COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Hingham Public Schools
BSEA #01-1374
DECISION
This decision is rendered pursuant to the Individuals with Disabilities Act, 20 U.S.C. 1401 et seq; Chapter 766 of the Acts of 1972, M.G.L. c. 71B; the Massachusetts Administrative Procedures, M.G.L c. 30A; Section 504 of the Rehabilitation Act, 29 U.S.C. 794; and the regulations promulgated pursuant to such statutes.
A hearing on the above-numbered case was held at the Bureau of Special Education Appeals in Malden, MA on October 31, 2000. The record remained open until November 9 th , 2000 for receipt of closing arguments.
Persons present for all or part of the hearing were:
Mother of Student
Aileen Weinberg Inclusion Aide, Hingham Public Schools
Elizabeth Fish Pupil Services Director, Hingham Public Schools
Mary Joann Reedy Attorney for Hingham School Committee
Stephany Woodward Preschool Special Needs Teacher, Hingham Public Schools
Sandra Sherwood BSEA Hearing Officer
ISSUES
I. Whether the Hingham Public Schools (hereafter, Hingham) failed to comply with Student’s 7/’00 – 3/’01 IEP in regards to the qualifications of Student’s aide;
II. Whether Student requires an aide with Masters level training and teaching experience, or whether a committed aide without such credentials, is sufficient.
PARENT’S POSITION
Student’s IEP calls for a 1:1 aide with professional status and experience, and yet, Hingham has been providing an aide with no such credentials. Thus, Hingham is failing to comply with its own IEP. Further, given Student’s severe learning difficulties, she requires an aide with Masters level credentials and educational experience in order to maximize Student’s learning.
SCHOOL’S POSITION
Student’s IEP does call for an aide with professional status and experience. However, what is more important, is that the aide be committed and have the ability to relate well with Student; this meets the requirements of professional status. Thus, Hingham is complying with its IEP. Further, Student is benefiting from the currrent aide. The Masters level training and educational experience is not necessary in order that she maximize her educational development.
STATEMENT OF THE FACTS
1. Student is a five year old young girl with Angelman Syndrome, a neurological disorder in which severe learning difficulties, seizure disorders, and a happy disposition are typical. Such characterize this student. Her seizures are controlled by medication. She is very social and well liked by her peers. Her communication is limited to gestures, pictures, and a “voice output”. She requires a lot of hands-on activities, a structured language-based program with “errorless learning”, and constant teacher prompting with “graduated guidance, pictures, visuals, repetition, role models, co-active movements and augmentative communication”. She has significant attentional difficulties; her gross and fine motor skills are compromised. (S-1, P-4)
2. Student has attended Hingham’s integrated pre-school school since 1998. The program is two and a half hours, four days / week. There are six typical children, and four special education children. There is the preschool teacher, an aide, and Student’s aide. Further, the speech pathologist is in the class 50% of the time, and the OT and PT consult. (Woodward) During the first year, Hingham provided Student a para-professional aide. According to Student’s mother (hereafter, Parent), the year was not successful, and there were several safety incidences. (P-11) In Hingham’s view, Student’s lack of progress was attributed to her frequent absences. (Woodward) In June of 1999, Student’s pediatrician stated his opinion regarding Student’s safety and educational needs in a letter to DOE’s mediator. He stated “Traditionally children with Angelman Syndrome are described as non-verbal, but with intensive language and communication support, they can have significant communicative abilities. The total communication approach seems to have worked well with many children with Angelman Syndrome. As with many conditions, the full potential of any given child with Angelman Syndrome is unclear. With high expectations and intensive support, self care skills, cognitive abilities and communication can be maximized. …She requires a full time full year program with a 1:1 professional … [who would] attend physical therapy, occupational therapy and speech therapy sessions with her, coordinate the carry-over of her therapies into the classroom setting, and reinforce the total communication approach. … This person should also work to extend [her] learning into the home environment. …To provide appropriate 1:1 assistance, a professional should have significant experience in education. [Parent’s] investigations support that such a person would have a Masters degree and certificate in special education or early childhood development and 3 years of post-graduate experience working with affected children. …I understand that such a specialized program may need to be provided using resources outside of the town….” (P-10)
3. In September of 1999, Hingham provided Student with an aide – Ms. Weinberg – who, in fact, had a Masters level education from Lesley College and over five years of teaching experience, with two and a half of those years in early intervention. (Weinberg, S-6) Further, Student’s special needs teacher is certified and received her Masters in special education in July of 1999. She also has worked as a graduate intern, a May Center for Early Childhood Education Senior Home-based therapist/consultant. (S-9) The teacher was responsible for modifying the curriculum for Student. However the aide, Ms. Weinberg, also modified the curriculum and then implemented it. She made adaptations ahead of time as well as on the spot. For instance, if Student’s attention lessened, she would get props, switch props, change to a 1:1 setting, or take a break and use other learning settings. Given her level of distractibility, constant redirection was important. In Ms. Weinberg’s opinion, her training and experience helped her be a member of the team, not just wait for instruction from the staff – who are very busy. Thus, there was no down time. Further, without her level of training and experience, she could not have used her discretion as she did. Finally, in her opinion, her experience was required to be able to catch all of her seizures. (Weinberg) According to Ms. Woodward, Ms. Weinberg very capably followed through in implementing her curriculum. By all accounts, Student made significant progress this year, and in Ms. Weinberg’s opinion, such progress (in social skills, communication, and self-help skills), would not have occurred if she had not been a professional. There were no safety problems under Ms. Weinberg’s care, although she did trip or fall down a few times. (Weinberg, Woodward, S-5, P-7) At the end of this school year, Hingham sent a letter to Ms. Weinberg, thanking her for her work as a para-professional, and assuring her that her employment could continue through the next school year. (S-6) However, she declined this offer.
