COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Leominster Public Schools
BSEA#: 11-5122
DECISION
This decision is issued pursuant to the Individual with Disabilities 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 March 22, 2011 and March 25, 2011 in Leominster, MA before Hearing Officer Ann F. Scannell. Those present for all or part of the Hearing were:
Sean’s1 Mother
Sean’s Father
Sean
Courtney Muller Administrator for Special Education, Leominster Public Schools
Susan Brown Out of District Team Liason, Leominster Public Schools
Leah Davis Social Worker, Department of Children and Families
Liza Chestano Social Worker, Department of Children and Families
Richard Murphy Executive Director, FLLAC
Jailyn Correa PDD/Autism Program Supervisor, FLLAC
Kim Boivan Teacher, FLLAC
Carolyn Boria Speech Pathologist, FLLAC
Holly Wilbur (via telephone) Physical Therapist, FLLAC
Linda Hillson (via telephone) Occupational Therapist, FLLAC
Carolyn Lyons Attorney, Leominster Public Schools
Jessica DeSantis Court Reporter
The official record of the Hearing consists of documents submitted by Leominster Public Schools (“Leominster”) and marked as Exhibits S-1 through S-47; documents submitted by the parents and marked as Exhibits P-1 through P-20 and P-22 through P-24, and approximately two days of oral testimony. Oral closing arguments were heard on March 25, 2011 and the record closed on that date.
INTRODUCTION
Sean is a 9 year old boy who resides with his mother, father and older brother in Leominster, Massachusetts. Sean and his family moved from Haverhill to Leominster in the spring of 2010. Sean has been diagnosed with autism and also suffers from some medical issues, including eczema, asthma, peanut allergies and environmental allergies. He currently attends the FLLAC Educational Collaborative (“FLLAC”) which is housed in the Houghton Elementary School in Sterling. Sean is enrolled as a third grader in the Intensive Pervasive Developmental Disorder (“PDD”) program. He has attended the PDD program since September 7, 2010. (Exhibits S-22 and P-2 and testimony of Brown and Correa)
Prior to enrolling in the Leominster Public Schools, Sean was enrolled in the Haverhill Public Schools (“Haverhill”). He attended the second grade at the Therapeutic Educational and Assessment Center of Haverhill (“TEACH”) housed at the St. James School. The IEP from Haverhill was dated October 8, 2009 to October 8, 2010. It was accepted by the parents on April 15, 2010. (Exhibits S-38 and P-5)
The 2009-2010 Haverhill IEP provided Sean with a 1:1 aide, 120 minutes per week of speech and language services, 30 minutes per week of physical therapy services and 90 minutes per week of occupational therapy services. Sean also had a behavioral support plan. The IEP called for an extended school day, 90 minutes per day/4 days per week; and an extended school year, 5 hours per day/5 days per week. The extended school year program ran for 8 weeks. Additionally, the IEP called for Sean to receive services during the February and April vacations. (Exhibits S-38 and P-5)
After enrolling in the Leominster Public Schools in the spring of 2010, Leominster proposed an IEP for Sean. The IEP included 120 minutes per week of speech and language services and 90 minutes per week of occupational therapy services. It also provided extended school year services and extended day services in the home. Sean’s program was to take place in the Intensive PDD program at the FLLAC Collaborative. The parents rejected the IEP but on September 3, 2010, accepted placement at the FLLAC Collaborative. (Exhibits S-34 and P-4)
Sean began attending the PDD program through the FLLAC Collaborative on September 7, 2011. He receives 1:1 services throughout his day from an Applied Behavior Analysis (“ABA”) trained therapist. Sean also receives speech and language services 120 minutes per week, occupational therapy services 90 minutes per week and physical therapy services 30 minutes per week, in addition to a behavior support plan to address his noncompliant and maladaptive behaviors. (Exhibits S-13, S-21, P-2 and testimony of Wilbur, Hillson and Correa)
After Sean spent approximately one month in the program, Leominster proposed a new IEP. This IEP dated September 30, 2010 to September 29, 2011, was rejected by the parents. The IEP called for 120 minutes per week of speech and language services, 90 minutes per week of occupational therapy services and 30 minutes per week of physical therapy services. The IEP also included extended year services in the FLLAC summer program. Placement was designated as the PDD program through the FLLAC Collaborative which was housed at the Houghton Elementary School in Sterling. The parents rejected the placement because the placement was not designated on the placement page as a separate public day school. (Exhibits S-21 and P-2 and testimony of Brown, Muller and Sean’s mother)
In October of 2010, the parents agreed to have FLLAC conduct an assistive technology assessment and a functional behavioral assessment of Sean. These assessments were completed a short time later. Based on the data collected, a new behavior support plan was also instituted. (Exhibits S-13, 18 and 20 and P-12 and testimony of Correa and Sean’s mother)
In December of 2010, Sean was taken out of school by his parents. Sean was in and out of school for several weeks, returning on a consistent basis the second week in February. (Exhibits P-19 and testimony of Bovin, Correa and Sean’s mother)
On February 8, 2011, Leominster filed a request for Hearing. Leominster is seeking an order from the Bureau of Special Education Appeals (“BSEA”) that the IEP dated September 30, 2010 to September 29, 2011 provides a free, appropriate public education (“FAPE”) to Sean in the least restrictive environment. Leominster is also seeking a finding by the BSEA that the parents do not have a “stay put” right to the contents of the previous IEP drafted by Haverhill. (Exhibit S-10)
This matter proceeded to a BSEA Hearing on March 22, 2011 and March 25, 2011. It is Leominster’s position that the IEP dated September 30, 2010 to September 29, 2011 provides a FAPE to Sean in the least restrictive environment and the parents are not entitled to stay put services from the previous IEP drafted by Haverhill.
