COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Hatfield Public School District
v. Student
BSEA #01-1878
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 said statutes.
A hearing was held on February 15, 2001, at the Town Hall in Hatfield, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
The School District requested a hearing on October 10, 2000. A Pre-Hearing Conference was held on November 15, 2000, at the Hatfield Public Library in Hatfield, Massachusetts.1 Both parties participated in the Pre-Hearing Conference and a telephone conference was scheduled for December 22, 2000. Notice was sent to both parties confirming the date and time of the telephone conference. The Parent did not answer the phone on December 22, 2000 and the Hearing Officer suggested that the School send a letter to the Parent outlining the proposal for services it had planned to present to the Parent during the telephone conference. On December 26, 2000, the Hearing Officer received a copy of a letter sent to the Parent by the Hatfield Public Schools outlining a proposal for service delivery. On December 29, 2000, the Parent called the Hearing Officer directly and requested a new conference call date. On December 29, 2000, the Hearing Officer issued an Order that the parties participate in a telephone conference call on January 4, 2001.
A telephone conference call was held on January 4, 2001. The Parent informed the hearing officer that she had spoken to an advocate and was waiting to find out whether the advocate would represent her. Another telephone conference call was scheduled for January 12, 2001 and the Hearing Officer issued an Order indicating that hearing dates would be scheduled during the January 12, 2001 telephone conference call.
During the January 12, 2001 conference call, the Parent said that she had not heard from the advocate who she had contacted. The School did not object to the scheduling of another conference call to allow the Parent to contact the advocate. The Hearing Officer issued an Order for a further telephone conference call and informed the parties that hearing dates would be assigned during the January 17, 2001 conference call.
On January 17, 2001, a conference call was held. The parties discussed holding the hearing at the Hatfield Town Hall to accommodate the Mother. The Hearing Officer informed the parties that the hearing would be held on February 15 and 16 at the Hatfield Town Hall and that their witness lists and documents would be due on January 9, 2001. The Mother indicated that she did not intend to call any witnesses. The Hearing Officer explained the procedure that would be followed at the hearing and explained the difference between the Pre-Hearing Conference which had previously been held and the Hearing. The Mother stated that she was not interested and hung up before the end of the telephone conference.2
The Hearing Officer issued an Order on January 19, 2001, regarding the hearing dates and location. On February 13, 2001, the Hearing Officer received a letter from the Mother indicating that she would be taking care of the Student’s therapy needs. The Hearing was held on February 15, 2001, at the Hatfield Town Hall. The Mother did not appear at the Hearing. On February 16, 2001, the Hearing Officer received the January 19, 2001 Order back from the parent with the notation, “Return to sender, not interested” handwritten on the envelope.
Those present for the hearing were:
Cynthia A. Joyce Special Education Director
Karen Czerniak Classroom Teacher, Hatfield Public Schools
Maxine Denisiewicz Special Education Teacher, Hatfield Public Schools
Susan Albino Speech Language Pathologist, Hatfield Public Schools
Robert Moczulewski Physical Therapy Assistant, Hatfield Public Schools
Cynthia Kwiacinski Special Education Teacher, Hatfield Public Schools
Trisha Tremblay 1:1 Aide, Hatfield Public Schools
Walter Stephaniv School Psychologist, Hatfield Public Schools
Laurie Cecchi Occupational Therapist, Children’s Therapy Center of the Pioneer Valley
Jennifer Berry Occupational Therapy Assistant, Children’s Therapy Center of the Pioneer Valley
Michelle Otis Administrative Assistant, Hatfield Public Schools
Catherine M. Putney- Hearing Officer
Yaceshyn
The official record of this hearing consists of documents submitted by the school, marked 1 through 14 and approximately five hours of recorded oral testimony. The record closed on February 15, 2001 as neither party wished to submit written closing arguments.
ISSUE
Whether the Individual Educational Plan (IEP) proposed by the Hatfield Public Schools for the period from April 2000 through April 2001 is appropriate to assure the Student’s maximum possible educational development within the least restrictive environment.
