COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: King Philip Regional School District
BSEA # 12-0783
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on November 18, 2011 in Malden, MA, and on November 22, 2011 and December 8, 2011 in Worcester, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
William Knight Deputy Superintendent for Community Programs,
Norfolk County Sheriff’s Office
Leslie Deutchman BCBA, Apex Behavioral Consulting
Scott Sokol Pediatric Neuropsychologist, Private Practice
Anela Bolfek1 Psychiatrist, Bressler Center, Mass. General Hospital
Susan Connors2 Physician, Lurie Center, Mass. General Hospital
Nancy White Transitional Coordinator, Mass. Department of Developmental Services
Patricia Dennis BCBA, King Philip Regional School District (RSD)
Elena Varney Transitions Coordinator, King Philip RSD
Ashley Dorion School Psychologist, King Philip RSD
Barbara Collins Out-of-District Coordinator, King Philip RSD
Audrey Lacher Director of Special Education, King Philip RSD
Jason Prozzo Teacher, South Coast Educational Collaborative
Francis Gallishaw Principal, South Coast Educational Collaborative
Kristin Aylward School Adjustment Counselor, South Coast Educational Collaborative
Ginny Brennan Advocate for Parents and Student
Regina Williams Tate Attorney for King Philip RSD
Brenda Genisi Court Reporter
Amy Rumbo Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-35, except P-27; documents submitted by the King Philip Regional School District (King Philip) and marked as exhibits S-1 through S-82; and three days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due (and were received) on January 9, 2012, and the record closed on that date.
ISSUES
The issues to be decided in this case are the following:
1. Is the individualized educational program (IEP) most recently proposed by King Philip reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would placement at a residential, educational school (and, specifically, the Amego School) satisfy this standard?
STUDENT PROFILE
Student is a 21-year-old year-old young woman who lives with her Parents in Plainville, MA. Testimony of Mother; exhibits S-5, P-1.
Student is humorous and affectionate. She is also mild-mannered, cooperative and generally happy. She enjoys school and various activities during the school day (including, in particular, swimming at the YMCA and her job site at Home Depot); she also enjoys watching television (particularly, listening to laugh tracks) and playing simple games on the computer. Testimony of Mother, Prozzo, Sokol, Deutchman.
Student is diagnosed with autism and significant cognitive limitations, together with a number of medical difficulties. Her most recent full-scale IQ test score was 48, falling in the Extremely Low category and meeting criterion for Moderate Intellectual Disability. Cognitive testing also reveals receptive and expressive language impairments, visual-spatial deficits, memory and learning limitations, and executive dysfunction. Student also demonstrates social withdrawal, difficulty with emotional control and self-monitoring, and social communication difficulties typical of autism. Student often speaks in one word responses, and occasionally engages in repetitive speech that sometimes is in context and at other times is not. Mother has been appointed Student’s court-appointed guardian by reason of mental retardation. Testimony of Sokol, Deutchman, Mother; exhibits P-9, S-6, S-47.
Student has a relative strength in verbal comprehension, receiving an index score of 63 on the Verbal Comprehension Index, and in language processing. She has a relative weakness in communication. As a result, she understands more than she is able to express. Testimony of Sokol, Deutchman, Aylward.
Student does best with hands-on, closed-end tasks, such as wiping appliances on display at her Home Depot work site. At all times, she needs visual supports and occasionally verbal prompts in order to complete tasks. She does best with a significant amount of structure. Student works well with others but needs prompting to help her initiate social contact. She knows her schedule at school. Testimony of Prozzo, Varney; exhibits P-10, S-13.
Through the Bridge Program, Student has been participating in a variety of work sites in the community. After completion of school, it is likely that Student will be able to access supported employment. However, Student will likely always require effective job coaching, as well as visual supports, to be successful. In addition, given her cognitive and developmental level, together with her attention limitations and problem-solving deficits, Student will also always likely require constant supervision to assure her safety in parking lots, at home and in the workplace. Testimony of Varney; exhibits P-5, P-15, S-7, S-11.
CURRENT IEP AND PLACEMENT
Currently and since February 2003, Student has been placed at the Bridge Program, which is a substantially-separate day program within the South Coast Educational Collaborative. Until April 2011, Parents had fully accepted proposed IEPs, including this placement. Through its most recently-proposed IEP, King Philip has proposed a continuation of this placement, which Parents have now rejected. Testimony of Mother; exhibits S-5, P-1.
The Bridge Program is a substantially-separate program that offers Student the opportunity to receive a variety of special education and related services. Student’s program focuses on learning functional academics (for example, learning about money, making purchases, and learning safety signs in the community) and activities of daily living. Student is taught in a small classroom setting (there are five students in her peer group) where students are grouped by age and cognitive ability. In terms of her educational abilities, Student falls within the middle of this group of students. Testimony of Prozzo; exhibits S-5, P-1.
Student’s most recent IEP also includes related services of occupational therapy (for a half hour, twice per week), speech-language services (for a half hour, twice per week), and social/emotional services from an adjustment counselor (for a half hour, twice per week). The IEP also calls for after-school services for two hours, four days per week, and extended year services of six and one-half hours per day for approximately eight weeks. Exhibits P-1, S-5. Student has been receiving essentially the same services for several years pursuant to accepted IEPs. Testimony of Mother; exhibits P-2, P-3, P-4, S-33.
A strength of Student’s IEP and the Bridge Program, in particular, is that they are vocationally oriented. The philosophy of this part of the program is to place students into work sites even before all of the necessary skills have been mastered. This has the advantage of not limiting the selection of placements so that students can be given a breadth of experience and exposure. Students are given the opportunity to learn skills on the job so that they grow into the job placement. Testimony of Prozzo, Varney.