It is the parents’ position that the IEP proposed by Leominster does not provide a FAPE to Sean. Further, the parent believes that Sean is entitled to stay put services from the last accepted IEP from Haverhill.
ISSUES
The issues to be decided in this matter are the following:
1. Whether the IEP dated September 30, 2010 to September 29, 2011 is reasonably calculated to provide Sean with a free, appropriate public education in the least restrictive environment?
2. If not, can additions or modifications be made to the IEP in order to satisfy this standard?
3. If not, does Sean require an out of district private placement in order to receive a free, appropriate public education?
4. Is Sean entitled to stay put services contained in the last accepted IEP from the Haverhill School District?
FACTS
Sean is a 9 year old boy who resides with his parents and older brother in Leominster. Sean has been diagnosed with Autism. When Sean was evaluated just prior to his third birthday, he exhibited developmental delays in his cognitive skills, communication skills, adaptive/self-help skills and some motor skills. The evaluator recommended that Sean be considered for services through the public schools’ program for children with disabilities. He was placed on an IEP in January 2005 when he was in preschool in North Carolina. (Exhibits P-16 and P-11)
Sean and his family subsequently moved to Massachusetts. After moving from Milford, Massachusetts, in 2006, Sean continued his preschool education at Haverhill. His IEP focused on academics, social skills, daily living skills and gross and fine motor skills. In September of 2007, Sean entered kindergarten. He spent ½ of his day in the integrated kindergarten class and ½ of his day in the developmental support class. His IEP from March 28, 2007 to March 28, 2008 also called for Sean to attend a six week summer program. (Exhibits P-9 and 10)
In February and March, 2008, Sean underwent a three year re-evaluation. The skills assessment found relative strengths in play and social skills. It also revealed relative weaknesses in academics and expressive language skills. The results from the physical therapy reevaluation placed Sean in the very low range for visual motor integration and visual perception. Sean exhibited some mild weakness in the Manipulation with Movement subtest as part of the occupational therapy reevaluation. Testing was difficult due to Sean’s attentional problems. In the speech and language reevaluation Sean scored significantly below average on the Goldman-Fristoe Test of Articulation. The examiner noted that Sean’s overall speech intelligibility was moderate to severe and impacted his communicative effectiveness. (Exhibit P-8)
A new IEP was developed for Sean that was effective from March 28, 2008 to March 28, 2009. It contained goals for pre-academic, communication, behavior and fine motor skills. The TEAM also recommended an 8 week summer program which ran 5 hours a day for 4 days and included group speech and language services as well as group occupational therapy services and a social skills group. (Exhibit P-8)
In June of 2009, Sean began the TEACH program at the St. James School in Haverhill. Sean attended the program along with four peers. The program was administered by three teaching staff. Sean received 1:1 instruction. Sean also received speech and language services as well as occupational therapy services. (Exhibit S-39)
Pursuant to a request by the parents, Sean was reevaluated by Haverhill in the fall of 2009. He underwent an educational assessment, a functional behavioral assessment, an occupational therapy evaluation, a physical therapy evaluation and a speech and language evaluation. (Exhibit S-39)
The occupational therapist reported Sean’s strengths were in the area of his use of contextual cues and imitative models to assist in following directions or learning new tasks, his ease in engagement, his organization in approach to activities, his understanding hygiene sequences and his independence in hand washing. She noted that Sean had difficulties with sensory modulation and discrimination, fine motor skills and visual motor skills. These difficulties affected Sean’s ability to learn novel tasks, attend to self-care, use functional tools and write. Direct therapy was recommended. (Exhibits S-39 and P-14)
Sean also underwent a physical therapy evaluation. Sean was unable to complete the Bruininks Oseretsky Test of Motor Proficiency due to his inability to sustain joint attention for standardized tasks. Sean was, however, able to perform some tasks associated with the School Function Assessment. The therapist concluded that Sean was able to physically access the academic environment with his peers. Moreover, his teachers were reporting no issues. The therapist noted strengths in Sean’s ability to maintain adequate body alignment throughout the school day, participate in motor tasks and be physically functionally independent. Sean’s weaknesses included his tight hamstrings and difficulty descending stairs. The therapist recommended that Sean continue to engage in gross motor play, be cued to alternate lower extremities when descending stairs and be positioned in class to enhance his range of motion. (Exhibits S-39 and P-14)