4. In April of 2000, Hingham developed its 3/’00 – 3/’01 IEP, calling for 502.3 prototype services at Hingham’s South School. Such calls for inclusion services by a special education teacher one hour / day; and inclusion OT, PT, and Speech therapy once, once, and three times/ week, respectively. The IEP also calls for PT and OT once / per week each, outside of school hours. Finally, it calls for OT, PT, and Speech consultation 15 – 20 minutes / month, each.
5. In this IEP’s Student Instructional Profile, it states that an individual assistant (the same person every day) “is needed for safety and because she is dependent upon adult assistance to guide her through the routine of the preschool day.” (S-1, P-6) In May, Parent accepted this IEP, but rejected several portions of the IEP, including the portion that called for a para-professional rather than a professional. (S-2) In June of 2000, Hingham convened a TEAM to discuss this matter, which they did at length. According to Ms. Weinberg, they discussed the qualifications of a professional – an education or speech therapy background, as well as a Masters level education was needed; a para-professional was not appropriate. (Weinberg) (On cross-examination, Ms. Weinberg was not positive that the Masters degree was stated as a qualification, but certainly, a degree and teacher certification, with a lot of experience working with special needs children.) According to Ms. Fish, the qualifications discussed at the meeting may or may not include a degree, but rather, compassion and ability to deal with minutia are the requirements. In fact, they discussed an aide who had worked a lot in Hingham who had no degree but who was professional. Parent did not want this person. (Fish) Hingham did acknowledge, however, that if possible, it would prefer an aide with a degree. (Fish) As a result of this meeting, Hingham issued an amended IEP that changed the language, stating “the support of an aide for 1:1 instruction is beneficial…[such person] should be a person with professional status and experience which lends to Student’s educational needs… The aide … will direct Student to use adaptive equipment when sensory breaks are required …” It further states that the staff will implement an “errorless learning” approach, constant teacher prompting and redirection, graduated guidance, pictures/photographs, visual cues, props and puppets, repetition, role modeling, co-active movements and augmentative communication devices. Also, recommended strategies include identification and use of natural gestures, use of a voice output system, a personal flannel board and use of props for large group circle time activities. In July of 2000, Parent accepted this IEP. (S-4, P-4)
6. In September of 2000, Hingham hired an aide [who did not work out, then a second aide] who is a mother of two children, dedicated to her job, who interacts well with Student, but who has no education degrees, certification, or teaching experience. In contrast to Ms. Weinberg, Ms.Woodward needs to provide frequent supervision to the current aide. The preschool teacher is always in close proximity to Student and her aide, i.e., during circle time, tabletop work, play activity, recess and snack. This group of 10 children is frequently divided into smaller groups of 3-5 students. (Woodward)
7. Ms. Woodward asserts that Student is doing well. She does acknowledge that lately, Student has been mouthing objects a lot, probably because she is overwhelmed with the new children and a new aide. Further, she was sick. She has improved over the last few days.