LEGAL STANDARDS
Federal and State FAPE Standards
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)3 and the Massachusetts special education statute.4
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”5 Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.6 An IEP must be custom-tailored to address Student’s “unique” educational needs.7
As a general rule, FAPE mandates proposed special education and related services that are “reasonably calculated to enable [Student] to receive educational benefits.”8 This “does not imply that a disabled child is entitled to the maximum educational benefit possible.”9 Rather, within the context of FAPE, “[a]ppropriateness and adequacy are terms of moderation.”10
At the same time, however, on multiple occasions the Supreme Court has referenced a FAPE standard that a student is entitled to “meaningful access” to his or her education.11 Similarly, the First Circuit Court of Appeals and several Massachusetts federal district court judges,12 as well as other Circuit courts have utilized a standard of a “meaningful educational benefit”.13
In the application of these standards, federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child”14 because “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”.15 Thus, in sum, the “IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue.”16
FAPE is also defined by the IDEA to include state educational standards,17 which may exceed the federal floor .18 Massachusetts regulatory standards require that Student’s IEP Team “include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”19 Similarly, the Massachusetts Department of Elementary and Secondary Education-mandated IEP form requires a school district to include within each IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including, communication, behavior, language, and social/emotional needs.20 Massachusetts statutory standards further require that special education services be “ designed to develop the [student’s] educational potential” .21 And, the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”22 Thus, in sum, Massachusetts standards require that a proposed IEP include specialized instruction and related services designed to enable Student to make effective progress and develop his or her individual educational potential.
In the instant dispute, Parents are the moving party and have the burden of persuasion that the King Philip’s proposed IEP is not appropriate and that FAPE in the least restrictive environment can only be provided with a residential, educational placement, and specifically the Amego School.23
Transition Services Standards
Transition services are part of, and not separate from, a school district’s responsibility to provide a free appropriate public education or FAPE under the IDEA, discussed immediately above. And, transition services requirements do not change basic FAPE principles. Whether a student’s transition planning and services are appropriate must therefore be considered within the context of FAPE and court decisions interpreting FAPE.24 As will be explained below, what is unique about transition services requirements is that they focus educational services on a particular purpose—that is, to facilitate a student’s movement to whatever the student will be doing after high school—and impose certain specific mandates on a school district for that purpose.
The basic purpose of transition services is found within the essential purposes of the IDEA. For a substantial period of time, the IDEA has provided that its principal purpose is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to … prepare them for further education, employment, and independent living.”25 Similarly, the US Supreme Court explained in Rowley that in enacting the IDEA, Congress endeavored to enable disabled students to “achieve a reasonable degree of self-sufficiency” and “become productive citizens, contributing to society instead of being forced to remain burdens.”26
The IDEA and the regulations thereunder provide that transition services include “instruction [which also includes ‘specially designed instruction’27 ], related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.”28 The IDEA further explains that transition services are provided to “improve[e] the academic and functional achievement of the [student] to facilitate [his or her] movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”29 In accordance with these principles, a number of federal courts have noted that, as compared to other FAPE services that may focus on a student’s academic development within the public schools, transition services are to be developed for the purpose of facilitating a student’s successful transition to whatever may occur next—that is, post-high school education, employment, and independent community living.30
If necessary to meet the unique needs of a student, the right to transition services may result in a full range of special education and related services. There is nothing within the IDEA’s requirements for transition services that limits the scope of these services.31
IDEA transition services requirements further provide that essential to the development of appropriate transition planning and services is a school district’s “age appropriate transitional assessments related to training, education, employment, and, where appropriate, independent living skills.”32 The assessments are necessary to ensure appropriate transition planning because the school district must develop “appropriate measurable postsecondary goals based upon age appropriate transition assessments.”33 Once the appropriate goals are identified, the school district must then provide “transition services (including courses of study) needed to assist the child in reaching those goals.”34
Residential Services
Under both federal and Massachusetts law, FAPE must be provided in the least restrictive environment. The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability.35 A residential placement is properly considered more restrictive than a day program, even when the day program places a student in a substantially separate special education program.36 The appropriate standard, as reflected within several First Circuit decisions, is whether the educational benefits to which a student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.37
I now turn to an application of the facts to these legal principles.
DISCUSSION
As discussed above, currently and since February 2003, Student has been placed at the Bridge Program within the South Coast Educational Collaborative. King Philip proposes a continuation of the services that have been provided over the past several years. For purposes of determining the appropriateness of the current IEP, I therefore consider whether such services have benefitted (and therefore would likely continue to benefit) Student by appropriately addressing her educational needs.
A success of this program is that Student has made demonstrable progress with respect to her behavior in school and during educational activities supervised by the Bridge Program. Five years ago, she occasionally tried to bang her head and bite her hand at school, and she had limited tolerance for school work. Now, behavioral difficulties are seldom seen at school and what is observed is only an occasional, very mild slapping (actually, more of a tapping) of another person that is not harmful. The last, more significant behavior occurred approximately one and one-half years ago. This area of progress is noteworthy in terms of the Bridge Program’s past success. However, behavior at school is not an area of current concern, is not being addressed through the currently-proposed IEP, and is therefore not relevant to a consideration of the appropriateness of this IEP. Testimony of Prozzo; exhibits S-5, P-1.
I now turn to other areas (where Student has been taught and has made progress) that are relevant to the appropriateness of the current IEP. As will be illustrated below, Student has made progress in academic and non-academic areas while at the Bridge Program. However, all of the gains have been exceedingly limited, particularly when one considers the time period over which the gains have been made. For reasons explained above within the Legal Standards part of this Decision, in order to determine whether her rate of learning is sufficient, I will consider her gains within the context of her potential to learn.
Currently as a 21-year old, Student’s reading comprehension (when stories are read to her) is up to a 3 rd grade level, a year ago it was at approximately a 2.5 grade level, and two years ago it was at a 2 nd grade level. Currently, she recognizes approximately 350 site words, a year ago she knew approximately 275 site words, and five years ago she knew approximately 50 site words. Testimony of Prozzo; exhibits P-5, S-4, S-7, S-19, S-22, S-31.