The speech and language therapist reported that Sean’s strengths included his outgoing positive attitude and his overall willingness to participate in social/academic routines. Sean’s difficulties lay with interpreting, recalling and properly acting upon oral directions. Sean also displayed difficulty with retrieving and integrating ideas in order to generate grammatically and semantically complete sentences. One of Sean’s greatest difficulties was his articulation. His difficulty in this area had a negative impact on his overall intelligibility. (Exhibits S-39 and P-13)
Sean, whose age at the time of the 2009 testing was 7.8, scored at the 5.2 year level on the Peabody Picture Vocabulary Test –III (PPVT-III). On the Expressive Vocabulary Test (EVT) Sean scored at the 3.5 age range. Sean scored at the 4.2 age range on the word classes subtest of the Clinical Evaluation of Language Fundamentals-4 (CELF-4), also scored well below his age range on the concepts and following directions subtest (3.8 age range) as well as the word classes-expressive subtest (4.2 age range). Sean was unable to complete both the formulated sentences and the recalling sentences subtests. (Exhibit S-39)
The speech and language therapist recommended the use of visuals and explicit teaching of vocabulary with Sean. She also recommended that Sean be cued to use a variety of communication modalities including verbalizations, gestures, picture symbols, sign language and an augmentative communication device. (Exhibit S-39)
Sean was also administered the Woodcock-Johnson Tests of Achievement (WJ-III) to assess his academic achievement and oral language abilities. The results of the testing revealed that Sean’s listening comprehension skills were very low (<1 st to 1 st percentile) and his academic knowledge was very low (<1 st percentile). When compared to others at his age level, Sean’s performance was very low in basic reading skills (3.8 age equivalent) and math reasoning skills (3.10 age equivalent).
Following these evaluations the TEAM met to discuss results and develop an IEP. Sean’s IEP dated October 8, 2009 to October 8, 2010 provided him with speech and language therapy 4 times a week for 30 minutes, physical therapy once a week for 30 minutes and occupational therapy 3 times a week for 30 minutes. Sean was serviced by a 1:1 aide. A behavior plan was instituted which focused on Sean’s non-compliant behavior. In addition a toilet training plan was put in place. This IEP also called for Sean to receive extended day services, as well as extended year services. The extended day services lasted 90 minutes, Monday through Thursday. Extended year services were provided for 8 weeks during the summer and during the February and April vacations to prevent substantial regression. (Exhibits S-38 and P-5)
The parents did not accept the IEP until April 15, 2010. Shortly thereafter, Sean and his family moved to Leominster. Sean’s parents enrolled him in the Leominster Public Schools on May 3, 2010. The parents requested that the services in the Haverhill October 8, 2009 to October 8, 2010 IEP be implemented. Over the next several weeks, efforts were made to place Sean in an appropriate educational program. There were difficulties obtaining records, scheduling meetings and visiting potential programs. (Exhibits S-26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 and P-18 and 22)
On or about May 17, 2010, Leominster proposed an IEP and placement for Sean. The IEP dated May 17, 2010 to May 16, 2011 was very similar to Haverhill’s 2009 to 2010 IEP. Speech and language services were offered 4 times a week for 30 minutes and occupational services were offered 3 times a week for 30 minutes. It also included extended year services and extended day services Monday through Thursday in the home. The recommended placement was a separate public day school. Sean’s program was to be provided in the intensive PDD program at the FLLAC Collaborative. The parents did not accept the IEP.2 (Exhibits S-33 and 34 and P-4 and testimony of Brown and Muller)
On September 3, 2010, Sean and his parents visited the Intensive PDD program through the FLLAC Collaborative. The parents subsequently accepted placement at the FLLAC Collaborative and Sean began the intensive PDD program on September 7, 2010. (Exhibit P-22)
On September 30, 2010, Sean’s TEAM conducted a facilitated TEAM meeting with BSEA Facilitator Marc Sevigny. During the meeting, FLLAC staff discussed Sean’s performance in the Intensive PDD program thus far. The staff discussed Sean as a cheerful and motivated child who was eager to verbally communicate with peers and staff. Although Sean had a communication book available to him during the day, he prefered to communicate verbally. Sean possessed a full repertoire of speech sounds in isolation. His speech sounds broke down, however, when he moved from single word to single sentence levels. Sean exhibited impaired phonological processes including final consonant deletion, cluster reduction, consonant harmony and weak syllable deletion. Sean’s therapist noted, however, that Sean was able to better imitate the speech pathologist’s productions when attending to visual and auditory cues. Sean demonstrated potential to improve speech production skills. (Exhibits S-22 and 23 and testimony of Boria)
Ms. Boria, the speech pathologist, recommended specific accommodations for Sean including positive reinforcement, provision of oral information in short concise segments, modeling and cues to expand sentence length and complexity, multi sensory cuing and visual supports and strategies. She also recommended direct speech and language instruction 120 minutes per week and consultation to Sean’s teacher and staff for 30 minutes per month. (Exhibit S-23 and testimony of Boria)
