COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Ipswich Public Schools
BSEA #07-0962
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.; as amended by P.L. 108-4461 ); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
The issues here are, generally, whether the program and services proposed by Ipswich for the 2006-2007 school year are reasonably calculated to provide the student with a free, appropriate public education (FAPE) or whether he cannot receive FAPE unless Ipswich adopts all recommendations of Parent’s expert, or unless Ipswich places him in Melmark, a private special education program..
Procedural history and effect of prior decision
The parties in this matter have been involved in litigation over Student’s special education services since May 2005, when Parent filed her first hearing request with the BSEA ( In Re: Student v. Ipswich Public Schools , BSEA No. 05-3855). Hearing Officer Rosa Figueroa conducted a three-day evidentiary hearing in June 2005. On September 6, 2005, Hearing Officer Figueroa issued a decision upholding the School’s proposed program for 2005-2006, with modifications. Parent timely appealed that decision in the Essex Superior Court. The Superior Court dismissed Parent’s appeal in approximately May 2006. Parent has sought Appeals Court review of the Superior Court ruling, and this review is still pending. At no time has Parent sought a stay of the original BSEA decision, which has been admitted into the record as Exhibit BSEA-1.
Parent initiated the current appeal with a hearing request filed on August 8, 2006. This hearing request contains multiple allegations related to scheduling and provision of services during July and August 2006, and also mentions that if Parent and the Ipswich Public Schools (Ipswich or School) did not resolve the dispute, Parent would seek an order placing Student at Melmark. The School filed a response on August 18, 2006. . A telephone conference call was held on September 11, 2006 for the purpose of scheduling and clarifying the issues for hearing.
A hearing on the merits took place on September 12, October 5, and October 10, 2006 at the office of the Bureau of Special Education Appeals in Malden, MA. Parent appeared pro se , and Ipswich was represented by counsel. Parent’s sole witness, Rafael Castro, Ph.D. provided direct testimony on the first day of hearing, September 12, 2006. The parties and Hearing Officer had received Dr. Castro’s report one day previously (September 11, 2006). Therefore, at the close of the first day of hearing, this Hearing Officer ordered Ipswich to convene a team meeting no later than September 22, 2006, and to produce a new IEP or amendment no later than September 27, 2006. The TEAM convened on September 26 and issued a proposed IEP that incorporates some but not all of Dr. Castro’s recommendations. As of the hearing date, Parent had not responded to this IEP, which is the operative IEP for purposes of this decision.
Those present for all or part of the proceeding were:
Shawna Carr COTA, Ipswich Public Schools
Reagan Cassidy Intervention specialist, Educational Consultants of New England (ECN)
*Rafael Castro, PhD Neuropsychologist, Children’s Evaluation Center
Carolyn Davis Principal, Winthrop School, Ipswich Public Schools
Kristine Glennon Speech/language therapist, Ipswich Public Schools
Andrea Lynch Friend of Parent
Margaret A. Madeiros Program Mgr., Winthrop School, Ipswich Public Schools
*Susan Maselli BCBA consultant, ECN
Diana Minton Director, Pupil Personnel Services, Ipswich Public Schools
Laurie E. Smith Director of Educational Programs, ECN
Parent, pro se
Mary L. Gallant, Esq. Attorney for Ipswich Public Schools
Laurie Jordan Certified Court Reporter
Trish_________ Certified Court Reporter
* Testified by speaker phone.
The official record of the hearing consists of Parents’ Exhibit P-1; School’s Exhibits S-1 through S-47; BSEA Exhibit BSEA-1 and approximately 9 hours of tape-recorded oral testimony and argument. On October 11, 2006,after the close of testimony, Parent filed various motions including a motion for leave to submit additional documents and a motion for an order to place Student in an out of district program. On October 17, 2006, Parent filed a Motion for Outplacement on an emergency basis.2 The School filed oppositions on October 17 and 25, respectively. On October 25, 2006 I denied the Parent’s motion to submit further documents, except for several documents designated in the ruling that will be considered part of Parent’s written closing argument, and also denied the motion to order an outside placement on an expedited basis.
On October 24, 2006, the School filed a Motion for Directed Verdict. Parent has not filed an opposition thereto; however, this Decision renders the School’s motion moot..
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether the IEP and services that Ipswich has offered and provided for the 2006-2007 school year are reasonably calculated to provide Student with a free, appropriate public education, either as is or with modification, or,
2. Whether Student requires supervision of his program by a PhD-level behaviorist at the doctoral level as well as an in-house Masters level behaviorist in order to receive FAPE, or
3. Whether Student must be placed at Melmark, a private special education facility in order to receive a free, appropriate public education.
POSITION OF PARENT
Student is only four years old and is very vulnerable as a result of severe disabilities, including autism spectrum disorder, asthma, and feeding issues. Ipswich’s proposed IEP is not reasonably calculated to provide Student with FAPE because it does not ensure that Student’s ABA therapists and their supervisors are adequately qualified, that therapists receive sufficient oversight, and that services are provided consistently. The deficiencies of the School’s program in this regard are demonstrated by Parent’s experience during the summer of 2006 when Student’s program was implemented inconsistently and inappropriately. Student’s IEP must incorporate the recommendations of Dr. Rafael Castro for, among other things, supervision of his programming by a Ph.D. level behaviorist. For this reason, and because Ipswich has failed to provide Student with FAPE in the past, it must now place Student in the Melmark school.
POSITION OF IPSWICH PUBLIC SCHOOLS
Parent has presented no credible evidence that Ipswich’s program is inappropriate or that Student requires a restrictive private placement in order to receive FAPE. On the contrary, at all relevant times, Ipswich has offered Parent and Student an IEP and placement that is appropriate for Student. Parent, however, has refused to allow Student to participate in Ipswich’s program on a consistent basis. Any failure of the Student to make adequate progress is attributable to Parent’s actions and not to any deficiency in Ipswich’s program.