At age 21, Student’s current academic skills do not extend beyond the early-elementary level. For example, a neuropsychological evaluation of Student on May 3, 2011 (when Student was 20 years, six months) revealed that her word reading was at the 2.6 grade level, reading comprehension was below the 1.0 grade level, math problem solving was below pre-kindergarten, numerical operations were at the 2.2 grade level, spelling was at the 3.1 grade level, and sentence composition was below the 1.0 grade level. Testimony of Sokol; exhibit P-7 (p. 10).
Over the past two or three years, Student has progressed from being able to follow two or three-step instructions to being able to follow three or four-step directions. Testimony of Prozzo.
Over the course of five years, Student has made gains regarding toileting. She used to need someone to guide and prompt her toileting, but presently at school, she is generally independent with toileting except that she needs prompting to wash after toileting, and she continues to have difficulties and need assistance when she is having her period. Testimony of Prozzo.
Student’s school adjustment counselor has been working with Student for nine years, providing individual therapy for a half hour per week and group therapy for a half hour per week. These services have focused on a number of areas, including personal hygiene, problem solving, coping skills. With respect to personal hygiene, Student has learned to wash her hands but cannot wash them completely or thoroughly without supervision. She has learned certain social skills, such as to say “stop” to another student if that student is pushing her or to say “excuse me” if she bumps into another student. She has learned certain problem-solving skills, such as what to do if she spills something but it may take her 30 seconds to process this problem and decide what to do before she cleans up the spill. Importantly, it has taken her three years to learn even these limited skills. Testimony of Aylward; exhibits P-5, P-14, S-4, S-7, S-19, S-22, S-31.38
To the extent that Student has learned very limited independent living skills within the school environment, these skills have not been demonstrated in the home; and with respect to at least one skill utilized in the home, she has regressed. Within the home and family trips into the community, Student currently has no independent adult living skills. For example, it is not disputed that Student cannot independently dress herself, take a shower, comb her hair, brush her teeth or use the toilet. Even during such routine activities as eating, Student requires monitoring and near-constant reminding to chew and eat slowly. At home, she became toilet trained at age 17, but has regressed to the point where she can no longer be trusted to use underpants and frequently soils herself. When toileting accidents occur at home, she does not know what to do. She has not learned appropriate behavior with persons she does not know. Student is an affectionate person, and in the community, her affectionate behavior extends to males who are strangers, sometimes placing Student in a potentially dangerous situation. Testimony of Mother, Knight; exhibit P-25.
Inextricably intertwined with Student’s opportunity to learn independent living skills at home and during family outings into the community is Student’s behavior in these contexts. It is not disputed that Student cannot possibly learn independent living skills in the home and family outings into the community unless and until her aberrant behaviors in these settings are brought under control. Testimony of Deutchman, Sokol, Collins.
In marked contrast with Student’s current behaviors at school and during school-supervised activities in the community (discussed above), Student’s behaviors at home and on family trips into the community have regressed over the past year or so. Currently, her behaviors in these settings are extreme and sometimes dangerous. At home, she is frequently self-injurious, including head-banging and picking at or gnawing on her fingers. On one occasion, she banged her head through a window. Student is frequently aggressive, not only towards Mother but also towards strangers. Her aggression includes hitting, scratching and pushing the other person over. She has picked up knives at home. She yells and screams in the home. It is not possible to predict when Student will act out in these ways, but they often occur when demands are placed on Student (for example, when Mother requests that her daughter make her bed). Testimony of Mother, Deutchman.
Recently, Mother injured her wrist trying to restrain Student when Student pushed a toddler to the ground in the community. Student must be under general anesthesia for even routine dental work. On the school bus, she has hit the bus driver and grabbed things that are unsafe. She wanders away from home unsupervised, often several times each week. While in the community, she has bolted down the street. She is monitored by a tracking bracelet at school. Testimony of Mother, Knight.
A number of these extreme and sometimes dangerous behaviors (screaming, self-injurious behavior and trying to hit Mother) were witnessed by one of Parents’ experts (Ms. Deutchman) and by King Philip’s BCBA (Ms. Dennis) within the home. They are also reflected within Ms. Dennis’ functional behavioral assessment report and a note from the person who rents the floor below the family’s residence in Plainville. Testimony of Mother, Deutchman, Dennis; exhibits P-16 (p. 5), P-26, S-8 (p. 5).39
Student’s aggressive and self-injurious behavior has not only substantially increased over the past year or so, but it has also become more difficult for Mother to manage safely. Student is now bigger and stronger than Mother, and Mother is therefore not able to physically restrain her daughter. Mother often is the only care-giver in the home. Testimony of Mother, Deutchman.40
As a result, Mother now is, understandably, afraid of being alone with Student at home. In addition, it is no longer safe for Mother to take Student into the community alone. Currently, any demands placed on Student by Mother (for example, a request to make her bed) typically result in extreme behavior difficulties. As a result, it has become virtually impossible for Mother to teach her daughter daily living skills in the home and community. Of particular concern regarding Student’s educational development is that because Student has now been practicing her aberrant and sometimes dangerous behaviors for a significant period of time, they have become learned behaviors, making them substantially more difficult to correct. Testimony of Mother, Deutchman, Collins.
In sum, Student has extremely limited academic, social and functional skills. Over the course of a number of years, exceedingly limited gains have been made in these areas. In addition, Student now has extreme and unsafe behaviors in the home and during family outings that have foreclosed the possibility of Student’s learning independent living skills at home and during family trips into the community. Student has regressed in this area.
King Philip responds in several ways. With respect to what Student has learned at school, King Philip does not rebut the very limited progress but relies upon the testimony of its school psychologist who explained that Student has both limited cognitive abilities and limited potential to learn. She noted, correctly, that Student’s most recent full-scale IQ test score was 48, falling in the Extremely Low category and meeting criterion for Moderate Intellectual Disability. The school psychologist testified that Student’s current academic skills are consistent with her cognitive profile. Testimony of Dorion.