Sean’s physical therapist, Ms. Wilbur, reported that Sean was able to gallop, balance on either foot and jump forward. He was inconsistently able to ascend and descend stairs. Ms. Wilbur recommended direct physical therapy services for 30 minutes per week and a consultation to Sean’s teacher and staff for 30 minutes per month. (Exhibits S-23 and 21 and P-2 and testimony of Wilbur)
The occupational therapist, Ms. Hillson, reported that Sean’s fundamental skills needed for handwriting were emerging. He demonstrated understanding of simple directional and spatial terminology, was able to complete connect the dot pictures and use scissors properly. Sean was able to put on and take off a dressing vest and comb his hair. Complex hygiene and grooming skills such as tooth brushing and shoe tying, however, remained a challenge for Sean. Ms. Hillson recommended that Sean undergo 90 minutes of direct occupational therapy per week. She also recommended consulting with Sean’s teacher and staff for 30 minutes per month.
Ms. Boivan, Sean’s classroom teacher, reported that Sean was able to receptively identify some letters, count using unifix cubes and identify several community helpers. He had difficulty copying an ABAB pattern with unifix cubes and identifying letter sounds. Sean was able to greet others independently, raise his hand and wait his turn. Sean exhibited negative social interactions with some adults and strangers and displayed maladaptive behaviors throughout the day. (Exhbits S-21 and 23 and P-2 and testimony of Boivan)
To address Sean’s maladaptive behaviors, Ms. Boivan reported that the staff was utilizing the functional behavior support plan from Haverhill. Using this plan, Sean was displaying noncompliant behavior an average of one instance per day for an average of less than one minute per instance. Sean was also displaying negative transition behavior an average of .25 instances per day or on 3 occasions during the 16 day period Sean had been in the FLLACC program. In addition, Sean had been observed to display property destruction an average of .20 instances per day. It was recommended that a functional behavioral assessment be completed and his behavior support plan be revised. (Exhibits S-23 and 21 and P-2 and testimony of Boivan)
As a result of the September 30, 2010 facilitated TEAM meeting, a new IEP was proposed from September 30, 2010 to September 29, 2011. The TEAM also recommended an assistive technology assessment and a functional behavioral assessment. The IEP contained goals in the areas of functional academics, behavior and social/emotional, communication, occupational therapy, physical therapy and self care. PLEP A accommodations included picture supports, repetitive instruction, modification of materials, low level of distractions, structured social learning opportunities, transition warnings, close adult support during transitions, access to small sensory items, sensory breaks, keyboarding, 1:1 support, preteaching vocabulary, graphic organizers, access to Mayer/Johnson symbols, toileting plan and a behavior support plan. Accomodations on PLEP B included a structured, predictable environment, small groups with 1:1 support, tactile and visual materials, chunking of materials, a total communication approach, visual/auditory breaks, natural sensory opportunities, a hand exercise program, access to keyboarding and multisensory learning experiences. (Exhibits S-20 and 21 and P-2 and testimony of Boivan, Correa and Sean’s mother)
Further, this IEP called for direct speech and language therapy for 30 minutes, two times per week, occupational therapy for 45 minutes, two times per week and physical therapy for 30 minutes, one time per week. Consultation was also provided to Sean’s teachers in these areas for 30 minutes, one time per month. The IEP also included consultation with an ABA supervisor for 30 minutes, one time per month. (Exhibits S-21 and P-2 and testimony of Boivan, Correa and Sean’s mother)
The IEP did not provide for extended day services, but did call for extended year services through the FLLAC program. The FLLAC program operates on a 208 day school schedule. During the summer, the students attend from 8:30 to 1:00 and the services are consistent with the services Sean receives during the remainder of the year. (Exhibits S-21 and P-2)
The IEP recommended placement in the intensive PDD program through the FLLAC Collaborative which is housed at the Houghton School in Sterling. The parents rejected this IEP because they believed that Sean required a longer summer program and an extended day program. They also wanted his placement to be in a separate public day program.3 (Exhibits S-21 and P-2 and testimony of Sean’s mother)
Sean underwent an assistive technology assessment on October 25, 2010. It was conducted by Matthew Korobkin, MSEd. Mr. Korobkin concluded that Sean responds well to media presented in a multi modal format. The programs he used with Sean appeared to be highly reinforcing to Sean. Mr. Korobkin recommended that the TEAM utilize the Marblesoft Early Learning software program. He also recommended the Sponge Bob Square Pants software for typing. Mr. Korobkin also advised the TEAM to consider other Marblehead software programs such as Early Math Skills and Counting Money if Sean was successful with the use of the Marblehead software. (Exhibit S-18)
