to 2 adults) when outside of the school in community settings. Beginning in April 2002 out of school/community activities ceased and Gill hired an additional trained restrainer for Student within school.
(See testimony, Mahler; Hampel; Weber; S-1, 3, 7, 9, 10, 12, 14).
SCHOOL’S PROPOSED PROGRAM
Gill proposes that Student be educated in a substantially separate classroom setting to address his behavioral, academic and social functioning. Gill believes that the reduction of problem behaviors that Student exhibits must be the highest priority because Student’s future will be affected dramatically by the presence of such behaviors. All other goals-academic, social, community or vocational-should be secondary to the elimination of the problem behaviors because such behaviors could exclude him from normal (independent) residential and vocational options in the future.
Gill proposes a highly structured, predictable, intensive, individualized learning environment tailored to Student’s needs for him to make progress in addressing his problem behaviors that have become increasingly dangerous, intense and difficult to manage in the regular classroom; as well as addressing the pre-academic “learn to learn” basics of imitation, receptive skills, visual skills, play skills and cooperation skills which are the core of what is vitally important for his communicative, language, academic and vocational development. Gill’s IEP and Behavior Support Plan features minimized distractions and a highly predictable and structured routine, maximizing success through clear and simple instructions, suitable performance expectations, consistent prompts and follow through, effective and differential consequences (rewards/reinforcers), and accurate empirical data collection (towards documenting performance and making timely programmatic changes), data analysis and review. The IEP and Behavior Support Plan discourages problem behaviors by minimizing variables that cannot be minimized in the regular education classroom such as access to attention from others and avoidance/escape from instructions or tasks that Student’s negative behaviors now produce. All new skills will be taught by frequent and repetitive, consistently presented learning trials (discrete trials). Each trial will consist of an instruction, a targeted correct response (that will be prompted if necessary), and a reinforcing positive consequence. Tangible rewards will be supplemented by a token-based system using stars. There will be clear limits on what is and what is not acceptable. A time out procedure will be implemented if Student exhibits aggression or repeatedly does not follow directions or disrespects others.
All behavioral and pre-academic instruction will take place in a substantially separate classroom and will be provided by the special education staff/May Institute staff. Speech-language therapy will be provided for ½ hour, 5 days per week by the speech-language pathologist. Occupational therapy will be provided for ½ hour, 4 days per week by the occupational therapy consultant. Speech-language and occupational therapies will be provided in a similarly intensive manner as the behavioral and pre-academic instruction. Student will be assigned a 1:1 paraprofessional who has been trained by the May staff to follow the Behavior Support Plan. Gill will employ an in-depth trained restrainer to assist staff if Student’s behavior becomes unsafe. Special transportation will be provided. Six weeks of summer school programming will be provided to prevent substantial regression of any progress made. (See S-1, 14; testimony, Hampel; Weber).
PARENTS’ PROPOSED PROGRAM
Based upon the documentation submitted in evidence, it appears that Parents desire that Student continue to be educated in a regular education inclusion classroom with appropriate special education supports and with the academics modified/paralleled to the curriculum of Student’s grade level peers. (See S-2).
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Student is a child with special education needs as defined under state and federal statutes and regulations. There is also substantial agreement regarding the nature and manifestations of Student’s special education needs. The fundamental issue in dispute is listed under ISSUE IN DISPUTE, above.
Based upon the written documentation and oral testimony introduced into evidence and a review of the applicable law, I conclude that Gill’s proposed IEP and Behavior Support Plan is appropriate and desperately necessary to address Student’s special education needs so as to provide him with a free and appropriate public education in the least restrictive educational environment.
My analysis follows.
The evidence in this case is clear and unrebutted. Student is 13 years old with a documented developmental disability in the moderate to severe range which seriously impacts his behavioral, intellectual and communicative functioning. He has spent 8 years in grades kindergarten through grade 6 in GES in regular education inclusion classrooms with normally developing peers, following a modified and/or paralleled curriculum with special education teacher and aide support in the inclusion classroom. He has had every regular education teacher in GES, several of whom have also been certified special education teachers. Parental desires and beliefs have been accommodated/acceded to by Gill.
Unfortunately, the fundamental reality is that due to his developmental disability Student, at age 13 and at the end of 6 th grade, is still functioning at the pre-kindergarten to kindergarten level while his “peers” are functioning 6-7 grade levels above him. Over the years the gap between Student’s intellectual ability/functioning level and that of his peers have widened significantly. Based upon the evidence presented I find absolutely no educational justification for continuing Student in any regular education inclusion based classroom.