I credit the school psychologist’s testimony that Student’s potential to learn academic skills is limited by her cognitive abilities and that Student will likely never gain any age-appropriate academic skills. It is also not disputed that there are no expectations that Student will ever become fully independent in many areas, such as community living. However, for reasons explained below, I am persuaded that Student’s exceedingly limited educational progress over a number of years is legally insufficient in light of her potential to learn.
Student has a relative strength in verbal comprehension, receiving an index score of 63 on the Verbal Comprehension Index; and her ability to complete puzzles further indicates that she can acquire new skills. Parents’ experts (Dr. Sokol and Ms. Deutchman) were persuasive that Student has the educational potential to learn how to read more than isolated words, she should be using her verbal abilities to a much larger extent, she should be able to participate in leisure activities in the community with supervision (for example, go to a restaurant), and she should be able to walk into a store and independently purchase something. Student also should be able to learn sufficient adult living skills so that she can live within a supported environment such as a supervised group residence. Testimony of Deutchman, Sokol.
Ms. Deutchman and Dr. Sokol testified credibly that they did not observe academic instruction that would have been meaningful or effective for Student and that she is not attaining the knowledge or skills that one would expect from appropriate instruction. Their written reports make similar observations. See, for example, Dr. Sokol’s written report where he stated: “it is my strong opinion that [Student] is not being served well in her current setting. Academic content is inappropriate, measures of learning are not demonstrated, and vocational training is severely impoverished.” Exhibit P-7 (p. 7). See also Ms. Deutchman’s written report where she stated: “The school does not provide the level of intensity, sophistication and comprehensive programming requisite for assuring progress and providing [Student] the educational plan she has urgently needed for many years. [Student] has not progressed.” Exhibit P-8 (p. 8).
Ms. Deutchman and Dr. Sokol were persuasive that with appropriate special education services over the past several years, they would expect that someone with Student’s educational profile would now present very differently in terms of skills and abilities—that is, with individualized services that address her unique needs appropriately, by now Student would likely have made substantially more progress and be at a substantially higher level with respect to both academic skills and functional abilities. Testimony of Deutchman, Sokol.
I note that by virtue of their more extensive experience and expertise as well as by virtue of their more detailed and comprehensive knowledge and understanding of Student, Ms. Deutchman and Dr. Sokol were far more persuasive than Ms. Dorion regarding Student’s potential to learn.41
King Philip correctly takes the position that even if its school-based services are not appropriate, this does not necessarily lead to the conclusion that residential services are warranted. As the First Circuit has explained, the IDEA “does not authorize residential care merely to enhance an otherwise sufficient day program.”42 And, as noted in its closing argument, King Philip has been willing to consider different day educational programs for Student.
The question of whether a residential placement is required hinges largely on what responsibility King Philip has, if any, for Student’s difficulties within the home and family outings into the community. King Philip takes the position that special education law does not impose upon it an obligation to address this part of the equation. In short, it argues that the “District cannot be responsible for providing residential services when such services are needed solely for issues in the home.”43 King Philip takes the position that the principal issue in the home that may require residential services is “the safety of mother” but argues that this is not King Philip’s responsibility to address.44
Student’s “IEP … must target all of [her] special needs, whether they be academic, physical, emotional, or social”.45 At the same time, however, special education and related services need not address “problems truly ‘distinct’ from learning problems.”46 “If residential placement is necessitated by medical, social, or emotional problems that are segregable from the learning process, then the local education agency need not fund the residential placement.”47 Thus, the question of whether King Philip must address Student’s social, emotional, and behavior deficits within the home and the family’s community outings will depend on whether these deficits can appropriately be considered separable from the learning process.48
There are several weaknesses with King Philip’s position that it need not address Student’s deficits in the home. First, King Philip’s current IEP proposes that services (in the form of one and one-half hours of consultation from a behavioral consultant) be provided within the home in order to address, among other areas, Student’s deficits regarding independent living skills and social/emotional skills. King Philip does not dispute its obligation to address Student’s deficits within the home through these special education services. See exhibits P-1, S-5 with respect to the home-based services within the IEP service delivery grid and the referenced IEP goals to be addressed through these services.
Second and perhaps more importantly, FAPE includes transition services (discussed above in the Legal Standards part of this Decision), whose sole purpose is to facilitate Student’s movement to whatever she will be doing after high school. It is axiomatic that the ability to generalize learned skills to environments outside of school (such as home and community) is fundamental to the purpose of transition services because transition skills are only useful if they can actually be applied where Student will be living and working after secondary school.49 As Ms. Deutchman explained in her testimony, if Student cannot use the skills within the environments where she needs to be able to use them—for example, in the home and community, then what is the point of teaching them? As will be explained below, there was credible and persuasive testimony that for Student to learn these skills so that she can use them within the home and community, these skills must be actually taught in those environments.
It now seems most likely that after completing her special education entitlements, Student will be offered the opportunity to receive state-funded residential and day program services from the Massachusetts Department of Developmental Services (DDS). A letter to Parents, dated November 28, 2011, from the DDS Area Director, provides in relevant part as follows:
This letter is in response to your request for Residential and Day Program Services for [Student]. In accordance with Department regulations, based upon the results of our assessment process, [Student] has been assigned as a priority to receive these services upon the completion of [Student’s] school entitlement.
This means that upon completion of [Student’s] school services she has been assessed as having an immediate, within 90 days from that date , need for these services (First Priority). [Exhibit P-35 (bold in original).]