Jailyn Correa, MA, BCBA conducted a functional behavorial assessment and developed a new behavior support plan. Sean’s targeted behaviors included aggression, flopping, inappropriate social interactions and non compliance. The replacement behaviors included requesingt breaks, requesting items, taking a walk, accepting being told, “no,” participating in appropriate social behavior and asking others to play. (Exhibit S-13)
Since Sean began the program in September, 2010, the FLLAC staff has documented Sean’s progress. In November of 2010, Sean’s classroom teacher, Ms. Boivan, reported progress on many of Sean’s benchmarks. Sean had mastered counting 1-5 objects when given the verbal instruction, “count how many” and could count 5-10 objects 100% of the time given a full prompt or 25% of the time without a prompt. Sean was able to identify 59 out of 89 nouns presented to him using objects and picture books. Sean was able to point to the corresponding letter 25% of the time. (Exhibit S-14 and testimony of Boivan)
Ms. Boivan further reported that Sean was also able to hold a knife and fork correctly but was unable to cut his lunch independently. Sean was able to obtain his lunch and carry it to the table independently. Sean was able to independently complete 9 out of 10 steps of a tooth brushing routine and 6 out of 10 steps independently of a hand washing routine. (Exhibit S-14 and testimony of Boivan)
In his classroom routine, Sean was able to walk into school, hang up his backpack and unpack his materials for the day with 100% independence. He needed a full verbal prompt to go wash his hands and turn on the water but a partial prompt to wash his hands, get a paper towel and get in line. At the end of the day, Sean was able to get his home log and communication book independently and pack his back pack with a partial prompt. (Exhibit S-14 and testimony of Boivan)
As of February and March, 2011, Sean was making slow but additional progress4 . Ms. Boivan reported that Sean’s progress with letter identification and patterns had been variable. Sean had, however, mastered counting items 1-5 but required a full prompt to count items 6-10. Sean had increased his noun identification to 75 nouns. In addition, Sean was able to independently complete 9 out of 10 steps of a hand washing routine. Sean required a gestural prompt to complete the last step of the tooth brushing routine. Sean was independently able to request to use the bathroom 92% of the time and had only 2 accidents from October through February. (Exhibit S-7 and testimony of Boivan)
Ms. Boria, Sean’s speech and language instructor reported that Sean had maintained 80% accuracy identifying single words in a phrase and 80% accuracy correctly articulating error sounds at the single word level. Sean maintained 80% accuracy answering “who” and “what” questions with verbal prompting, 60% accuracy for “where” questions, 40% accuracy for “when” questions and 30% accuracy for “why” questions. In addition, Sean maintained 80% accuracy following one step directions. (Exhibit S-6 and testimony of Boria)
Sean’s occupational therapist, Ms, Hillson, reported that Sean could successfully trace targeted prewriting shapes. His writing skills remained at the preschool level. Due to frustration concerns, Ms. Hillson was continuing to work slowly with Sean. Sean was able to complete 1-7 steps of shoe tying. Due to Sean’s absenteeism, Sean was making variable progress writing his name. (Exhibit S-4 and testimony of Hillson)
Ms. Correa , the behavior analyst, also reported variable progress due to Sean’s absenteeism. Sean required a partial prompt to raise his hand and also to gain the teacher’s attention. With a partial prompt, Sean was successful 50% of the time raising his hand and 60% of the time gaining the teacher’s attention. He was able to wait his turn 90% of the time, up from 70% of the time and participate in group activities requiring turn taking 100% of the time, up from 90%. Sean was no longer attempting to give adults or strangers hugs and high fives. He was also able to say “hello” when meeting someone. Sean’s progress on waiting for instructions or reinforcements was variable. In addition, Sean’s non compliant behavior had decreased through January as well as his negative transition behavior and his property destruction behavior. These behaviors were occurring less than one time per day. (Exhibit S-5 and testimony of Correa)
During testimony Ms. Correa reported that since Sean returned to school on February 11, 2011, the duration of some of Sean’s maladaptive behaviors had increased. She also testified that there had been a few instances where Sean was “aggressing” towards his peers. She testified, however that these behaviors were typical behaviors of students with Sean’s profile. More importantly, Sean’s behavior was not placing him in danger of injuring himself or staff. It was Ms. Correa’s opinion that Sean was becoming more interested in his peers and forming relationships with them, but due to his lack of social skills was experiencing difficulty interacting with them. She also felt that Sean had missed several weeks of school and it was an adjustment for him to return to his behavioral program. Ms. Correa testified that if the duration of Sean’s maladaptive behaviors increased over the next month or so then it would be prudent to conduct another functional behavioral assessment to determine whether his behavior plan needed adjustments. (Testimony of Correa)