PARENTS’ POSITION
The Parents were not present at the hearing. The evidence presented at the hearing shows that the Mother has requested that the School stop providing occupational therapy, physical therapy, and speech and language therapy to the Student. The Mother has not informed the School District what services she believes the Student requires nor whether she thinks there is a more appropriate setting than the Hatfield Public Schools in which he should be educated.
SCHOOL’S POSITION
The Student has cerebral palsy of the spastic quadriparetic type. He requires intensive therapy, including: speech language therapy, physical therapy and occupational therapy in order to access the general curriculum. The Student’s parents refuse to consent to the provision of therapies by the School District. The School has not been authorized to provide therapy of any kind to the Student since September 2000, and he has regressed significantly since that time. The School has proposed an appropriate IEP to meet the Student’s needs and the Mother has rejected all portions of the IEP which provide for direct therapy services. The Mother has further requested that the School cease providing all physical therapy, occupational therapy, and speech and language therapy.
SUMMARY OF THE EVIDENCE
1. The Student is a twelve year old fifth grade student at the Breor Elementary School and has been enrolled in the Hatfield Public Schools since he was in pre-school. (Exhibit 5) He has been diagnosed with cerebral palsy of the spastic quadriparetic type and Attention Deficit Disorder3 . He is a happy and engaging child who likes to interact with and please others. (Exhibit 5) He is very energetic and loves being able to do things. (Denisiewicz) He is a great candidate for therapy services because he works so hard. (Cecchi) He shows evidence of learning in all domains and appears to enjoy intellectual stimulation and challenges. (Exhibit 5)
The Student’s ability to speak is limited. (Exhibits 4, 6). His learning is delayed and it is difficult to determine his precise cognitive level using standardized measures due to his physical and speech limitations. (Exhibits 4,5) Evaluations done in 1998 and 1999 indicated that his intellectual ability fell between the intellectually impaired and borderline range of functioning.4 (Exhibits 4,5) His receptive skills are more advanced than his expressive language skills. (Exhibit 5) He seems to understand a great deal of the content taught in the classroom. (Czerniak)
2. He currently reads from first and second grade texts. He reads with his one-to-one aide and goes to another classroom for reading instruction. His math skills are delayed, but he can do modified portions of what the other students are doing. He can do some multiplication, but not the same problems as the other students, because he is still learning the multiplication facts. His classroom teacher and aide try to parallel the curriculum and adapt it to the Student’s level. He works well on the computer and works on the same programs as the other students, but at a different level. He can use a computer keyboard and can type his spelling words. He has a computer in school, but it is not available for him to take home. He can write his name, but does not do much additional writing. (Czerniak)
3. The Student has high muscle tone in both his legs and his left arm. His right arm is free of tone abnormality. He has low tone in his trunk. (Exhibit 7a) He currently uses a wheelchair to ambulate. (Tremblay) Prior to this school year he used a walker for some portion of each school day. He required only minimal assistance to walk with the walker. (Exhibit 7a, Tremblay) He seemed to really enjoy walking with the walker as evidenced by the bright smile with which he greeted others as he walked. (Czerniak, Stephaniv) His Mother has instructed the school staff that he is not to be transferred from the wheelchair to his walker or from his wheelchair to the floor.5 She does allow the Student to be transferred from his wheelchair to a wide chair in the classroom.6 (Tremblay)
4. The Team met on March 29, 2000 to develop an IEP. (Exhibit 2, Joyce) In addition to the school staff, outside therapists7 , including a physical therapist, an occupational therapist, and a speech and language pathologist, attended the meeting. The School staff and the outside therapists agreed that the Student’s program should be more integrated and he should receive therapy from school staff during the school day instead of receiving services at the hospital. (Joyce) The parties agreed that Student would continue to receive his therapy at the Cooley Dickinson Hospital until August at which time there would be a transition to the school staff providing physical therapy, occupational therapy, and speech and language therapy. The Mother rejected portions of the IEP on May 24, 2000. Her rejection indicated that the plan called for too much therapy out of the classroom; she did not want alternative assessment testing; and she did not want summer services at Cooley Dickinson Hospital. (Exhibit 2)
