COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Halima1 and Lincoln-Sudbory Public Schools
BSEA#03-3557
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under those statutes. A hearing was held on June 2 and 3, 2003, at the Department of Education in Malden, MA. Those present for all or part of the hearing were:
Student
Parents
Arlyn Roffman Psychologist
Karen Gutterman Training Specialist- Lemberg Children’s Center
Barry Schwartz Vinfen Corp.
David Gotthelf Director of Student Services- Lincoln-Sudbury Public Schools
Meredith O’Reilly Special Educator- Lincoln-Sudbury Public Schools
Rebecca Reitz Coordinator of Special Education- Lincoln-Sudbury Public Schools
Paula DiManno Individual Aide- Lincoln-Sudbury Public Schools
Kathy Bach Paralegal
Tom Sannicandro Attorney for Parents
Joan Stein Attorney for Lincoln-Sudbury Public Schools
Lindsay Byrne Hearing Officer-BSEA
The official record of the hearing consists of documents submitted by the
Parents marked P-1 through P-47, documents submitted by the School marked S-1, S-2 and S-4 through S-12, and approximately 10 hours of recorded oral testimony. Written closing arguments were received on June 30, 2003, and the record closed on that date.
ISSUES
1. Whether the program proposed by Lincoln-Sudbury for the Student’s 2002-2003 school year was reasonably calculated to provide a free, appropriate public education to her in the least restrictive setting?
2. If not, are the Parents entitled to retroactive reimbursement ofexpenses associated with the unilateral placement of the Student in the GROW program at the Riverview School during the 2002-2003 school year?
SUMMARY OF THE EVIDENCE
1. Halima is a twenty year old young woman who completed twelve years of schooling in Lincoln-Sudbury in June 2002. She has delegated educational decision making to her Parents.
Halima has Down syndrome. She is an active, social, cheerful person whose goals are to live independently, to have a job in the retail sector, and to have a group of good friends. She attended the REACH program at Lincoln-Sudbury High School where she followed a mainstreamed academic program with modifications, academic support and related services. Though eligible for high school graduation, Halima declined a diploma. She currently attends the Project Grow program at the Riverview School. (S-1, P-7; S-8; P-4, 5, S-10; P-27, S-12; O’Reilly Gotthelf; Parents)
2. In March 2002, Lincoln-Sudbury conducted a three year re-evaluation. The psychologist, Lynn Carlson, noted growth in Halima’s expressive language as well as her attention and concentration skills since her last evaluation in 1999. As a result, Ms. Carlson stated, Halima’s standardized intelligence test score of 56 more closely correlated to her actual daily functioning. Ms. Carlson recommended continued attention to the development of functional community skills, as well as identification of vocational interests.
Halima’s special education teacher, Ms. O’Reilly, conducted academic achievement testing and found Halima to be functioning overall at a second grade level. She recommended continued direct instruction in practical math and reading as well as identification of vocational interests. A speech-language evaluation was also conducted but did not contain any recommendations for future services. (S-5, P-11; S-7, P-8; See also S-6, P-10)
3. During the 2001-2002 school year, Halima’s parents were concerned about her prospects for post high school education. They were not aware of any existing program within Lincoln-Sudbury to address the on-going educational needs of students who had completed high school. They learned of the GROW program at the Riverview School through the parents of another Lincoln-Sudbury student. After visiting in the fall of 2001, they applied for admission, and Halima was accepted on February 2, 2002. (P-31, 32, 37; Parents)
4. A Team meeting was held on April 25, 2002. The parents, the Director of Special Services, Dr. Gotthelf, and the Student’s special education teacher, Meredith O’Reilly, participated.2 As was her usual practice Ms. O’Reilly distributed a “draft” IEP which she expected would be modified at the meeting and during subsequent discussions with the parents. The draft proposed IEP contains services and goals in the areas of functional academics, vocational education and speech-language services. (S-1, P-7) Ms. O’Reilly testified that it was Lincoln-Sudbury’s intent to provide most of the listed services in community settings with an individual aide and door-to-door transportation. The actual selection of sites and services would based on the skills and interests of the student and parents. For example, the academic goal envisioned the student attending a community college course, with assistance and modifications provided by an individual aide. Appropriate course selection, however, would be up to the parents, student and college. Similarly, a wide variety of vocational options were available. Lincoln-Sudbury could arrange a placement at a retail establishment, child care center, greenhouse, etc. with an aide, depending on Halima’s interest and skills. (O’Reilly) There was no existing program the parents could view before September 2002, since the 2002-2003 “program” would be developed on an individual basis for Halima. There were, in the spring, 2002, no Lincoln-Sudbury students following a similar program model. No literature describing the program was available to the parents. Ms. O’Reilly developed a brochure about the newly named “Bridges” program in June 2002. (O’Reilly)