DISCUSSION
Sean is an individual with a disability falling within the purview of the Individuals with Disabilities Act (IDEA), 20 USC 1400 et seq . and the state special education statute, MGL c. 71B. 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 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 educational services are to be provided with other students who do not have a disability.6
FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.7 Similarly, the educational services need not be “the only appropriate choice, or the choice of certain select experts, or the child’s parents’ first choice, or even the best choice.”8
A student’s right to FAPE is assured through the development and implementation of the individualized education program (“IEP”).9 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”10
The appropriateness of the IEP is judged as of the time when it was proposed – that is, whether the IEP was “objectively reasonable at the time it was promulgated.”11
An IEP must be developed that is “reasonably calculated to enable the child to receive educational benefits.”12 The IDEA further requires that special education and related services be designed to result in progress that is “effective.”13
Massachusetts’ special education regulations similarly provide that specially designed instruction and related services described within the IEP must be sufficient to “enable the student to progress effectively in the content areas of the general curriculum.”14 Massachusetts also requires that the special education services be designed to develop a student’s educational potential.15 A child’s progress must be measured in terms of the child’s educational potential.16
Sean is eligible for special education services due to his diagnosis of autism. There is no dispute as to Sean’s eligibility. The first issue to be decided in this matter is whether the most recent IEP proposed by Leominster offers a FAPE to Sean. The school district, as the party seeking relief in the instant case, has the burden of persuasion.17 It is Leominster’s burden to show that the IEP it proposed will allow Sean to make effective progress; that is, that the IEP was reasonably calculated to provide Sean with a FAPE in the least restrictive environment. After a careful review of the testimony and the documentary evidence, I find that Leominster has met its burden.
The testimony presented by both the parents and the school district characterizes Sean as a pleasant, happy, social young boy who loves to please people but who struggles with significant communication, social skills, academic, gross motor and fine motor deficits and behavioral issues. Sean’s providers at the FLLAC intensive PDD program testified that Sean made a smooth transition into the program in September of 2010. They further testified that Sean has made progress, although variable, in certain areas. The staff attributed Sean’s slow rate of progress and variability to his absenteeism from school for several weeks from late December to early February.
After Sean began the program on September 7, 2010, the FLLAC staff gathered data and observed the manner in which Sean participated in the classroom and his direct instruction in physical therapy, occupational therapy and speech and language therapy. A facilitated TEAM meeting was held on September 30, 2010 and a new IEP was proposed that reflected the staff’s assessment of Sean, including his learning style and his classroom behavior. The staff shared their findings with the TEAM at this meeting and a new IEP was proposed following the meeting. Leominster and FLAAC testified that this IEP, dated September 30, 2010 to September to September 29, 2011, provides Sean with a FAPE in the least restrictive environment.
The testimony presented at Hearing was persuasive that the proposed IEP reflects Sean’s needs, sets attainable goals, is unique to Sean and, as implemented, has allowed Sean to make progress. Academic testing conducted by Haverhill in 2009, revealed that Sean’s scores in most academic areas, including academic knowledge, math reasoning, basic reading skills, oral language skills and written language skills, fall within the very low range. The proposed IEP contains a functional academic goal to address these needs through a multi-sensory approach.
Sean’s classroom teacher, Ms. Boivan, credibly testified that Sean has made some progress towards these goals, although in some areas his progress has been variable. She testified that Sean has made progress in the areas of one-to-one correspondence, rote counting, identifying common nouns and identifying community helpers. Sean’s progress in the areas of letter identification, number identification and patterns, however, has been variable. Overall however, Ms. Boivan testified that Sean is making progress and that she has not seen any regression nor does she expect to.
The proposed IEP also contains a self-care goal and includes benchmarks in the areas of hand washing, tooth brushing, face washing and toileting. Ms. Boivan testified that Sean has made good progress in these areas. Sean arrived at the FLLAC program with a toileting program but it is no longer needed. According to Ms. Boivan, Sean is now independent enough to access the bathroom. Sean has also made progress with hand washing, tooth brushing and face washing. It was her testimony that Sean has made great progress in terms of the school routine and what is expected of him.