8. Hingham asserts that they are complying with the IEP because this aide is dedicated and works so well with Student, is detail-oriented, and is therefore a professional. Further, Hingham could have hired a certified teacher who would clearly be a “professional”, but did not do this because Parent did not like how she was interacting with her daughter. Further, Ms. Woodward prefers the current aide. Finally, Hingham offered a third candidate – an experienced aide who has worked in Hingham’s schools for a long time, – but Parent did not want her. Hingham recognizes that its pool of eligible candidates is limited by the union-set salary for aides. However, given the fact that the aide is hired to assist the teacher, the salary is set. (Fish, Woodward)
FINDINGS AND CONCLUSIONS
I. I find that Hingham has failed to comply with Student’s IEP relative to the provision of a professional aide. This dispute was first documented in a 1999 letter from Student’s pediatrician calling for a professional aide with a Masters degree and teaching experience. Then, Hingham actually hired Ms. Weinberg who had such credentials. The following year, Hingham’s IEP that failed to call for such qualifications, was rejected. Thereafter, Hingham’s TEAM discusses the issue in depth, and issues a changed IEP which specifically calls for the professional credentials. Thus, it is clear that Hingham understood this distinction and promised to hire an aide who is distinguished from the typical aide – and that distinction is that the person will have qualifications not held by the typical aide. Thus, Hingham’s current aide who is dedicated and who has innate abilities, fails to possess those qualifications which would distinguish her from the IEP’s service provider which Parent previously rejected. That is, she has neither a degree nor teaching experience. Hingham is in non-compliance with its IEP.
Ms. Fish is unpersuasive in her assertion that the TEAM did not acquiesce to Parent’s concerns or that the IEP did not necessarily require a degree and educational experience. It may be that some staff did not think it was important, however, given the conversation at the TEAM meeting, it is clear that, despite the varying views expressed at the meeting, the IEP calls for a person different from the typical aide, i.e., having a degree and educational experience. Otherwise, the IEP would have no different meaning from the IEP already rejected. Whether such degree need be at a Masters level, is unclear. However, given the current aide’s lack of a degree or teaching experience, she clearly is not a professional, but rather, a para-professional. This does not negate Ms. Fish’s and Ms. Woodward’s opinion that the current aide has the capacity to have a good relationship with Student.
Hingham asserts that it has two other candidates that meet the professional criteria, however, neither of them is deemed appropriate to work with this Student. Ms. Vernon may have a BA, but she is not a certified teacher, has no experience relevant to working with this student, and is not supported by Ms. Woodward. (Woodward) Ms. Tondorf, although she may be an excellent aide, has no educational degree, and does not meet the professional standard as agreed upon in the IEP. (Woodward)
II. I find that, based on the evidence before me, Student does not require an aide with professional qualifications, as long as the supervising teacher is experienced, is always in close proximity to Student, and has sufficient time to constantly supervise, even on the spot. It is incumbent upon the teacher, however, to recognize if and when she is not able to provide this necessary supervision for this child, for clearly, this student requires intensive intervention. I am convinced that, in the current situation, the teacher is able to provide the necessary supervision so that this intensive intervention is provided. The teacher is always with Student’s group (whether it is the 3-5 students or the 10 students), the staff/student ratio is at least 2:10 (plus Student’s aide), and often 3:10 (plus Student’s aide) when the therapist is there. (Woodward) Accordingly, Ms. Woodward is persuasive that she is able to provide the supervision necessary for Student’s aide to implement the modifications to the curriculum. To provide anything less would deny this student her opportunity to maximize her learning.
Having said this, it must be emphasized, however, that the success of Ms. Woodward’s supervision is somewhat dependent on an intangible factor as to whether the aide can in fact carry out the teacher’s, as well as the therapists’, directions. Ms. Woodward stated that this aide can do this; Parent offered nothing to successfully rebut this. Thus, it must be assumed that she can. It is true that Parent’s witness, Ms. Weinberg, clearly believes that her training and experience was necessary. However, given that she never observed the current arrangement with the intensive supervision, she was unable to successfully rebut Ms. Woodward’s testimony that with her supervision, the aide can meet Student’s intensive needs. It is further noted that the record included a 1999 letter from Student’s pediatrician asserting that professional status was necessary. However, without an opportunity to cross-examine this doctor, his opinion also, can not be given sufficient weight to successfully rebut Ms. Woodward’s testimony.
This finding supporting Hingham’s position regarding the necessary credentials, does not negate Hingham’s responsibilities regarding compliance with its agreed upon IEP. Thus, unless Parent agrees to change the IEP’s requirements, Hingham is obligated to implement its IEP as written, and must continue to seek an aide who not only has the innate qualities necessary to work with Student, but also has the professional qualifications and relevant experience. It should be noted that there is nothing in the federal and state special education laws that would allow for limitations in salaries as reason to deny educational services deemed necessary for a child.
ORDER
Hingham shall take the necessary steps to obtain an aide who possesses the professional credentials, and who is deemed appropriate for this student. Such person shall be hired for the full time period agreed to in the IEP, in order to comply. This appears to be September of 2000 through March of 2001, which would be for seven months.
By the Hearing Officer,
___________________
Sandra Sherwood
Date: November 29, 2000