FINDINGS OF FACT
1. The findings of fact contained in the decision issued in BSEA No. 05-3855 are adopted and incorporated by reference, subject to being superseded or updated by the following additional findings.
2. Student is now four years old. He is a happy, appealing child. Student’s basic diagnostic profile has not changed since the prior decision was issued, in that he has Pervasive Developmental Disorder, Not Otherwise Specified (PDD/NOS) and Autistic Spectrum Disorder. As a result, he has severe delays in receptive and expressive language, social emotional, gross and fine motor, and self-care skills. Student is essentially non-verbal, and developmental skills generally cluster around the 12-month level, with some skills slightly higher and others lower. (BSEA-1, Castro, P-1) Student also engages in self-stimulatory behaviors. (Id.) Student continues to have asthma and feeding problems as discussed in the September 2005 Decision; however, since that time, Student’s asthma and general health status have improved significantly. He has made some progress with feeding, but still relies heavily on Pediasure. (BSEA-1, Castro, P-1, S-2)
3. Student turned three years old on February 1, 2005, and, on January 28, 2005, Ipswich proposed its first IEP for Student. This IEP (hereinafter 1/28/05 IEP, School’s exhibit S-38) is described in detail on pages 18 and 19 of the prior BSEA decision. (See BSEA-1) In sum, the 1/28/05 IEP offered Student services at home and in the Enhanced Preschool program located at the Doyon Elementary School in Ipswich. Services were to be provided by both Ipswich staff and therapists from Educational Consultants of New England (ECN). ECN is one of the private vendors that had provided ABA services to Student through Early Intervention. (Id.)
4. Goals on the 1/28/05 IEP address “cooperation and reinforcer effectiveness,” (i.e., one goal was to identify items and activities that Student likes and that motivate him to engage in ABA and other services); play and classroom skills, receptive and expressive language, imitation skills, gross and fine motor skills, and activities of daily living (ADLs) including feeding.
5. The service grid for the 1/28/05 IEP called for a total of 34.5 hours per week of home and school-based services, including 24 hours of ABA /discrete trial teaching, distributed as follows:
· Consultation: five hours per week comprising 2 hours/week from the speech/language therapist; 2 hours per week to home and school from ABA providers, 30 minutes/week from the physical therapist, and 30 minutes per week to both home and school from the occupational therapy assistant (COTA).
· Direct service in general classroom: 16.5 hours per week consisting of 14 hours of ABA services (10 hours of 2:1 services by ECN and Ipswich staff and 4 hours of 1:1 service by an ECN therapist, in a private room); 30 minutes per week of group PT, and 2 hours per week of inclusion classroom activities with 1:1 support.
· Direct service outside the classroom: 13 hours per week including speech/language therapy—1 hour/week each at home and in school; ABA—10 hours/week at home provided by ECN; and OT—30 minutes/week each at home and in school. (S-38)
6. On February 18, 2005, Parent accepted the home-based services and rejected most of the school-based services offered in the 1/28/05 IEP.(BSEA-1, p. 19) The events from February through June of 2005 are extensively described in the prior BSEA decision and will not be restated here, except to note that Student received certain home-based services during that period from both Ipswich and ECN staff pursuant to the accepted portions of the IEP. (BSEA-1)
7. Student continued to receive weekly home-based speech and OT services under a co-treatment model from late June through mid-August 2005. Student made some progress during that time. He increasingly allowed therapists to touch his face for oral motor work, increased his vocalizations and eye contact, learned to use a cup, worked on biting a cracker, and consistently used PECs to request Cheese Nips and activities. (Glennon, Carr, S-43)
8. During that same period, Student was also receiving home-based ABA services from ECN, which also worked collaboratively with Ipswich staff. (Glennon, S-43)
9. In July and August 2005, Dr. Rafael Castro, Ph.D., who had first evaluated Student in November 2004, conducted a neurodevelopmental re-evaluation at the Parent’s request. A neuropsychology fellow, Bonnie Schwartz, M.A. also participated in this evaluation. (Castro, S-42) Parent was concerned about Student’s progress and sought recommendations for services. Dr. Castro’s report reflects the July and August evaluation dates but is undated. According to the report, Parent informed Dr. Castro that Student was getting 8 to 10 hours per week of ABA from ECN, one-half hour of speech and OT and was not participating in the school inclusion portion of his program because of health issues. (S-2)
10. The report notes that the level of Student’s services had diminished since the prior evaluation, that he had made gains with more intensive behavioral services and, according to Parent, had regressed somewhat since services had been reduced. The report further notes that Parent was attempting to reach agreement with Ipswich on Student’s IEP. (S-2)
11. The evaluation showed little progress since the previous evaluation nine months earlier. Student demonstrated nonverbal problem solving, social-emotional and play skills that were below the one-year level. Receptive and expressive language were at the five to six month level. Daily living skills ranged to slightly above the one-year level. Student was generally self-focused, and continued to exhibit repetitive, stereotyped behaviors such as tapping and shaking objects and gazing at lights. These behaviors interfered with Student’s ability to attend to learning activities. The evaluators found it difficult to engage him in testing and to find activities or objects that were strongly motivating or reinforcing for him. On the other hand, Student was able to learn from behavioral modeling, showing “the potential ability to benefit from behavioral methods of teaching,” reportedly was learning how to communicate using PECS and photographs, said a few words, and was eating a few solid and finger foods. (S-42)
12. Dr. Castro and Ms. Schwartz recommended a full day, full year, 30 hours, five-day per week program with at least 25 hours of 1:1 discrete trial ABA instruction as the primary component, with the training initially focused on foundational skills. (attention, eye contact, sustaining effort, etc.) and reducing interfering behaviors. Also recommended were a home-based behavioral component, and continued speech-language and occupational therapy. Overall most services should be 1:1 until Student develops enough skills to benefit from interaction with typical peers. (S-42)
13. Dr. Castro and Ms. Schwartz further recommended supervision of teachers by a Master’s level professional with expertise in autism and credentials in the field of ABA, who would also oversee the home program and coordinate home and school services as well as training of teachers in ABA and discrete trial teaching. (S-42)
14. Ipswich apparently did not receive the Castro report until May 2006, some 5 to 6 months after the evaluation. (Madeiros)
15. On or about August 15, 2005, Parent terminated the home-based ABA services that Ipswich had been providing through ECN because of concerns she had about ECN staff attendance, scheduling, and methods. (S-39, 40, 41) Some of these issues had been addressed at the prior hearing. (BSEA-1, pp. 21-24)