5. The Student began receiving summer services on July 12, 2000 and received them until August 10, 2000 at the Breor Elementary School. (Exhibits 8c, 6c) The Student attended the program three days per week for three hours. Cynthia Kwiecinski, a certified special needs teacher, provided his academic instruction. She testified that she saw the Student’s ability to talk and “use the curriculum verbally emerge.” She was able to encourage him to use long sentences. She had known the Student prior to the summer and had not realized that he could speak as much as he spoke during the summer. (Kwiecinski)
6. The Student received physical therapy and speech and language therapy twice per week during the summer of 2000. (Exhibits 8c, 6c) The physical therapy sessions focussed on upper extremity strengthening and coordination. The sessions “proved to increase the Student’s endurance for upper extremity activities, gross and fine motor, and range of motion for the majority of left upper extremity joint motions.” He seemed to enjoy the sessions. (Exhibit 8c) The speech and language therapist focussed on improving the Student’s oral language and encouraging him to speak more often. The Student was given oral motor exercises to practice and the therapist was impressed when the Student asked her how many times a day he should practice his exercises. (Exhibit 6c) The therapist noted that the Student was highly distractible during their sessions and could only sustain attention toward a task for approximately 15 minutes at a time. She noticed that on days when she saw him immediately following his physical therapy session, his attention to task and motivation were increased. (Exhibit 6c)
7. In September 2000, the school therapists began providing services to the Student. (Joyce) They evaluated the Student’s level of functioning, provided direct services, and wrote recommendations to present to the Team when it reconvened to draft the Student’s IEP. The Team reconvened at the end of September. The therapists were not able to present their recommendations because the Student’s Mother indicated early in the meeting that she did not want the Student to receive any therapy services at school. (Joyce, Cecchi, Albino, Tremblay, Moczulewski). She had brought a bag full of what appeared to be toys and emptied its contents on the table and informed the group that the Student could use the items in the bag to provide himself with speech services when he awoke in the morning. (Albino, Tremblay, Cecchi, Moczulewski) The therapists presented the Team with written recommendations because they were not able to make their oral presentations to the Team.
8. Jane Allen’s recommendations for physical therapy services were presented in a report dated September 26, 2000. She recommended that the Student receive direct physical therapy twice per week for thirty minutes each session. She further recommended a 30 minute consultation with his one to one aide for ongoing training and that his aide do direct P.T. services with the Student three days per week for basic stretching, transfer training, and activities designated by the R.P.T.8 (Exhibit 7d)
Robert Moczulewski testified that the Student requires physical therapy to improve his mobility. The Student has several contractures and very high tone in all of his extremities except for his right arm. Stretching is critical for the Student if he is going to ambulate and move around. (Moczulewski) He recommended that the Student be stretched every day, more than once if possible, and that he receive direct physical therapy services at least twice per week for more than 30 minutes per session.9 He further recommended a consult with the R.P.T., the service provider, and the Student’s 1:1 aide. He thought that the Student’s physical therapy services could be ongoing during the day because his 1:1 aide is also a P.T.A. He recommended that an updated evaluation be conducted to determine the level of regression he has suffered. Mr. Moczulewski would want to rebuild the Student’s endurance, practice his transfer skills, and see the Student walking again. He stated that walking was a “big thing” for the Student because he enjoyed walking and seemed to feel good and proud about his ability to walk. (Moczulewski) Noel Kesselheim, O.T.R., confirmed the importance of walking for the Student.