Further, I find that over the past school year Student’s behaviors have escalated to an intolerable level. Such behaviors would, in and of themselves, justify a more restrictive educational placement, both for the safety of Student as well as for the safety of the other students and staff in the classroom.
I conclude that the combination of Student’s moderate to severe developmental disability, his low cognitive and communicative functioning levels, and the nature, intensity, degree and frequency of escalating problematic behaviors clearly and unequivocally mandate a more intensive special educational program for Student if he ever is to be able to learn to control his behaviors and be able to “learn to learn”.1
Mr. Maher has been principal of GES for the same 8 years that Student has attended GES. He has observed Student on almost a daily basis over the last 8 years in the classroom, lunchroom, halls, therapies, playground and special occasions i.e., over the entire GES environment. He has chaired over 20 team meetings regarding Student. Over the past school year when Student’s 1:1 aide has been absent, Mr. Maher has served as the substitute 1:1 aide and provided direct services to Student. (See testimony, Mahler).
Mr. Maher testified with specificity regarding Student’s non complaint behaviors becoming more aggressive and out of control and Student’s inappropriate touching behaviors upon other students and staff. Mr. Maher testified that in the past Student would always respond to his verbal directions but not so this year, especially since this past spring, and that the same situation was occurring with the other GES teachers. Mr. Mahler testified that while other students are kind to him that Student has no real friends or peers. Mr. Maher stated that the inclusion model no longer works for Student who requires a substantially separate program with intensive special education instruction to address his multiple special education needs at this time. Mr. Maher has recorded over 1200 behavioral incidents by Student under the categories of aggression, non-compliance, darting, inappropriate language, flopping and inappropriate touching over the 2001-2002 school year. (See S-12).
Dr. Hampel is the Clinical Director of the May Institute in West Springfield, MA (May) and has served as May’s consultant to Gill, specifically for Student, over the last school year. He has spent over 120 hours working with/observing Student, consulting with Student’s teachers/therapists, attending meetings, and writing educational and behavioral plans for Student.
Dr. Hampel testified that the issue is not, as Parents perceive, that Gill is not implementing Student’s program correctly – the issue is that Student’s program is clearly inappropriate for him! Dr. Hampel testified that Student’s aggressive and sexualized behaviors, if not corrected, could result in a most restrictive placement for Student i.e., some type of incarceration. Dr. Hampel testified that Student requires a drastic change of placement in order to address his behavioral and social skills; that Student requires a great deal of support and control in a highly structured educational environment to be able to learn to generalize appropriate behaviors and to learn academic and communicative skills; and that Student is unable to imitate the behaviors of others but must be specifically taught behaviors though discrete trials methodology. Dr. Hampel testified that safety is a paramount concern for Student, his classmates and school staff; that Student currently is isolated in his mainstreamed setting; and that the current situation cannot by considered dignified for Student when he is lifted/held/restrained by his restrainer/aides as he attempts to hit, bite or inappropriately touch others.
I find both Mr. Mahler and Dr. Hampel to be extremely credible and persuasive witnesses. Mr. Maher has observed and interacted with Student for a very long period of time in numerous school situations/environments. Dr. Hampel has extensive experience (S-32) with students who have serious developmental disabilities and the appropriate behavioral strategies and programs to address these problems. Further, he has worked extensively with Student, Parents and staff over the last school year. Both Mr. Mahler and Dr. Hampel testified with passion, conviction and a genuine fondness for Student.
Based upon the totality of evidence presented, I conclude that the IEP/Behavioral Support Plan proposed by Gill for Student covering 4/02 through 4/03 is a thoughtful, comprehensive and highly detailed IEP which will provide Student with the individualized, intensive, specialized educational instruction he desperately requires, in a highly structured, predictable and safe educational environment. (See SCHOOL’S PROPOSED PROGRAM , above; S-1, 14). I conclude that such IEP/Behavioral Support Plan is essential for Student to receive a free and appropriate public education.
By the Hearing Officer,
Dated: September 9, 2002
Raymond Oliver
1
I note S-1 which references the fact that while it is quite probable that Student’s intellectual functioning limitations have exacerbated the frequency and intensity of problem behaviors, that it is also quite likely that such problem behaviors, once established, have some reciprocal effect on intellectual functioning i.e., problem behaviors can serve to limit a person’s intellectual growth by limiting learning opportunities.