16. Parent also made new allegations, specifically, that ECN staff did not show up for work, that scheduling was inconsistent, that ECN conducted ABA in an “untraditional” manner, that ECN focused on sensory issues, that a “restraining chair” was used or proposed, and that therapists came to the home while ill. (S-39)
17. Director of Pupil Personnel Services Diana Minton, Winthrop School principal Carolyn Davis, Winthrop School TEAM leader Margaret Madeiros, and attorney Mary Gallant all contacted Parent by telephone and/or in writing to express concern about termination, and respond to some of the Parent’s complaints. Ipswich staff made several attempts to schedule a meeting with Parent to address her concerns but Parent declined, stating that she thought such a meeting would not be in Student’s best interest. (S-30)
18. Ipswich ultimately held a meeting on August 31, 2005, but Parent did not attend. (S- 40)
19. ECN agreed to reserve Student’s slot in the ABA program for a period of time. (Smith, S-40)
20. On September 6, 2005 the decision issued in BSEA 05-3855. The Hearing Officer ruled that the IEP issued on January 28, 2005, with some modifications, was reasonably calculated to provide Student with a free, appropriate public education. The decision also urged Parent to allow Student to participate in both the home and school-based components of Ipswich’s proposed program. (BSEA-1)
21. On September 16, 2005, Ipswich convened a team meeting to amend the IEP issued on January 28, 2005 to conform to the decision in BSEA 05-3855. (S-38)
22. The September 2005 amendment to the 1/28/05 IEP provides for
· monitoring the noise and distraction level in Student’s designated classroom area,
· cleaning all toys and space with a product like “”Sun and Earth Cleaner,”
· introduction of one child to Student’s space for one or two minutes to begin integrating Student with the Enhanced Preschool,
· quarterly monitoring of program by a Board Certified Behavioral Analyst (BCBA) consultant from ECN,
· updated speech/language benchmarks, and
· reintroduction of a Rifton chair for tabletop ABA activities. (S-38)
The Parent neither accepted nor rejected this amendment. (S-38)
23. Parent did not send Student to school for the remainder of the 2005-2006 school year, and did not accept ECN services at home or school during this period. (September 2005 through May 2006) In early October, ECN Director Laurie Smith informed Parent that ECN had arranged for Student to receive all of his ABA services from a single therapist, in order to address Parent’s concern that Student had too many different therapists. The record does not reflect Parent’s response, but she did not accept ABA services at that time. (S-36)
24. During September and October of 2005, Ipswich provided OT and speech/language consultation to Parent in the home. Initially, Parent declined direct services because she felt this was inadvisable in the absence of a full program, and agreed only to consultation. Parent agreed to some direct speech/language and OT services beginning on or about October 17, 2005. (Glennon)
25. Student made some progress during September and October, showing some improved ability to make eye contact, vocalize, and interact. Kristine Glennon, Student’s speech therapist from Ipswich who had been working with Student since he left Early Intervention, felt that Student’s communication skills were better than the 5-6 month level reported by Dr. Castro, in that she saw skills up to the eleven-month level. Ms. Glennon attributes the lower scores seen by Dr. Castro to the unfamiliar setting of the doctor’s office. (Glennon, S-37)
26. At all relevant times, Student has been a subject in a research study on autism conducted by the Boston University School of Medicine. In mid-October 2005, the Boston University program evaluated Student. (He had undergone a similar evaluation one year before, in October 2004) Student underwent a diagnostic assessment (designed to determine whether Student met formal diagnostic criteria for autism) and a developmental assessment. The diagnostic assessment confirmed that Student met the behavioral criteria for autistic spectrum disorder. (S-34)
27. The developmental assessment, which consisted of the Mullen Scales of Early Learning, Vineland Adaptive Behavior Scales, and MacArthur Communicative Development Inventory, showed Student had made gains one to six months in all areas assessed in the previous year. The report from the developmental assessment cautions, however, that “[t]his research evaluation is not intended to take the place of a formal clinical assessment. We use a restricted set of tasks selected specifically for this study, which may capture some but not all of your child’s abilities. In addition, the tests are administered by trained research assistants rather than by licensed clinicians directly.” (S-34)
28. An OT progress report issued in November 2005 indicated that Student had started to achieve the following three (out of ten) IEP objectives: he had begun to respond to the command “stand up” with a physical prompt, to search for Mother when presented with a photo of her and asked “where’s mom?”, needed full physical prompts to wave “bye-bye.” The speech/language progress report showed that he was making progress in smiling when spoken or sung to, increasing babbling, reaching for desired items, and seeking attention with physical contact and some eye contact. (Carr, S-32)
29. In December 2005, Ipswich stopped paying to have ECN hold an open slot for Student, and so informed the Parent in a letter dated December 16, 2005. (Smith, S-30)
30. On December 15, 2005, Ipswich issued a notice of a TEAM meeting to develop a new IEP for Student, as his then-current IEP would be expiring in mid-January 2006. (S-28)
31. In a telephone message to speech therapist Kristine Glennon, Parent indicated that she had accepted ABA services but did not want to receive them from ECN because she felt that ECN had harmed Student; and that she did not want to have a TEAM meeting during ongoing litigation. (At that time the appeal of the prior decision was pending in Essex Superior Court.) (Glennon, S-29)
32. Ipswich convened the TEAM meeting on January 11, 2006, without Parent, and developed a proposed IEP for January 2006 through January 2007. This IEP was similar to the preceding one, and called for a full day, full week combined home and preschool program comprising speech/language, occupational and physical therapy, 24 hours per week of ABA therapy (10 hours at home, 14 hours in school) provided by ECN and Ipswich staff, short (five minute) periods of inclusion experience 4 days per week, and 5 hours per week of consultation to Parent and teachers. Parent did not respond to the proposed IEP. (S-28)
33. During the spring of 2006, Parent and Diana Minton, Ipswich’s Director of Pupil Personnel Services, had approximately three conversations regarding Student’s IEP and services, and why Parent was not signing the proposed IEP. In general, the disputes centered on Parent’s dissatisfaction with ECN as provider of ABA services (Parent felt that ECN did not appropriately serve Student and the School asserted its right to select duly qualified employees and vendors), and Parent’s allegation that there were untrue statements in the IEPs that precluded her from signing them. On several occasions, Ipswich offered meetings with its own staff as well as ECN director Laurie Smith3 to review the IEP and address Parent’s concerns about ECN services. (S-24) It is not clear whether any such informal meetings ever took place.