The “draft” IEP indicates that the program would be located at or based in a classroom environment, though at the hearing Ms. O’Reilly stated that it would not. The draft IEP does not indicate that a one-to-one aide or specialized transportation would be available to Halima. The draft IEP does not describe or discuss Halima’s documented needs for instruction in independent life skills and integration into social groups. The IEP deleted the occupational and physical therapy services which had been listed on the previous IEP, though no evaluations in those areas had been conducted during the 3year re-evaluation. Ms. O’Reilly testified that these services were omitted only because she was aware that Halima would not actually be returning to Lincoln-Sudbury in September 2002. (S-1, P-7; O’Reilly)
At the Team meeting the Parents did not dispute the findings or recommendations of any of the evaluators. Nor did they challenge the conclusion that although Halima had made continual progress in Lincoln-Sudbury, and had completed the requirements for a high school diploma, she should decline the proffered diploma and retain her eligibility for special education services. The Parents requested that Lincoln-Sudbury place Halima in the GROW program at the Riverside School beginning in September 2002. The Parents told Dr. Gotthelf and Ms. O’Reilly that even if Lincoln-Sudbury did not agree to place Halima at the Riverside School, she would not be participating in a new program through Lincoln-Sudbury. (Parents, S-2, O’Reilly)
5. There were no meetings between the Parents and the School after April 25, 2002. The School never contacted the Parents to determine their response to the “draft” IEP. Lincoln-Sudbury did not produce a final IEP as a result of the April 25, 2002, Team meeting. The Parents did not see the brochure developed by Lincoln-Sudbury in June 2002, describing the “Bridges” program until May 2003. On July 8, 2002, the Parents returned the signature page of the “draft” IEP indicating their rejection of the plan. On July 29, 2002, the Parents formally notified the School of their intent to place Halima at the Riverview School and to seek public funding of the placement.
6. The Riverview School is a private, Massachusetts approved residential special education school. It offers a secondary school program and a post-secondary transitional program. The transitional program, known as “ GROW”, provides integrated day and residential components designedto foster the social, academic and personal skills necessary for independent adult functioning. Academic instruction focussed on functional life skills takes place in small groups in classrooms in the morning. The afternoon provides students with prevocational training and exploration on campus, or in a specialized vocational preparation program at the local community college. Instruction in life skills continues in the residential component which addresses household, leisure and social skills as well as time management and community activities. (P-4, 5; S-10) Halima has attended the GROW program since September 2002. She has made steady progress, particularly in her personal and social skills. She has, for the first time, a group of similarly situated friends. She is happy, confident, and goal directed. (Parents; Student; P-40, 41, 43)
7. Dr. Arlyn Roffman, a psychologist and professor of special education who started a university based transition program for young adults with learning disabilities in 1981, is familiar with both Halima and Ms. O’Reilly from her supervision of Ms. O’Reilly as a student teacher while Halima participated in the REACH program. She observed the Riverview GROW program, and Halima’s participation in it, reviewed the “draft” IEP and observed another student who received some services through Lincoln-Sudbury’s Bridges program in December 2002. Dr. Roffman testified that the GROW program is a well planned and well executed transition program with a good balance of typical interactive experiences in the community and activities with a small, supportive group of peers. Dr. Roffman also testified that much of what makes the GROW program work so well for Halima, i.e., a supported away from home experience, a group of similarly situated peers for friendship, models and support, and structured leisure activities for evenings and weekends, are not necessarily components of a free, appropriate public education for Halima.
Dr. Roffman stated that the Bridges program in action, as she saw it in December 2002, with another Lincoln-Sudbury student, provides an excellent, community based, integrated model of transitional educational services. It is highly individualized to address the needs and interests of the student and provides comprehensive, academic, vocational, leisure, and community living activities. Her only recommendation was that Lincoln-Sudbury expand the program so that participants could access a group of similarly situated peers for social events and support.