It seems clear that if he were more independently mobile, he would be a very physically active little boy. Because he does not have the same opportunities other children do to use this physical energy, it is especially important for movement breaks to be built into his daily schedule. (Exhibit 8a)
Jane Allen’s report also described the importance of walking for the Student. She recommended that the Student walk with greater frequency and for longer distances. She found that he may need a “break” every 10 minutes which would allow him to move, possibly out of his chair, in order to maintain concentration. (Exhibit 7a)
9. Laurie Cecchi, the president of the Children’s Therapy Center of the Pioneer Valley, has a contract to provide occupational therapy services to students in the Hatfield Public School District and is an occupational therapist who has worked with severely disabled children in school settings for more than nine years. She supervised Jennifer Berry, COTA as she provided services to the Student during September. Ms. Cecchi testified that the Student would require occupational therapy twice per week to prevent further regression and further deformity of his upper body, his left arm and his trunk in particular. She said his therapy should also address upper extremity strengthening and coordination to prevent deformity and preserve joint integrity and further recommended consultation to the school and the family to promote carry over of motor enhancement strategies and adaptation of the Student’s environment to promote success. (Exhibit 8d) Ms. Cecchi stated that without occupational therapy services, the Student is at risk for acquiring deformity that is not reversible. (Cecchi) She stated that the Student would require an updated occupational therapy assessment to find out his current level of functioning given the regression he has had and she recommended that some goals and objectives be added to his IEP.10 (Cecchi)
Ms. Cecchi testified that she has had extensive experience working with children with similar disabilities to the Student’s. She believes the Student could be very independent in self-care skills if he receives appropriate services and could be 70-80% independent in dressing. She also believes he could be more independent in the bathroom if he receives training in toiletting. (Cecchi) Ms. Tremblay testified that the Student currently wears Depends. She and the school nurse change him and he is obviously embarrassed to require their assistance. (Tremblay)
10. Susan Albino, the speech language pathologist, provided speech services to the Student during September twice per week and recommended that he continue to receive direct individual services for thirty minutes at least twice per week.11 She also recommended that his one to one aide attend his sessions to promote carry over in the classroom setting. An interdisciplinary consult once per month was suggested so that all of the therapists could discuss the Student’s progress and encourage carry over throughout the Student’s environment. (Exhibit 6d) Ms. Albino also recommended that the therapists communicate with the Student’s parents through a home-school notebook to inform one another about what services were provided and what methodologies were the most beneficial for the Student. She stated that some of the Student’s IEP goals and objectives should be updated to reflect the fifth grade setting.12 (Albino)
11. At the request of the Student’s Mother, another Team meeting was scheduled for October 13, 200013 . The School requested a hearing before the Bureau of Special Education Appeals on October 10, 2000. Cynthia Joyce, the Director of Special Education, sent a letter to the Student’s Parents dated October 17, 2000 in which she confirmed the Student’s Mother’s request that the Student not receive speech, occupational therapy, or physical therapy services in school and indicated that the Student would not receive such services. (Exhibit 10) The Student has not received occupational therapy, speech and language therapy, or physical therapy since the school stopped providing services at the Student’s Mother’s direction. (Joyce)
12. The Student regressed noticeably between the time that his therapy services were terminated and the date of the hearing. (Albino, Tremblay, Kwiecinski, Czerniak) He slumps in his chair and leans to the left. (Tremblay, Albino) During transfers from his wheelchair to his wider chair, he used to require minimal to moderate assistance and he had “pretty good control over his body”. Now, his aide does all of the transferring and he leans on her. The height that his body reaches during transfers has decreased. (Tremblay) His aide has to give him constant oral cues to sit up. His slumped posture makes breathing and speaking less easy as it obstructs his airway. (Albino, Tremblay) He fatigues more easily than he used to and his general endurance has decreased. (Tremblay) He speaks less and with decreased volume and rarely speaks more than one or two words at a time. (Tremblay, Albino, Kwiecinski) His affect used to be joyful and now is dysphoric. (Stephaniv) His eye contact and ability to respond socially has decreased. (Albino)
FINDINGS AND CONCLUSIONS
The Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq . and the state special education statute, M.G.L. c. 71B. As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Neither his status nor his entitlement is in dispute.
Based on the evidence before me, it appears that the IEP at issue, had it been implemented, would have met the Student’s needs with the modifications stated herein. The evidence suggests that the Student was making progress in all areas of learning during the time that the therapy services were being provided. However, the Student has regressed as a result of not receiving his required therapy over an extended period of time. It is impossible to determine the Student’s current level of functioning with any certainty because the therapists who would have been best able to make such a determination have not worked with the Student for several months. The witnesses who testified about the Student’s current level of functioning either are not experts in the fields of physical therapy, occupational therapy, or speech and language pathology or have not been permitted to provide services to the Student for several months. They were only able to testify about the differences they have noticed in the Student’s general functioning since the Student stopped receiving therapy services. The Student will require updated physical therapy, occupational therapy, and speech and language evaluations to determine what level of services he now requires.