The proposed IEP also contains a behavioral/social emotion goal with specific benchmarks in the areas of hand raising, turn-taking, grabbing materials prematurely, non compliance, property destruction and negative transitions. Ms. Boivan testified that Sean has made progress in all of these areas, although his progress has been variable in hand raising and waiting his turn. It was Ms. Boivan’s impression that the variability was the result of Sean’s absence from school for several weeks from late December to early February. Ms. Boivan further testified that she has not seen any regression in these areas.
Sean’s non compliant behavior, property destruction behavior and negative transition behavior had been improving through the first several months of school. The staff testified, however, that upon returning to school after missing several weeks, there was a slight change in Sean’s behavior. The staff was adamant in their testimony, however, that this increase in problematic behavior did not raise concerns for Sean’s safety, the safety of staff or the safety of Sean’s peers.18 The staff testified that Sean’s behavior did not differ from the other students’ behavior and was typical of children with Sean’s profile.
Ms. Correa, the Board Certified Behavior Analyst (“BCBA”) credibly testified that if the duration of Sean’s non compliant behavior increased or his aggressing behavior increased over the next few months, she would conduct another functional behavioral assessment and, if appropriate revise Sean’s behavior plan. Ms. Boivan also testified that she was not concerned with Sean’s behavior at this time and has the ability during the day to adjust the reinforcers they are using with Sean. More importantly, Ms. Boivan testified that Sean’s non compliant behavior does not interfere with Sean’s ability to access the curriculum and that he is, in fact, able to access the curriculum throughout the day.
The proposed IEP also contains appropriate physical therapy, occupational therapy and communication goals based on Sean’s needs. Ms. Wilbur, Sean’s physical therapist, testified that Sean has made progress in descending the stairs. Ms. Wilbur testified that she believes Sean’s non compliant behavior, attributable to his disability, affects his progress. Given Sean’s disability Ms. Wilbur testified that she is satisfied with the progress Sean has made thus far.
As with the other members of the staff working with Sean, both Ms. Boria, Sean’s speech and language therapist and Ms. Hillson, Sean’s occupational therapist, credibly and persuasively testified that Sean has made progress with his communication goal and occupational therapy goals. Specifically, Ms. Boria testified that Sean is now able to correctly articulate many more target sounds, has made improvement in answering W/H questions and is following some one step directions. Whereas his progress has been variable with numbers, shapes and letters, Ms. Boria testified that she expects improved outcomes with consistent attendance in the program.
Ms. Hillson was also persuasive in her testimony that Sean is making progress in the program. Ms. Hillson characterized Sean’s progress as “small gains.” She testified that Sean was beginning to generalize the skills that she was teaching him in occupational therapy into his classroom work, particularly with handwriting. Consistent with the other staff, Ms. Hillson testified that she has not seen any regression in Sean’s skills.
The IEP also proposes extended year services for Sean. The FLLAC Intensive PDD program operates on a 208 day school year. Ms. Boivan testified that there is a six week summer program that runs from 8:30 to 1:00 Monday through Friday. All of the staff provide the same services during the summer session that they provide during the year. Ms. Correa, the program supervisor testified that the summer program operates as a continuation of the school year program but for perhaps one or two field trips.
There was no evidence presented that supports parents’ claim that the proposed IEP would not provide a FAPE to Sean. Sean’s mother testified that she did not object to any of the goals that were proposed in the IEP nor did she express concern or object to any of the accommodations on PLEP A or PLEP B of the proposed IEP.19 There was also no expert or other testimony that Sean requires a longer summer program to prevent substantial regression. Finally there was no evidence, oral or documentary, that Sean requires an extended day in order to be provided with a free, appropriate public education. Although, the parents believe that Sean requires a longer summer program and an extended school day, they presented no evidence to support their claim. To the contrary, the FLLAC staff credibly and persuasively testified that their summer program was appropriate to prevent substantial regression and their school program without an extended day provides a FAPE to Sean.
Throughout the testimony, Sean’s direct providers reiterated that Sean was, in fact, making progress even though it was variable and sometimes slow. They also testified that Sean’s absenteeism from school negatively affected his progress. More importantly, however, all of Sean’s direct providers credibly testified that there was no substantial regression nor would there be regression if Sean was not provided extended day services or a longer summer program. The FLLAC staff was persuasive that the intensive PDD program was and continues to be appropriate for Sean and that he will continue to make effective progress in the program.
Leominster has met its burden in this matter. The IEP proposed from September 30, 2010 to September 29, 2011 is reasonably calculated to provide a FAPE to Sean in the least restrictive environment.