34. On April 5, 2005 the TEAM convened again, this time with Parent in attendance, in order to discuss concerns about the IEP. (Glennon, S-25) Apparently no IEP or amendment was issued.
35. In a letter dated May 5, 2006, Parent informed Ipswich that she would accept the proposed IEP on the condition that it incorporate various changes, and stated that she wanted Student to begin attending the program on May 8, 2006. (S-23)
36. On May 18, 2006, after a mediation session with a BSEA mediator, the parties executed an agreement stipulating that while the parties awaited an observation and report by Dr. Castro, Ipswich would schedule and provide ABA, speech/language, PT, and OT services, would arrange for a Board Certified Behavioral Analyst (BCBA) consultant to observe Student in his school program, would inform Parent of schedules, and would reconvene the TEAM in June 2006 to consider the reports of Dr. Castro, BU, ECN, and the BCBA consultant. Meanwhile, the goals and objectives of the IEP covering January 2006 to January 2007 would be in effect. (S-22)
37. On May 26, 2006 Ipswich’s Program Manager, Margaret Madeiros, notified Parent that between June 2, 2006 and the week of June 26, 2006, ECN would gradually increase the hours of ABA service to Student up to approximately 20 hours per week (4 hours per day, evenly divided between home and school). (S-21) Student’s direct ABA services would be provided by Meaghan Andrews, who would be supervised by Christine Parker, both of ECN. At a later point an additional therapist, Reagan Cassidy, would be added.4 Ipswich had particularly chosen Ms. Parker to supervise the therapists because Parent had previously indicated that she had a good relationship with her. (S-15; Cassidy) The plan also provided for a consultation by a BCBA. (S-21)
38. Student began participating in Ipswich’s program as outlined above in early June 2006. Between June 1 and June 13, 2006, Student received approximately 22 hours of home and school based ABA services from Meaghan Andrews. (S-14, Madeiros) Initially Student had some difficulty adjusting to the demands of school, but over time cried less and seemed happier. (S-7)
39. On June 13, 2006, Parent removed Student from school after observing Student crying while Ms. Andrews was bouncing him on an exercise ball. (Madeiros, S-16, S-9)
40. According to the Parent, Student was “suffering an asthma attack while being vigorously bounced on a ball in the OT room. [Student] was crying and under duress from trouble breathing.” (S-16, Parent’s letter to Winthrop School principal Caroline Davis; undated, faxed 6/16/06.) Parent claims she previously had advised the therapist, Ms. Andrews, that Student was having breathing problems and should not be physically active that day. (S-9)
41. There are three documents in the record that provide Ipswich’s version of events.
· First, the School’s exhibits include an unsigned typewritten document, dated June 13, 2006, that from its content appears to have been written or dictated by Meaghan Andrews, or prepared from other written or oral statements she may have made. (S-19) According to this report, Parent said Student’s asthma had been “acting up,” but did not mention exercise when she dropped Student off at school. Student was whining intermittently throughout the morning ABA session, and repeatedly chose the exercise ball as a reinforcer, as he often had on other occasions. Ms. Andrews bounced Student on the ball. Ms. Andrews had watched Student for signs of asthma throughout the day and “did not hear any wheezing, coughing, see any signs of labored breathing or lethargy, just the whining…” (S-19)
· Second, Ipswich has submitted an unsigned typewritten chronology of events regarding Student entitled “Documentation,” which from the context, appears to have been written by Program Director Margaret Madeiros. (Madieros) This document states:
June 14 th [Parent] called about issue with Megan [sic](occurring 6/13) stating that M. did not follow her instructions to not engage him in physical activity. [Parent] stated that when she picked him up [Student]. was bouncing on a rubber ball and was crying and that Megan did not stop bouncing him. This aggravated his asthma which was something she had stated to Megan in the morning that she wanted to avoid and stipulated that he was to have no physical activity. [Parent] did not want Megan working with [Student] anymore—does not trust her now, etc. I told [Parent] that M. was the therapist and that we needed to hear her side of the issue and that a “Care Plan” would be developed [with the school nurse] for Student stating what physical activity he could engage in…Communication with Megan is in progress at this time. The next step will be to meet with [Parent] on Monday, June 19 th to communicate to her that M. was following an activity used at home and in school…Due to the fact that [Student] was not exercising but was being bounced by M. it seemed to be an appropriate activity…June 16 th talked with Megan…See attached email from Megan documenting the incident.”5
· The third document in the record is a letter to Parent from Ipswich’s attorney dated June 21, 2006 reiterates that Ipswich staff had observed no signs of respiratory distress in Student on June 13, reiterated that bouncing on the ball was a passive activity in that the therapist, not Student, had bounced the ball, and offered to work with Student’s pediatricians to address asthma concerns. The letter also states that the school nurse had observed part of the ball-bouncing activity, and had noted that Student seemed to be enjoying it. Finally, the letter also stated that Ipswich, not Parent, had the right to choose Student’s service providers, that the ECN providers chosen were appropriately qualified, and so Ipswich had fulfilled its responsibilities. Ipswich would honor Parent’s request not to work with a particular employee but would not seek alternative providers and service hours would be reduced. (S-15) A second letter from School’s counsel clarified that in this case, by refusing services from Meaghan Andrews, Parent would cause Student’s total ABA services to be reduced from 20 to 9 hours per week. (S-15)
42. The record contains no document purporting to be a formal incident report regarding the events of June 13, 2006, written either by Ipswich or ECN staff. There similarly is no record of an investigation. Neither Ms. Andrews nor the school nurse, who are the only school or ECN personnel with first-hand knowledge of the incident, testified at the hearing.