In addition, as Dr. Connors testified, regardless of whether community residential services are offered by DDS, it is essential for Student to be developing skills that will allow her to have the opportunity to live away from home in a supported community residence and participate in community activities. Dr. Connors has substantial experience and expertise working with students with autism (including adult autistic students with significant behavioral difficulties), and testified credibly and persuasively regarding Student’s likely prognosis with and without appropriate educational services.50 Also, Dr. Sokol testified that Student has the capability to learn sufficient skills so that she would be able to live in a group home in the community with 24-hour supervision. Ms. Deutchman further concluded that Student can learn to lead “a happy, engaged life including supported community employment, active leisure, and access to the community.” Exhibit P-8 (p. 8). It is not disputed, and I so find, that these are realistic and appropriate goals for Student; and in this light, I further find that the development of independent living skills that she can utilize within her home and community is essential to her transition from high school.51
It is not disputed that just as Student’s behavior has been ameliorated within the school environment and school-supervised trips into the community, she can be taught to control her behavior at home and during family outings to the community. The purpose of King Philip’s proposed behavioral consultation services within the home of one and one-half hours per week is to teach Mother to use strategies and interventions consistent with those that have been successful at school in reducing Student’s behavioral difficulties. At various times, Mother tried out these behavioral support services. However, in each case she terminated these services after no more than approximately six months when Mother determined that it would not be useful for them to continue. King Philip has also provided visual schedules to Mother, as these have proved useful for Student at school to reduce Student’s anxiety or frustration. Mother has used these schedules at home but has not found them effective with respect to substantially reducing her daughter’s behavioral difficulties. Testimony of Mother, Collins, Aylward; exhibit S-24.
King Philip sees no need to propose anything different than (or in addition to) these limited home-based consultation services since it takes the position that it is only a matter of Parents’ implementing these services on a consistent basis over a period of time for them to be successful in addressing Student’s behavior. In support of this position, Ms. Collins’ testimony raised the question of whether Mother was motivated to address this behavior; but Ms. Collins, when asked by the Hearing Officer, did not provide any reason why Mother would not be motivated to do so. Apparently on the basis of this testimony, King Philip makes the argument that Mother either is not able to or does not want to address her daughter’s behavior in the home, thereby putting the responsibility on Parents for Student’s lack of progress in this area.52
For reasons explained below, I do not agree that this dispute can be resolved appropriately by placing the responsibility on Parents for Student’s difficulties within the home and community.
The evidentiary record reflects Mother’s persistent efforts to find appropriate services and interventions for her daughter. And, I have no doubt that Parents are fully committed to the best interests of their daughter. As discussed above, the evidence from multiple, credible sources is that Student’s behavior at home is extreme and sometimes dangerous. Mother has been physically harmed by her daughter’s behavior. Mother testified credibly that she is afraid of her daughter when she becomes violent. Mother is now unable to physically restrain her daughter. In addition, Student’s behavior is extremely disruptive to the family’s home and precludes Mother from teaching her daughter necessary independent living skills. Parents have also demonstrated over a period of years their strong intention to keep their daughter at home and to avoid residential services for as long as possible. Testimony of Mother.53
Under these circumstances, it is inconceivable to me that Mother would lack motivation to address her daughter’s aberrant behaviors in the home and community. Rather, I find that Mother would likely utilize any behavioral services that she could effectively implement to reduce these behaviors.
Where King Philip has a responsibility to address Student’s behaviors in the home, FAPE requires that the home-based behavior consultant services to Parents not only teach behavioral skills that are appropriate and sufficient to be effective for Student, but also they must be tailored to Parents’ abilities to work with their daughter so that Parents can actually utilize the services. In other words, King Philip’s proposed home-based services must be reasonably calculated to actually benefit Student.54
Parents’ experts’ credible testimony was persuasive that one and one-half hours of behavioral consultation services proposed by King Philip was far too little to be effective for purposes of using a Parent consultation model. Moreover, as discussed in more detail below, Student’s behaviors have now gotten to the point where professional staff working directly with Student (as compared to a Parent consultation model) must be utilized. In short, the home-based consultation services proposed by King Philip are structured in a way so as not to be effective. Testimony of Connors, Sokol, Deutchman, Bolfek, Mother; exhibit P-20A.55
Ms. Deutchman and Dr. Connors testified persuasively that at this point in time, as Student’s aberrant behaviors have increased, become more severe and are substantially more ingrained than in the past, it is insufficient simply to train Mother how to respond to her daughter. Rather at least for a period of time, it is imperative that professional staff work directly with Student in all environments, including where Student is living, to begin to reverse Student’s extreme and dangerous behaviors in the home and community. As explained in Dr. Sokol’s report, “her self-injurious and aggressive behaviors need to be managed in the same setting that they are occurring.” Exhibit P-7 (p. 7). I find that without appropriately addressing her behaviors in the home and community, it is simply not conceivable that Student can gain any degree of independence as an adult. Testimony of Deutchman, Sokol.56
For these reasons, I find that in order for behavior interventions to be successful and in order to satisfy the Massachusetts standard that services be reasonably calculated to develop her individual educational potential , Student requires around-the-clock, consistent and coordinated staff response and intervention to reverse and bring under control Student’s behaviors.57
Residential services are required for a second reason, which is to allow Student to make effective progress regarding her independent living skills. With respect to learning appropriate self-care skills and other independent living skills that can be used within a group home and community, Dr. Sokol and Ms. Deutchman testified persuasively that she requires individualized teaching that occurs within the environment where the skill is actually being used—for example, she needs to learn showering and other personal hygiene skills from someone who is present and working with her when she is doing these things. This is because Student cannot access conceptual learning, and she cannot construct learning on her own—for example, learning inferentially from others. But she can learn if specific skills are targeted, and if there is consistent and repetitive instruction, with scaffolding, and the instruction is provided where Student is utilizing the skills she is learning.58 Testimony of Deutchman, Sokol.