Dr. Roffman testified that the “draft” IEP of April 25, 2002, contained only a skeleton of appropriate services for Halima. It lacked the specificity, the individualization and the comprehensiveness necessary to notify the parties of the parameters of an appropriate 2002-2003 program. She stated while it was understandable that the School did not want to put a lot of time and effort in developing an IEP for a student it understood would, under no circumstances, be attending a Lincoln-Sudbury program in the fall, 2002, the draft IEP still lacked very basic components of an appropriate transition plan. According to Dr. Roffman transition IEPs must contain: a clear vision statement from the student; essential activity of daily living instruction designed to promote independence; direct instruction in pre-vocational and vocational skills; social/emotional services addressing the student’s skills; exposure to both typical and similar peers; current information on the student’s functional living, vocational and social-emotional skills; specific information on the location of instruction; observable and measurable goals that are realistically linked to necessary real life skills; and methods for developing self-advocacy. Of these essential elements only self-advocacy skills are addressed in the “draft” IEP. (Roffman; P-3)
8. While the social emotional benefits to Halima of Riverview’s residential component are significant, and cannot be replicated in a community-based transition program such as that proposed by Lincoln-Sudbury, Halima does not require twenty-four services in order to receive a free, appropriate public education. (Roffman)
9. There is a long history of miscommunication and conflict between the School and the family. The details are not pertinent to the resolution of the current issue. That background, however, informs the actions of the parties regarding the development of the 2002-2003 IEP. (P-13-26)
Findings and Conclusions
There is no dispute that Halima is a student with special learning needs as defined by 20 U.S.C. § 1401 et seq . and M.G.L. c. 71B and is currently entitled to receive a free, appropriate public education. Furthermore there is little disagreement about the nature of Halima’s current learning needs, nor about the general parameters of an appropriate transitional program for her. Although presented as an issue of appropriate placement in the community as advocated by the school, or in a comprehensive residential program as selected by the Parents, the ultimate decision here rests on procedure, not content. After careful consideration of all the evidence presented in this matter, and the arguments of counsel for both parties, it is my determination that Lincoln-Sudbury failed to offer a transitional special education plan to Halima for the 2002-2003 school year. As Halima had completed the available special education options at the high school she had no “stay put” placement. The Parents were therefore justified in opting to make a unilateral educational placement. The chosen placement, the GROW program, contains all the recommended educational services for Halima, and more. The Parents gave the required written notice to the School in advance of the placement, and received no response. Therefore I find that the Parents are entitled to retroactive reimbursement for all out-of-pocket expenses associated with Halima’s placement at the Riverview School for the 2002-2003 school year.
First I note that the only transitional programming recommendations in the record were made by Dr. Roffman, who had the unique opportunity to see Halima over the course of several years in two different educational placements, to have supervised Ms. O’Reilly, now the coordinator of the new Bridges programs and to have viewed both the GROW and the Bridges programs in operation. (The latter an opportunity, I note, not available to the Parents before they had to make a placement decision for 2002-2003). I therefore place great weight on the testimony of Dr. Roffman, whom I also found to be a fair and candid witness. Dr. Roffman testified that both the Bridges and the GROW programs were excellent models of transitional education programming for young adults with needs similar to Halima’s. The Bridges program had the advantage of location within the intended community of residence, and full integration into the typical environment. The GROW program had the advantage of the social support of an instant community of similarity situated peers, and structured leisure activities. Though she believed Halima could learn necessary independent living skills in either program, Dr. Roffman correctly noted the law’s preference for programming locally and in the most integrated environment possible.
Therefore, were all other things equal, the Bridges program would be found to be the least restrictive, appropriate educational program for Halima. Here, however, Lincoln-Sudbury failed to actually deliver an IEP outlining its recommendation for a Bridges type program for Halima. Indeed, the evidence shows that the “draft” IEP brought to the April 2002, Team meeting, was never modified or extended to include even those services school personnel thought necessary for an effective transition program, such as a one to one aide and specialized transportation. Neither the unchanged “draft” IEP (admittedly inadequate on its own terms-see Roffman, O’Reilly), nor any other IEP, was sent to the Parents after the April 2002, Team meeting. The School did not write or telephone the Parents to elicit their input, or to explain the program it would propose for Halima. The School did not even forward to the Parents the descriptive brochures it developed in June 2002, about Bridges. Contact from school about anticipated programmatic changes is always welcome of course, but is especially critical when there is no existing program parents can view prior to making a placement decision. Even more disheartening is the School’s failure to respond in any way to the Parents’ formal notification in July 2002, of Halima’s unilateral placement at Riverview. The School argued at the hearing that the Parents failed to give the School timely notice of their dissatisfaction with the Bridges program so that appropriate changes could be made. That argument misses the point that it is the responsibility of the school to engage the parents in the IEP process, to actually develop an appropriate IEP, to identify a placement, and to deliver the IEP and the services to the student. 603 CMR 28.05 (7); 603 CMR 28.07 (1)(3). Lincoln-Sudbury did none of these things in the spring and summer, 2002. As the U.S. Supreme Court noted in Board of Education v. Rowley , 458 U.S. 176 (1982): “Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard.” See also : Roland M. v. Concord School Committee , 910 F.2d. 983 (1 st Cir. 1990), cert den. , 499 U.S. 912 (1991). When a school fails, either substantively or procedurally, to propose an IEP that will provide an eligible student with a free, appropriate public education, parents are entitled to take self-help action to ensure that the educational needs of the student are met. School Committee of Burlington v. Department of Education , 471 U.S. 359 (1985). Here the uncontroverted evidence plainly demonstrates that Lincoln-Sudbury did not propose an IEP for the 2002-2003 school year for Halima and that the Parents took appropriate self-help action by enrolling her in the admittedly appropriate GROW program for that year.
Order
Lincoln-Sudbury failed to develop an appropriate IEP for the 2002-2003 school year. The Parents are entitled to retroactive reimbursement of all out-of-pocket expenses associated with the unilateral placement of the Student in the GROW program at the Riverview School during the 2002-2003 school year.
By the Hearing Officer,
____________________________
Lindsay Byrne, Hearing Officer
1
“Halima” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
There may have been other attendees but the draft IEP does not have an attendance sheet. See S-1, P-7.