43. On the other hand, Parent presented no medical documentation that Student’s asthma episode of June 13, 2006 (the occurrence of which is not disputed) was caused or worsened by physical exertion in general or the exercise ball in particular.
44. According to Parent’s letter of June 16, 2006, quoted from above, she left messages for Ms. Davis and Ms. Madeiros on June 13, 14, and 15 regarding this incident, and eventually spoke to Ms. Madeiros, who supported the therapist’s actions. In that same letter, Parent stated that she “told Margaret [Madeiros] that I could not have [Student] work with therapist that hurt him.” (S-16) From this letter and conversations with various staff members, Ipswich understood that Parent had “fired” Ms. Andrews, and informed Parent, via a letter from its counsel, that it would not seek a substitute provider for Ms. Andrews; therefore, Student’s ABA services would be reduced to 9 hours per week. (Madeiros, Smith, S-16)
45. From June 13 through approximately August 2006, Student received approximately 9 hours per week of ABA therapy, as well as speech-language, OT, and classroom services. (S-8 –S-17) Services were provided both at home and at school and were both direct and consultative. Student’s remaining ABA therapist from ECN was Reagan Cassidy. (Cassidy, S-8, S-17) Ms Cassidy’s supervisor, Christine Parker, frequently was present for Student’s sessions with Ms. Cassidy. Throughout the summer, Parent and School employees were in regular contact over the details of Student’s program. (S-8)
46. On July 7, 2006, pursuant to the Mediation Agreement, Susan Maselli, who is a Board Certified Behavioral Analyst (BCBA)6 associated with ECN, observed Student during one discrete trial session conducted at Student’s preschool program. Ms. Maselli also interviewed three staff members: Regan Cassidy and Christine Parker from ECN and Kristine Glennon, Student’s speech therapist from Ipswich. (Maselli, S-12)
47. During the session itself, which Ipswich described as typical, and lasted about two hours, programs conducted included imitation, “look,” cause-effect (shape sorter), matching 3-D objects, manual sign for “more,” use of reinforcer following table top activit6y, PECS exchanges for preferred objects in an array of one or two preferred preferred choices, and gross motor imitation. Both errorless learning/discrete trial principles and naturally occurring learning opportunities were used. (S-12, Maselli)
48. Ms. Maselli found that Student readily worked with staff and was especially connected to Ms. Cassidy, who used a “soothing, nurturing, enthusiastic tone,” to which Student responded well. Ms. Parker gave instructional feedback to Ms. Cassidy during the session and Student “happily responded to the combination” of their efforts. (S-12)
49. Overall, Ms. Maselli was highly impressed with the quality of the session she observed. She commented that both ECN staff and Ipswich had a “wonderful working relationship” with Student, and stated that Student was “lucky to have such dedicated staff working with him.” (S-12)
50. Ms. Maselli made some recommendations for “fine tuning” Student’s program, including focusing primarily on language and imitation skills, as well as emerging pre-attending skills, by, among other things, formally teaching PECS or a similar system in a step-by-step manner with data gathering, maintaining a total communication approach and working on manual signing skills, and adding home and school imitation sessions. Ms. Maselli also suggested considering a comprehensive sensory diet. (S-12)
51. Student’s providers found that he made some progress over the summer of 2006. During the month of July, Student’s speech/language therapist and ABA therapist both noted that Student was more consistently following objects with his eyes, looking for hidden reinforcing items when asked “where is it?,” responding to “look,” and maintaining eye contact with adults. He was varying his vocalization patterns and was vocalizing to express emotion. He had increased his ability to bite crackers. (Glennon, Cassidy, S-10) By mid-August, Student was increasing his ability to search for sounds and look at people speaking to him, was increasing his vocalizations, and learning to retrieve a particular picture from a field. (S-8)
52. On or about August 16, 2006, Parent obtained an updated neurodevelopmental evaluation from Dr. Castro. This evaluation consisted of a review of documents, including the proposed IEP and the report of Susan Maselli, clinical observation of Student, interview of Parent using standardized instruments, and attempts at standardized testing of Student. (P-1, Castro) Dr. Castro observed that Student seemed noticeably larger and healthier than he had at his 2005 evaluation. On the other hand, Dr. Castro found that Student had made little or no progress in the past year. On the contrary, Dr. Castro noted “a regrettable worsening of the child’s situation, despite the fact that his medical condition has improved.” (Castro)
53. More specifically, Dr. Castro found that there is “a worsening of the behavioral presentation,” including “more in the way of stereotypical behaviors.” (Castro) During the evaluation, Student had great difficulty participating in tabletop activities, and had an “extremely limited” ability to remain seated. (P-1) He “preferred to engage in self-stimulatory, repetitive behaviors such as looking at the lights, vocalizing, jumping, and flapping.” He could briefly direct his attention and complete some tasks but only with hand over hand assistance. Student’s social and communication skills were limited, in that he could seek Parent’s attention and respond positively to affection from her, but had “fleeting eye contact and reciprocal interactions. (P-1)’
54. Dr. Castro found that Student’s short attention span, narrow set of interests, and resistance to adult-guided tasks interfered with his ability to participate in standardized testing on even the most rudimentary level. For example Student mouthed large puzzle pieces or visually tracked them in a stereotyped manner. When offered a task that replicated some programs he was working on (such as matching objects), Student was unable to perform it. (P-1) Based on the testing, Dr. Castro concluded that “[Student’s] developmental standing, with the exception of his gross motor abilities, remains…at levels that are similar to those observed when initially evaluated at age 2 and which fall well below the 12 month cut-off. This…reveals a very reduced advancement over time…” (P-1)