It is impossible to determine the Student’s current level of academic functioning based upon the evidence before me, as it has not been formally assessed since 1999.14 The Student will require an updated academic assessment to determine the level of academic services he requires and the appropriate setting for those services. At the present, the Student benefits socially from the inclusion setting and the curriculum is adapted to his level.15
The most glaring omission from the current IEP was the lack of provision of a computer for the Student to use at home. There was testimony and documentary evidence that indicated that the Student is not able to write sufficiently to produce written output as well as documentary evidence that one of the Student’s strengths is his ability to use the computer. Although the School has provided the Student with a computer to use in the classroom, it has not provided the Student with one to take home. In order for the Student to complete homework and access the curriculum, the Student requires a computer that he can use at home.
Ms. Cecchi testified that there is a great deal of assistive technology available that could assist the Student in the school. She indicated that she was not an expert in the field and as such could not make specific recommendations. The Student had an assistive technology assessment several years ago and the School implemented some of the recommendations made by the evaluator16 . The Student will benefit from an updated assistive technology assessment to determine whether updated technology would better meet his needs. There was documentary evidence that the Student would benefit from an augmentative communication system. Although the IEP provides for augmentative communication services twice per week, it is unclear from the record how these services are being provided. The Student clearly requires augmentative communication services because he is unable to rely on speech alone as a means of communicating.
The Student requires physical activity, including walking with his walker, to assist in his ability to focus on a task and to promote self-esteem. The evidence shows that he is better able to attend to academic tasks after receiving physical therapy. It also shows that walking brought him pleasure in addition to building his endurance for other tasks. He also requires training in activities of daily living such as dressing and toiletting. The evidence shows that he could become more independent in these areas if provided with appropriate services and supported at home.
It would have been helpful to hear the Student’s Parents’ perspective of the Student’s level of functioning, his needs, and their hopes for his future education. It was apparent from the testimony that the School staff had had some difficulty communicating with the Student’s Mother in the past and was concerned about their future ability to communicate. It was also clear that some of the proposed services outlined in the IEP had been drafted in a way that would be acceptable to the Mother and not necessarily in a way that would maximize the educational potential of the Student. In the future, IEPs must be drafted to reflect the amount of services the Student requires, not the amount of services the Mother wishes for him to receive. Although the Mother is an important part of the Team, the educators must use their professional judgment to determine the level of services the Student requires.
I found that all of the school department witnesses were genuinely concerned about the Student and clearly wanted him to receive the services he requires. The testimony of Laurie Cecchi, Trisha Tremblay, and Robert Moczulewski was especially helpful because they all seemed to have exceptional knowledge in their fields as well as of the Student’s individual needs. I found these witnesses credible and relied upon their testimony in reaching my conclusions.
ORDER
The School shall conduct a complete reevaluation to determine the extent to which the Student has regressed and the amount of direct therapy services they believe he requires as a result of the regression in addition to what services he requires overall. Additionally, the School District shall conduct an assistive technological evaluation to determine what technology would best assist the Student in the classroom. The School District shall also have an expert in augmentative communication evaluate the Student to determine what kinds of services he requires in this area and draft goals and objectives.
The School District shall provide the Student with a computer that can be used in the home as well as in the classroom in order that the Student can complete homework assignments that require written output.
The Team shall reconvene after the reevaluation is completed and draft a new IEP that incorporates the updated information learned from the reevaluation, describes the Student’s current needs and outlines the appropriate service delivery.17 The IEP shall provide for consultation between the school therapists and the teachers/aide as deemed appropriate by the Team.
The evidence shows that the Student’s distractibility is lessened when he is given opportunities to be physically active during the day. Therefore, the Student should be given opportunity to take movement breaks during the day. Whenever possible, his academic instruction should take place after he has had occupational therapy or physical therapy sessions. His physical education classes should be adapted to provide him with more opportunity to participate in physical activities.
His occupational therapy program should include instruction in toiletting and dressing. It should also include a home component to encourage carryover and provide the Parents with training to assist the Student in his acquisition of skills. There should be communication between the home and the service providers in all areas to encourage carry over of skills between the home and the school and to exchange information about the Student’s progress. The School shall make every effort to include the Parents as full members of the newly convened Team and to communicate with them about the Student’s needs and his progress.