Dr. Sokol further explained in his written report, and I find persuasive, that effective instruction regarding independent living skills and other functional skills necessary for Student to begin to gain a measure of self-sufficiency and independence can only occur within a residential school: “Given the nature and severity of [Student’s] needs, she needs to be in a residential placement with around the clock and around the year support. This is essential given the nature of the skills she has yet to acquire (e.g., self-hygiene, management of menstruation) as well as the apparent disconnect between her behavior at school and home.” Exhibit P-7 (p. 7). Similarly, Ms. Deutchman explained in her written report: “Further, the lack of 24-hour programming has resulted in a young woman who is not in any way equipped to succeed in Adult Services.” Exhibit P-8 (p. 4).
Additional credible and persuasive support for a residential placement may be found within the testimony of a physician (Dr. Connors) who met with Student and Mother, and reviewed Student’s records. As discussed above in a footnote, Dr. Connors has an impressive depth of knowledge and experience working with children with Student’s profile, including children on the autism spectrum with significant behavioral difficulties. Dr. Connors testified credibly and persuasively that in order to learn fundamental life skills necessary for Student to achieve any degree of independence in the community, she requires comprehensive, around-the-clock instruction (including instruction where Student lives) that is based upon Applied Behavioral Analysis (ABA) principles, that is consistent and structured, and that is provided by professional staff. Dr. Connors was persuasive that Mother would not be capable of providing the necessary instruction within her home. Testimony of Connors.
As discussed above, an appropriate and realistic more long-term goal for Student (which should inform transition planning and services) is for her to live within a supervised group home in the community, from which she would be able to access recreation and supported employment in the community. Dr. Connors testified persuasively that Student would likely have an opportunity to reach this goal only if she is provided residential educational services to teach her requisite daily living skills. Dr. Connors’ written report also reflected these conclusions. Testimony of Connors; exhibit P-19 (“It is strongly recommended that [Student] be placed in a highly structured residential setting asap … to ensure her safety and that of others and to afford her a full program to develop her adult skills.”).
Further support for the need for residential services for this purpose came from the testimony of Student’s psychiatrist (Dr. Bolfek). Dr. Bolfek made clear that, in her opinion, a residential placement is the only educational service that will likely provide Student with the opportunity to learn basic living skills, such as dressing and caring for herself, that are essential for Student. Testimony of Bolfek. Her report also reflects this conclusion. Exhibit P-20 (“The only way that [Student] will attain anywhere near her potential is to be in a residential placement that is ABA based.”)
Student’s treating primary care physician (Dr. McDonald) also supported a residential placement, as reflected in his note dated July 15, 2011, stating that Student has exhibited violent behavior in his office (striking an elderly woman and knocking her down). The note further stated: “It would be unreasonable to expect her parents to care for [Student] in the home. … [Student] requires 24 hours a day, 365 days a year of specialty care in a treating facility.” Exhibit P-22.
For the reasons explained by Dr. Sokol, Ms. Deutchman, Dr. Connors, Dr. Bolfek and Dr. McDonald, I find that Student requires around-the-clock consistency, reinforcement and hands-on instruction from educational staff in multiple environments (including where she is living) in order to learn skills and behavior that are necessary for her to have a meaningful opportunity to live and work in the community. I therefore conclude that only within a residential educational placement can Student receive the special education and related services, to which she is entitled.
Parents sought an order that Student be placed at the Amego School. However, they provided insufficient evidence to establish that Amego (or any other particular residential school) would likely appropriately meet Student’s needs. Parents provided general, printed information about Amego, and there were several general references to Amego by witnesses; but without more, there is insufficient probative evidence to establish its appropriateness for Student. Exhibit P-31.
Therefore, King Philip will be ordered to identify an appropriate out-of-district placement.
Finally, I note that there was unrebutted testimony from Ms. Deutchman and Dr. Connors that Student’s day and residential services, in order to be appropriate, must be based upon Applied Behavioral Analysis principles. And, through the testimony of Student’s teacher, King Philip sought to establish that the Bridge Program utilizes these principles. Testimony of Deutchman, Sokol, Prozzo. I will therefore require that a residential school be identified that utilizes ABA principles.
ORDER
The IEP most recently proposed by King Philip is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Additions or other modifications cannot be made to the IEP in order to satisfy this standard.
A free appropriate public education in the least restrictive environment can only be provided through placement at a residential school that uses Applied Behavioral Analysis principles.
As soon as possible and with participation of Parents, King Philip shall identify an appropriate residential school and place Student.
By the Hearing Officer,
William Crane
Dated: January 24, 2012
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Dr. Bolfek testified by telephone speaker phone.
2
Dr. Connors testified by telephone speaker phone.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12 (1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living’” citing to 20 USC § 1400(d)(1)(A)).
6
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.
7
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig , 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard, , 518 F.3d at 23 (referencing the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
8
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).
9
Lessard , 518 F.3d at 23 (citations omitted). See also Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
10
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir. 1993).
11
See Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted ); Rowley, 458 U.S. at 192 (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
12
See Murphy v. Timberlane Regional School Dist . 22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985); Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) (“meaningful progress … is the hallmark of educational benefit under the [federal] statute”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ). The First Circuit and Massachusetts federal district courts have sometimes articulated a meaningful benefit standard in terms of effective results and demonstrable improvement. See, e.g., North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
13
See, e.g., G.S. v. Cranbury Tp. Bd. of Educ ., 2011 WL 5357633, 3 (3 rd 2011) (“To be appropriate under the IDEA, an IEP must provide meaningful access to education and confer some educational benefit upon the child for whom it is designed. We have explained that the educational benefit must be more than trivial, and must offer the potential for significant learning and meaningful benefit.) (citations and internal quotations omitted); Houston Independent School Dist. v. V.P. ex rel. Juan P ., 582 F.3d 576, 583 (5 th Cir. 2009) (adopting a meaningful benefit standard) ; P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed. , 546 F.3d 111, 119 (2 nd Cir. 2008) (“ door of public education must be opened in a meaningful way”); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (referencing standard of “whether the school district appropriately addressed the child’s needs and provided him with a meaningful education[al] benefit under the substantive prong of Rowley ”), cert. denied , 543 U.S. 1009 (2004).