55. To assess Student’s language and socialization skills, Dr. Castro interviewed Parent using the Vineland Adaptive Behavior Scales-Second Edition . Based on this interview, Student’s functional use of receptive and expressive language was estimated below the one-year level. Receptively, Student occasionally understood negation, was unreliable in responding to his name, did not consistently understand words for familiar objects, and could not receptively label body parts or follow simple commands. Expressively, Student was non-verbal but was doing frequent jargoning and random vocalization, mostly of vowels. He was relying on crying, whimpering, and pulling on adults to get his needs met, did not yet point, but was being taught PECS and was able to exchange a card to get help. He could make a sound and gesture for “more” at school but not at home. (P-1)
56. Like his language skills, Student’s social skills were below the one year level. While affectionate with Parent and teachers, he had little interest in peers, had reduced imitation skills, did not play with functionally with toys, and could not participate in games without much adult support. (P-1)
57. Dr. Castro concluded that Student remained at the severe end of the autism spectrum, in that his cognitive and adaptive functioning all fell below the one-year level, and that he also had regulatory difficulties. Dr. Castro also stated, however, that Student is “a young boy described by all involved in his care as a generally content child who can cooperate and acquire new skills when under the right circumstances. He has also been responsive to highly structured, positive, calm and caring environments.” (P-1)
58. In his testimony and report, Dr. Castro attributed Student’s decline in performance in part to his “inherent condition.” (Castro) Dr. Castro also commented, however, that “it is regrettable, without being in the position to ascribe fault to any of the parties, to learn that [Student] is not being served at this point with the level of services that had been agreed upon last year and which he so desperately needs.” (P-1)
59. Dr. Castro recommended approximately the same services that he had recommended the previous year, i.e., a full-day, fully year center-based program for children on the autism spectrum, with at least 30 hours per week of ABA, 20 to 25 of which should be discrete trial teaching. Much of the school-based teaching should be in a 1:1 setting. As previously recommended, Student’s program should provide direct and consultative speech/language, and OT services to address language, fine motor, and self-care skills, and at least 10 hours of home-based services. Recommended changes included increased focus on reducing stereotypical behavior, increasing the expertise level of persons supervising his program, providing additional behavioral support in the home to ensure safety (as Student was now more mobile but still impulsive and lacking in judgment around safety issues), and providing a feeding program within the center-based program. (Castro, P-1)
60. Dr. Castro agreed generally with the amount and configuration of services proposed in Student’s most recent proposed IEP, and further recommended a 12-month program with no more than a week at a time without services and as much staff continuity as possible. (Castro, P-1)
61. At the time of his testimony, Dr. Castro had not yet observed Student’s program,7 and had not spoken with any Ipswich or ECN personnel. (Castro)
62. When asked whether Student required an outside placement in order to receive the services recommended, Dr. Castro stated that although the level of service and credentials of staff that Student needs might not be able to be provided in a public school setting, he did not know that this was the case for Student and therefore could not state that an outside placement is necessary at this time. (Castro)
63. As ordered, the TEAM met on September 26, 2006 to consider the reports of Ms. Maselli and Dr. Castro. Parent attended for part of the meeting, and then left. (S-2) Ipswich’s providers disagreed that Student had made as little progress as Dr. Castro had stated, and attributed Student’s poor performance at the evaluation to the unfamiliar setting and test instruments as well as to Student’s loss of services as a result of Parent refusing to accept them. (Glennon, S-2) In the TEAM’s view, as incorporated in the IEP of September 2006 discussed below, Student has made significant progress, particularly in light of his inconsistent participation in a formal educational program. The Team (Glennon)
64. On June 30, 2006, Ipswich issued a proposed IEP covering the 9/22/06 to 6/30/07. This IEP calls for a full-day, full-week intensive preschool program with services provided at the Winthrop Elementary School and at home. The service delivery grid calls for 5 hours per week of consultation services (4 hours in school, one at home) in speech/language, ABA, PT and OT; 30 minutes per week of group PT in school, 4, 5 minute sessions of integration experience in the preschool setting; and the following direct services outside of the classroom: speech therapy–1 hour each at home and in school; ABA therapy—10 hours per week at home by ECN, 10 hours per week in school with 2 staff (ECN and Ipswich) and 7.5 hours per week at school with one ECN therapist; sensory/fine motor—30 minutes/week in school and 60 minutes/week at home. The total number of ABA hours is 27.5 per week.
65. The IEP goals are (1) cooperation and reinforcer effectiveness; (2) play/classroom; (3) receptive language; (4) expressive language; (5) imitation; (6) PT; (7) OT ; and (8) ADL, including removing coat, hat, and shoes and increasing the variety of foods he eats. (S-1)
66. Accommodations include a home/school communication book, a 1:1 or 2:1 staff to child ratio at all times, nurse available in school to monitor asthma, monthly home visits by classroom staff, use of music for self-soothing, ABA programming, sensory integration activities throughout the day, monitoring of noise and activity level in school, monitoring of school program by a BCBA; transdiciplinary communication to ensure carry over, co-treat model for speech/language and OT, regular feedback and communication to Parent from school and BCBA. (S-1)
67. The IEP does not contain explicit provisions for a formal feeding program (or evaluation for same) or for a formalized care plan for Student’s asthma; however, Ipswich has been ready to institute such programs at all relevant times, and has sought Parent’s permission to do so. (S-2, S-4)
68. As of the hearing date, Parent had not responded to this proposed IEP, but argued for outside placement at Melmark for Student. There is no evidence on the record of any kind regarding the Melmark program or its alleged suitability for Student.