The School shall immediately take all necessary steps to ensure that this Order is followed and that the Student receives the services he requires. The School shall ensure that the Student is not denied a free and appropriate public education and shall initiate proceedings in any appropriate forum to ensure compliance with this Order.
By the Hearing Officer,
__________________________
Catherine M. Putney-Yaceshyn
Dated: March 21, 2001
1
The Pre-Hearing Conference was held in Hatfield, Massachusetts to accommodate the Student’s Mother who had informed the Hearing Officer that she was in too much pain to travel to Worcester or Springfield for the Pre-Hearing Conference.
2
The Mother was still on the telephone during the discussion of hearing dates, location, and procedures.
3
The Student takes medication for Attention Deficit Disorder. There is nothing in the record to indicate what medication he is currently taking, but in Daisy Mathias’ 2/17/99 evaluation, it was noted that the Student was taking Adderol each day.
4
The Student is due for his three-year reevaluation at this time.
5
Ms. Tremblay stated that during a meeting the Friday before Christmas vacation the Student’s Mother stated that she did not want the Student to walk in the walker because it was a waste of his time and it was boring for him.
6
The Student’s Mother will not allow the Student to be transferred from his wheelchair to a chair in the cafeteria. (Tremblay)
7
The Student had been receiving therapy at the Cooley Dickinson Hospital and at his home because the Student’s Mother did not want him to be pulled out of class to receive therapy and did not want school therapists to provide his therapy. (Exhibit 2, Joyce)
8
The Student’s aide is a P.T.A. and is therefore qualified to provide direct services under the supervision of a R.P.T. (Moczulewski)
9
He stated that it would take at least 15 minutes to stretch the Student and get him ready for his actual therapy.
10
Goal: Student will improve his left upper extremity strength and coordination and his awareness of his left arm. Objectives: 1) Student will consistently use his left arm when working at a table top without relying on verbal prompts; 2) Student will, following weight bearing activities, spontaneously use his left arm to catch a large therapy ball; 3) Student will improve his reach, grasp and release of objects that are graded.
Goal: Student will improve his visual tracking skills. Objectives: 1) Student will smoothly track when reading without having to move his head when he is reading from left to right; 2) Student will be able to scan a page from top to bottom and left to right finding salient information without having to rely on a guide like his finger or a ruler; 3) Student will develop the endurance to be able to locate items or objects in the classroom without having to turn his head or his upper body.
11
She testified that she had recommended that he receive services twice per week because the Student’s Mother would only consent to services twice per week. She further testified that he may benefit from receiving direct speech services three times per week.
12
She would expand on objective 7.2 to include two syllable words in two to three word phrases and add an objective to focus on the distinct production of 3 syllable words. She would expand the objective of gaining a listener’s attention to include using expressive language, e.g., after gaining a listener’s attention, the Student will state what he wants and convey an oral message. She would expand the objective of Student communicating with peers during social activities to include communicating with other students in the classroom to state information or ask a question. She would rewrite the objective that the Student would make socially appropriate requests and state that the Student will increase the length and quality of his questions.
She would add three objectives to help the student’s oral language skills. 1) After speaking, the Student will indicate to the listener if they have correctly understood the message. 2) Given an opportunity to share, the Student will choose a topic and relay specific information about an event. 3) Given a structure for story elements, the Student will create verbal stories.
She would add a new goal: the Student will improve his use of oral communication within his academic setting.
13
There is nothing in the record regarding this Team meeting except for a copy of the notice sent to the parent (Exhibit 12).
14
Ms. Joyce testified that the Student was due for a three-year evaluation last year, but the Mother would not consent to said evaluation. The School should have initiated proceedings to obtain authority to evaluate the Student in order to have updated information with which to draft the IEP.
15
In the future, the Team must consider whether this setting remains appropriate as the curriculum becomes more complex.
16
The evaluation was not part of the record, but was referred to in several documents in the record.
17
In drafting the new IEP, the Team should consider the inclusion of the goals and objectives recommended during the hearing and cited in the Summary of the Evidence portion of this decision.