14
Lessard , 518 F.3d at 29 .
15
Rowley , 458 U.S. at 202.
16
Deal v. Hamilton County Board of Education, 392 F.3d 840, 862 (6 th Cir. 2004) (internal quotations and citation omitted).
17
20 USC 1401(9)(b); Winkelman v. Parma City School Dist. , 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”).
18
Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”) .
19
603 CMR 28.05 (4) (b).
20
See IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found at http://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc See also exhibits S-5 and P-1 (describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).
21
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”).
22
603 CMR 28.01(3).
23
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
24
See J.L. v. Mercer Island School Dist ., 575 F.3d 1025, 1036 (9 th Cir. 2009) (“no plausible way to read the definition of ‘transition services’ as changing the free appropriate public education standard”); Lessard v. Wilton Lyndeborough Cooperative School Dist . , 518 F.3d 18, 28-30 (1 st Cir. 2008) (applying FAPE standards to determine whether transition services were appropriate).
25
20 U.S.C. § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
26
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176 , 201, n.23 (1982). See also Deal v. Hamilton County Bd. of Educ ., 392 F.3d 840, 864 (6th Cir. 2004) (“At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.”).
27
See 34 CFR §300.43(b).
28
20 U.S.C. § 1401(34)(C). See also 24 C.F.R. § 300.43.
29
20 U.S.C. § 1401(34)(A). See also 24 C.F.R. § 300.43. Similarly, the U.S. D.O.E. has stated: “The purpose of [the transition services requirement] is to focus attention on how the child’s educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school.” 64 Fed. Reg. 12474-12475 (March 12, 1999), quoting H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997).
30
See Yankton School Dist. v. Schramm , 93 F.3d 1369, n.6 (8 th Cir. 1996) (“ A very bright, disciplined, and determined student, Tracy appears to be headed for college. Preparing disabled students for postsecondary education is one of the reasons for transition services under the IDEA. Under the statute, her success in high school, due in part to the special education she receives, should not prevent her from receiving whatever transition services she may need to be equally successful in college.”); Elizabeth M. v. William S. Hart Union High School Dist . , 2003 WL 25514791, *4 ( C.D. Cal. 2003 (“adequate high school education is inextricably linked to a successful transition to post-secondary education”) ; Kevin T. v. Elmhurst Community School Dist. No. 205 , 2002 WL 433061, *12 ( N.D.Ill. 2002) (transition services are “[t]o ensure that disabled students can adequately function in society after graduation”); J.B. v. Killingly Board of Education, 990 F.Supp. 57 (D.CT 1997) (student “could receive instruction in community living and social skills, including daily living skills, appropriate behavior, socialization, and working skills, as part of his transition services”); Yankton School District v. Schramm , 900 F.Supp. 1182 (D.S.D. 1995) (“Transition services are ‘aimed at preparing students (soon to leave school) for employment, postsecondary education, vocational training, continuing and adult education, adult services, independent living, or community participation.’”) (emphasis in original), aff’d 93 F.3d 1369 (8 th Cir. 1996).
31
See 20 U.S.C. § 1401(34)(C); 24 C.F.R. § 300.43. See also In Re: Douglas Public Schools , BSEA # 11-1312, 110 LRP 68668 (SEA MA 2010) (ordering residential placement pursuant to school district’s responsibility to provide transition services). Within other contexts, residential services have been determined necessary so that the student would have the opportunity to generalize learned skills. See, e.g., Ash v. Lake Oswego School Dist. No. 7J, 766 F.Supp. 852, 863 (D.Or. 1991) (residential placement ordered so that student would be able to “learn something at school and then take that learning home or into the community”); Mohawk Trail Regional School Dist. v. Shaun D. ex rel. Linda D . 35 F.Supp.2d 34, 43 (D.Mass. 1999) (residential services needed to “ give him the ability to generalize what he learns at school to the community”).
32
20 USC § 1414 (d)(1)(A)(i)(VIII)(aa). See also 34 CFR §300.320(b) (providing similar requirements).
33
20 USC § 1414 (d)(1)(A)(i)(VIII)(aa). See also 34 CFR §300.320(b) (providing similar requirements).
34
20 USC § 1414 (d)(1)(A)(i)(VIII)(bb). See also 34 CFR §300.320(b) (providing similar requirements).
35
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
36
Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).
37
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).
38
The written progress reports from Bridge do not dispute Student’s slow rate of progress and that progress is being made in a very limited number of areas. This becomes clear when one considers the repetition, from year to year, of some of Student’s goals, against which progress is being measured. See exhibits S-4, S-19, S-22, S-31, S-32, S-35, S-36, S-37, S-38, S-39, S-41, S-44, S-48, S-54.
39
The fact that these behaviors have not been observed when Student has been evaluated (during Dr. Sokol’s neuropsychological evaluation) and were not observed during a hospitalization (at Hampstead Hospital in the fall of 2010) does not diminish the persuasiveness of the evidence regarding Student’s behavior in the home and during family outings into the community. Dr. Sokol is a skilled clinician who understands how to work with persons with Student’s profile, and Hampstead Hospital is a highly structured setting with around-the-clock staffing that Parents are not able to replicate at home. Testimony of Sokol; exhibits P-20A, S-25, S-30.
40
Father has two jobs, which often result in his being out of the home on evenings and weekends. Testimony of Mother.
41
Ms. Dorion, who did not evaluate Student, has been a school psychologist at King Philip since September 2011. She received her master’s of arts degree in education in 2009 and her educational specialist degree in 2011. The evidentiary record does not indicate that she has any other experience or education. Testimony of Dorion.