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that Parent has not proved8 that the program and services offered by Ipswich are inappropriate, or that Student requires doctoral level supervision of his ABA program or placement in a private facility (Melmark) in order to receive a free, appropriate public education. (FAPE). My reasoning follows.
The Parents and School agree that Student is a child with significant disabilities9 who is entitled to a free appropriate public education (FAPE) as defined in federal and state law.10 The parties also agree, generally, that Student needs a full-day, full year, intensive, specialized program designed for children on the autism spectrum, that will help him develop his skills in all domains: language-communication, cognition, self-care, social-emotional, play, fine and gross motor, and behavior. Further, the parties agree that 1:1 or 2:1 ABA/discrete trial training should be the central focus of that program, which also should include OT, PT, speech/language therapy, a home component, use of PECS, and other visual means of communication (such as photos, objects, and manual signs), a feeding program, and slow, incremental exposure to typical peers. The parties do not dispute that the current IEP proposed for Student contains most or all of these elements, either as it stands or with minor modifications.
The parties disagree on the necessary credentials of the service providers. Parent takes the position that a Ph.D.-level behavioral psychologist must be responsible for overall supervision of Student’s program, and that there also must be an on-site full-time Masters-level behaviorist. Parent further argues that professionals with these credentials can only be found in a private placement, specifically, Melmark.
For her argument that Student’s behavioral program requires doctoral level supervision, Parent relies on the August 2006 report of Dr. Castro, as supplemented by his testimony at hearing. Dr. Castro bases his recommendation in this regard on the severity of Student’s disability and his apparent lack of progress between the time Dr. Castro had seen him in November 2005 and the evaluation of August 2006. (P-1, Castro) At the time of his testimony, however, Dr. Castro had not reviewed Student’s current IEP, had not observed Student at home or in school, and, significantly, did not have current information about when and how often Student had actually participated in Ipswich’s program, or how he had responded to same. These factors diminish the weight I give Dr. Castro’s recommendations on the required credentials of service providers. In fact, the record reflects that Student had not received anything close to the full complement of offered services until early June 2006, and that by June 13, Parent had once again reduced the amount of ABA Student was receiving. The record also reflects Student has responded positively to whatever services he has received from Ipswich or ECN, indicating that he derived some educational benefit from those services. See Burlington v. Mass. DOE , supra . The reasonable inference to be drawn from these facts is that Student’s performance with Dr. Castro in August 2006 would likely have been better if Student had been receiving all services offered, and this might have affected Dr. Castro’s recommendations.
On the other hand, there is no real dispute that Dr. Castro’s conclusions as to the general nature of Student’s disability (even though Ipswich experiences Student functioning at a higher level than Dr. Castro) and general recommendations for his educational program are credible and appropriate In fact, but for the recommendations regarding supervisory credentials, the IEP for 2006-2007 that Ipswich developed in September 2006 as well as prior IEPs incorporate most or all of Dr. Castro’s key recommendations. The central feature of each IEP since January 2005, including the IEP issued in September 2006, has been ABA/discrete trial training as well as speech/language therapy and OT, all focusing on the same goals—attending skills, communication, and ADL, among others—that Dr. Castro has recommended. In fact, in his report of August 16, 2006, Dr. Castro endorsed most of the then-current IEP. (P-1, Castro)
Susan Maselli, the BCBA who observed Student in one of his ABA sessions, also approved of the ABA component of Student’s program, although she made some suggestions for fine-tuning service delivery. Ms. Maselli also noted the good relationship between Student and the service providers whom she observed. In fact, Parent has presented no witness or document that indicates that either the IEP or the placement and services for Student are inappropriate. (Maselli, S-12)
An IEP satisfies the FAPE standard if it is reasonably calculated to enable the eligible child to make meaningful progress in areas identified as special needs. See Rowley , Burlington , and Lenn , supra. The September 2006 IEP, as well as prior IEPs, meet this standard. Each such IEP addresses areas of need that are undisputed: foundational skills such as attending and imitation, functional language and communication, fine and gross motor skills, socialization and play, and self-care. Moreover, each IEP provides the services (ABA, OT, speech therapy, a home component) that Ipswich, Parent, and their respective evaluators agree that Student needs, at a level of intensity and frequency that Parent’s expert, Dr. Castro, approves. (P-1, Castro) Finally, as discussed above, Student has made documented progress with only partial implementation of the IEPs and will likely make more with full implementation. Thus, the evidence on the record demonstrates that the proposed IEP of September 2006 is reasonably calculated to provide Student with FAPE.
In this case, however, the heart of the dispute is not the services set forth in the IEP but rather Parent’s lack of confidence in Ipswich’s providers, particularly the ABA therapists and supervisors provided by ECN. Parent has contended that ECN staff did not show up for work, did not maintain consistent schedules, used “untraditional” methodologies, showed up late, or came to work when ill. (See Finding of Fact #16) Ultimately, Parent terminated ECN’s services in mid-December 2005. (Id). After TEAM meetings and mediation, during April and May 2006, Parent agreed to allow Student to start receiving services from Ipswich and ECN beginning in June 2006. However, after the incident of June 13, 2006 described above, Parent once again terminated some of ECN’s services, alleging that ECN providers had jeopardized Student’s health and safety. One rationale for Parent’s request for a private placement is her view that Student will not be safe in Ipswich’s program.
Ipswich has made attempts to respond to Parent’s concerns, offering meetings, changing individual therapists and supervisors, and seeking information about Student’s medical concerns so that the School can develop a health care plan if needed, but has firmly held the position that Parent cannot dictate who provides services, as this is within the school district’s purview.