The second issue to be decided in this matter is whether the parents are entitled to “stay put” services pursuant to an IEP dated October 8, 2009 to October 8, 2010 developed by Haverhill.20 This IEP was accepted by the parents on April 15, 2010 but not signed by the Haverhill staff until April 27, 2010. Sean and his family moved to Leominster a short time later.21
Pursuant to the IDEA, “when a student transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same state, the new school district shall provide the student with a free, appropriate public education, including services comparable to those described in the previously held IEP, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with federal and state law”.22 Massachusetts has a similar provision.23
Sean was enrolled in the Leominster Public Schools on May 3, 2010. Pursuant to special education law, Leominster was obligated to provide Sean with a FAPE, including comparable services until such time as it adopted the Haverhill IEP or developed and implemented a new IEP that provided Sean with a FAPE. Leominster did not adopt Haverhill’s IEP but did develop a new IEP dated May 17, 2010 to May 16, 2011.
I find that with one limited exception (that is, the duration of the extended year component, discussed infra ) this IEP provided comparable services to the Haverhill IEP, and provided Sean with a FAPE in the least restrictive environment.
First, just as with the Haverhill IEP, the placement was also in a separate public day program (the FLLAC Intensive PDD program). The Leominster IEP also contained similar goals in Sean’s area of need (including functional academics, behavioral/social skills, communication skills, life skills, fine motor/self help skills and physical therapy skills) as well as comparable PLEP A and PLEP B accommodations. In addition, the IEP provided for extended day services and an extended year program: however, as compared to the Haverhill IEP, Leominster’s extended year component was two weeks shorter during the summer and did not include the February or April vacations.
Having found that Leominster developed an IEP that was comparable to the Haverhill IEP, and that the Leominster IEP provided a FAPE to Sean in the least restrictive environment, his compensatory entitlement would be limited to three weeks of extended year services.
ORDER
The September 30, 2010 to September 29, 2011 IEP is reasonably calculated to provide Sean with a FAPE in the least restrictive environment. Further, once Sean enrolled in the Leominster Public Schools, Leominster provided a FAPE to Sean, including services comparable to those reflected in the October 8, 2009 to October 8, 2010 but for three weeks of extended year services. Sean, therefore is entitled to three weeks of compensatory services.
So Ordered by the Hearing Officer,
____________________________
Ann F. Scannell
Dated: April 19, 2011
1
Sean is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
Leominster subsequently attempted to have Sean participate in the FLLAC summer program. His parents also rejected this offer.
3
Although a separate program, the FLLAC program is housed in the same building as the Houghton Elementary School so according to FLLAC, the program can not be identified on the IEP as a “separate public day program”.
4
Sean was absent from school the week of December 20, 2010 to December 23, 2010 and returned to school on January 2, 2011 following the Christmas break. Sean attended school from January 3, 2011 to January 20, 2011, missing 3 days due to a holiday and snow days. Sean’s parents removed him from school from January 20, 2011 through February 10, 2011. He returned to school on February 11, 2011.
5
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
6
20 USC 1400(d)(1)(A); 20 USC1412(a)(1)(A);20 USC1412(a)(5)(A); MGL c. 71B, sections 2,3; 34 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(C)
7
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate”education, it is clear that it did not mean a potential-maximizing education”.).
8
G.D. v. Westmoreland Sch. Dist ., 930 F.2d 942, 948 (1 st Cir. 1991)
9
20 USC 1414(d)(1)(A)(i)(l)-(lll); Honig v. Doe , 484 U.S. 305, 311-12 (1998)
10
Lenn v. Portland Sch. Comm ., 998 F.2d 1083, 1086 (1 st Cir. 1993)
11
Roland v. Concord Sch. Comm , 910 F.2d 983, 992 (1 st Cir. 1990)
12
Rowley , 458 U.S. at 207
13
20 USC 1400(d)(4)
14
602 CMR 28.05(4)(b) (“the TEAM shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall 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.”)
15
MGL c. 71B, s. 1; 603 CMR 28.01(3)
16
Lessard v. Wilton-Lyndeborough Cooperative School Dist., 518 F.3d 18, 29 (1 st Cir. 2008)
17
Schaffer v. Weast , 546 U.S. 49, 62 (2005)
18
The staff testified that all the students in the program, including Sean, all have 1:1 aides and the staff is highly trained so Sean’s behavior is not a safety risk.
19
Sean’s mother did testify for the first time at hearing about some concerns she had with the accommodations.
20
Although Leominster uses the term “stay put”, I am using a comparability analysis pursuant to the state and federal special education provisions applicable to students who transfer from one district to another district during the school year.
21
It is not clear whether this accepted IEP was ever implemented by Haverhill due to the family’s move to Leominster.
22
20 USC 1414(d)(2)(C)(i); 34 CFR 300.323(e)
23
603 CMR 28.03(1)(c)(1) provides, “When an eligible student or student’s family changes residence from one Massachusetts school district to another, the last IEP written by the former school district and accepted by the parent shall be provided in a comparable setting without delay until a new IEP is developed and accepted.”