In contrast, Dr. Sokol, who evaluated and observed Student, received his PhD in psychology in 1988; he has practiced as a neuropsychologist since 2005; he has had a number of academic appointments (including as an assistant professor in neurology at Harvard Medical School from 1992 to 1999); and he has extensively published and made professional presentations. He has been conducting evaluations of students for the past 20 years, including evaluations of approximately six older students who have a combination of autism and cognitive deficits. Testimony of Sokol, exhibit P-7A (resume).
Ms. Deutchman, who evaluated and observed Student, is a Board Certified Behavior Analyst (BCBA). She has worked with (and provided consultation services regarding) students with autism for 15 years. Her experience includes conducting an extensive number of assessments for parents and school districts for purpose of developing and implementing programs for children and adolescents with autism. Testimony of Deutchman; exhibit P-8A (resume).
42
Abrahamson v. Hershman , 701 F.2d 223, 227 (1 st Cir. 1983) (emphasis in original).
43
King Philip’s closing argument, page 2.
44
Id, page 10.
45
Lenn v. Portland School Committee , 998 F.2d 1083, 1089 -1090 (1 st Cir. 1993) (emphasis in original, internal citations omitted).
46
Gonzalez v. P.R. Dep’t of Educ., 254 F.3d 350, 352 (1 st Cir. 2001).
47
Shaw v. Weast , 364 Fed.Appx. 47, 53, 2010 WL 331428, *5 (4 th Cir. 2010).
48
20 U.S.C. 1414(d)(3)(B)(i) (“The IEP Team shall . . . in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior”); Indep. Sch. Dist. No. 284, Wayzata Area School v. AC , 258 F.3d 769 (8th Cir. 2001) (student’s behavior problems are not separable from the student’s learning process, and behavioral and emotional problems must be addressed through residential services if the student is to succeed academically); Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1 st Cir. 2001) (noting that, in determining adequacy of IEP for emotionally disturbed boy, “[t]he question is whether [his] behavioral disturbances interfered with the child’s ability to learn”); Board of Education of Montgomery County v. Brett Y , 155 F.3d 557 (4th Cir. 1998) (“residential placement that is necessary for ‘medical, social, or emotional problems that are segregable from the learning process’ need not be funded by the local education agency.”); Mrs. B. v. Milford Board of Education , 103 F.3d 1114, 1122 (2nd Cir. 1997) (“fact that a residential placement may be required to alter a child’s regressive behavior at home as well as within the classroom, or is required due primarily to emotional problems, does not relieve the state of its obligation to pay for the program under federal law so long as it is necessary to insure that the child can be properly educated”).
49
See, e.g., Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010) (“Hearing Officer … reasonably determined that the services were not reasonably calculated to supporting independent living outside of high school, such as maintaining self-hygiene and learning transportation skills. … Indeed, C.A.’s action plan for daily skills addresses only his independence in the school environment. [emphasis in original]”).
50
Dr. Connors met with Student and Mother, reviewed Student’s records, and completed a written evaluation. Dr. Connors, who received her MD in 1983, has been seeing patients and coordinating care of patients at the Lurie
Center since 1999. The Lurie Center is a program of the Mass. General Hospital. Approximately 95% of the patients that Dr. Connors has worked with at the Lurie Center have a diagnosis of autism. She has also consulted to ten group homes and five day programs regarding students with autism, and has extensive experience with autistic students with significant behavioral difficulties. Dr. Connors also has a 20-year-old son who has autism. Testimony of Connors; exhibits P-19, P-19A (resume).
51
In recognition of the importance of developing appropriate independent living skills, the IDEA provides that in order to develop appropriate IEP goals and services in this area, King Philip is required to conduct age appropriate transitional assessments related to Student’s independent living skills. See 20 USC § 1414 (d)(1)(A)(i)(VIII)(aa) and (bb); 34 CFR §300.320(b), discussed in the Legal Standards part of this Decision, above. Such assessments have not occurred, and without such assessments, it has simply not been possible for King Philip to understand Student’s needs in this area or to propose appropriate services.
52
See King Philip’s closing argument, page 10 (“Despite training in the home, and modeling of how to carry over these techniques in the home, the Parents either cannot or will not implement the [behavioral] strategies in the home.”)
53
Parents have only relatively recently rejected an IEP calling for the Bridge Program and sought residential educational services. They made this request, for the first time, to King Philip in January 2011. Previously, Parents always believed that they could learn to manage Student appropriately within the home, and they supported Student’s placement at the Bridge Program. However, Parents changed their minds only when their daughter’s behavior in the home (and on family trips to the community) continued to regress, became more severe and dangerous, and foreclosed any opportunity for Mother to teach Student independent living skills in the home and community, or even to take Student into the community for recreation and other activities. Testimony of Mother, Collins.
54
See In Re: Norwood , BSEA # 11-5444, 17 MSER 228 (August 4, 2011); In Re: Worcester , BSEA # 09-3109, 15 MSER 40 (February 24, 2009); In Re: Norwood , BSEA # 08-6241, 14 MSER 210 (July 2, 2008).
55
When Parents found the services not to be effective, King Philip made no effort to determine what additional or different services might be needed in order for Parents to actually utilize the consultation and work effectively with Student’s behavior. As a result, King Philip has left Parents in an untenable position of having extreme and dangerous behaviors in the home with no way to address them appropriately.
56
Ms. Collins has expertise and experience regarding behavioral difficulties of a student with autism. Testimony of Collins; exhibits S-80 (resume). Ms. Collins did not evaluate Student. I found Dr. Sokol’s and Ms. Deutchman’s testimony and reports to be more authoritative and persuasive than Ms. Collins’ testimony on this issue.
57
The only viable alternative to residential placement would be around-the-clock staffing within the home itself which would be essentially the equivalent of residential services, and the expert (Ms. Deutchman) who offered this as a possible solution cast doubt on the likely effectiveness of these services, particularly within the short term.
58
In contrast, for example, the Bridge Program was attempting to teach Student personal hygiene skills of bathing and showering by bathing a doll and pretending to shower. Testimony of Aylward.