The IDEA provides that school districts, not parents, have the right and responsibility to determine who provides special education and related services to eligible students. See Roland M. v. Concord School Committee , 109 F.2d 983 (1 st Cir. 1990 ); Rowley , supra; Lenn, supra , at 998F.2d 1091. As long as the provider is qualified, a hearing officer may not interfere with a school district’s decisions regarding assignment of service providers, and may not impose credentialing requirements in excess of those required by the relevant regulatory body. The only exception is where a child’s unique needs are such that different or higher credentials are required to provide FAPE. Id .
Further, a hearing officer is not in a position to second-guess a school district’s choice of vendor unless a particular child’s right to FAPE is implicated. Thus, a situation where a parent complains that employees of a vendor (or school employees, for that matter) lack skill or experience despite meeting minimum requirements, have poor judgment, interpersonal skills, or the like, or have other personal or professional characteristics that negatively affect the quality of their work, is beyond the reach of the hearing officer, unless the child’s right to FAPE is affected.11
In this case, the relationships between Parent and both Ipswich and ECN have been conflictual. However, the record simply does not establish that ECN, by its actions or failures to act, has deprived Student of FAPE. ECN has implemented programs in areas of Student’s need, and Student has made progress working with ECN therapists.
Parent, understandably, has focused a great deal of attention on the incident of June 13, 2006, which ruptured her already tenuous trust in ECN. And the record does not reveal what process Ipswich and ECN used to investigate the incident and take corrective action, if warranted, other than to interview the therapist and possibly the school nurse. Ipswich did offer Parent an opportunity to discuss the incident and, more importantly, to develop a care plan for managing Student’s asthma in school. However, the record indicates that once the therapist (and possibly nurse) had been interviewed, the matter was closed from Ipswich’s point of view. This is not to imply that Ipswich or ECN committed any wrongdoing in this regard; however, a more transparent process might have reduced the tension between the parties.
Notwithstanding the Parent’s distress over the incident, however, she has provided no independent medical evidence that Ipswich’s and ECN’s actions on June 13, 2006 caused or worsened Student’s asthma attack or otherwise deprived Student of FAPE. Services continued to be available to Student. Parent’s action in “firing” one of the ECN therapists led to a reduction in service, but Parent had opportunities to maintain service at the same level had she been willing to work with Ipswich on developing an asthma care plan for Student rather than abruptly terminating service with Ms. Andrews.
In general, the evidence at hearing supports a conclusion that Ipswich’s proposed IEP for 2006-2007 is appropriate, with modifications that will be discussed below. Parent has not presented sufficient evidence to show that Ipswich’s IEP and services are inappropriate, or are not reasonably calculated to provide Student with FAPE. Rather, the overwhelming weight of the evidence supports the conclusion that Ipswich’s program can provide Student with a free, appropriate public education. Because the School’s program is appropriate, I need not further evaluate Parent’s request for doctoral level supervision of Student’s ABA services or for an outside placement. I note, however, that the evidence presented in support of the first claim cannot be given weight for reasons discussed above. As for the claim for placement at Melmark, Parent has presented no testimony or documentation supporting removal of Student from the public school setting, and no evidence about Melmark itself or why it is appropriate for Student.
ORDER
Ipswich shall immediately implement the 2006-2007 IEP that was produced in September 2006, with the following modifications:
Upon receipt of appropriate medical documentation and/or releases from Parent:
1. Ipswich shall propose a formal evaluation of Student’s feeding issues, shall convene a TEAM meeting to address same, and shall offer an IEP amendment, if appropriate, to incorporate goals, objectives and services relative to feeding;
2. Ipswich shall, with input from Parent, Student’s health care providers and the school nurse, develop an asthma care plan for managing Student’s asthma in school..
Parent is urged to provide such documentation and /or releases immediately. Parent is further urged to allow Student to fully participate in the program and services that, in the words of Parent’s expert, Dr. Castro, he so desperately needs, and from which he clearly benefits.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”
2
This motion was treated as one to order an outside placement prior to issuance of a full decision on the merits.
3
Ms. Smith is the co-founder and director of educational programming for ECN. She has a M.Ed. in moderate special needs, has been involved in teaching, providing therapy for, and running programs for students on the autism spectrum since approximately 1990. Ms. Smith has also presented numerous lectures on the subject of teaching children with autism. (S-44)
4
Christine Parker has a BS degree in communication disorders, and in addition to other work experience, has been a classroom teacher at Melmark School, where she conducted discrete trials and developed experience with ABA. Reagan Cassidy had been working with ECN for approximately one year at the time of hearing. as an intervention therapist, doing ABA and floortime therapies with children. She has a BS degree in psychology and, at the time of hearing, had approximately one school year and two summers of experience working with students with PDD/autism as a paraprofessional. (S-44)
5
The email referred to does not appear in the record.
6
Ms. Maselli has a Master’s degree in special education, with a certification in intensive special needs. She became a BCBA in 2005. Ms. Maselli has approximately eleven years of experience as a special education teacher, mainly with children on the autism spectrum. In her last two jobs she oversaw provision of all ABA services in Marblehead and Natick. (Maselli)
7
The parties have agreed that such observation would be helpful but the visit has been difficult to schedule. (S-17)
8
Pursuant to the U.S. Supreme Court’s recent decision in Schaeffer v. Weast, 546 US___(2005), the moving party in a special education case has the burden of persuasion. Here, the Parent must prove that Ipswich’s proposed IEP for 2006-2007 is not reasonably calculated to provide Student with FAPE.,
9
There is no dispute that Student has been diagnosed with autism spectrum disorder accompanied by significant delays in nearly all skill areas, and that Student also has feeding difficulties and asthma. The School argues that Student has also been diagnosed with mental retardation; however, the record does not reflect any formal diagnosis to this effect.
10
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401 (as amended by IDEA-2004). The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
11
See In Re Worcester Public Schools , BSEA No.05-2957 (Sherwood, 2005). In that case, ABA therapists lacked experience in serving children with autism, lacked the requisite skill, and knowledge, and coordinated approach to effectively deal with a child’s self-injurious behavior, and was not provided with supervision and training. However, the district corrected the problems in a new IEP, which the hearing officer found to be appropriate.