Special Education Appeals BSEA #98-3521
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Lowell Public Schools
This decision is rendered pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq .; Chapter 766 of the Acts of 1972, M.G.L. c.30A; Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. §794; and to the regulations promulgated pursuant to these statutes.
A hearing on the above-numbered case was held on September 21, November 23, and 24, 1998. At the request of both parties, the record remained open until December 8th, 1998 for receipt of closing arguments. At Lowell’s request, such was extended until December 11, 1998.
Persons present for all or part of the hearing were:
Stuart Whittle Educational consultant
Gail Cahill Assistant Director, Lowell Public Schools
Mary Gallant Attorney for Lowell Public Schools
Bryan Anthony School Psychologist, Lowell Public Schools
Susan Pouerman (Janfaza) Special Education Teacher, Lowell Public Schools
Barbara Bezdeny Out-of-district Coordinator/ TEAM Chairperson, Lowell Public Schools
Aya Miyake Classroom teacher, Boston Higashi School
Daryl Isles Head teacher, Boston Higashi Schools
Ann Roberts Consulting Psychologist, Boston Higashi School
Rosinda DeMelo Master Teacher, Boston Higashi Residence
Marcia Feist-Moore Coordinator Student Services, Boston Higashi School
Susan Craig Director of Training, AGH Associates
Sandra Sherwood BSEA Hearing Officer
1. Whether Lowell Public School’s (hereafter, Lowell) 502.6 prototype IEP calling for Student’s placement at the Boston Higashi School (hereafter, Higashi) provides Student with an educational program which maximizes her educational development in a safe and least restrictive setting; if not,
2. Whether The Learning Center (TLC) or the New England Center for Children (NECC), Mother’s chosen schools, offers an educational program which maximizes Student’s educational development in the least restrictive setting.
Although her daughter has done well at Higashi, she wants a change in schools. Because of past allegations of abuse and of mistreatment, Mother cannot trust that abuse is not ongoing. Further, she asserts that the school is not receptive to parents, and are uncooperative in her desire to visit privately with her daughter. Finally, Mother also asserts that Higashi fails to offer her the year round program, and that she needs this. She requests that her daughter be transferred to TLC or to NECC, asserting that such schools are designed for autistic children, are year round, and are a warmer, more inviting place for parents.
Student is excelling while at Higashi, and to transfer her because of her mother’s desires, is not in Student’s best interest. She would suffer substantial regression if she were to be moved during adolescence. Further, she would suffer substantial regression because the teaching philosophy is so different at TLC and NECC. These schools highlight the discrete trials in the 1:1 setting using the ABA methods. In contrast, Higashi highlights a more holistic approach, relying on social motivators and on intrinsic rewards. Finally, Lowell asserts that this more holistic approach is indeed the appropriate teaching methodology for Student, and the ABA methodology is contraindicated for this student. Although Lowell is sympathetic to the issues of parental trust, the facts do not support the allegations of abuse, such allegations occurred a long time ago, the minor incidences are to be expected, given Student’s very active nature, and finally, minor incidences occur much less frequently. As to the request for year round services, Lowell asserts that Higashi’s schedule is desirable for Student. It provides a full year program with the exception of the four, two, and two week vacations, and Student shows no evidence of regression during these periods.
STATEMENT OF THE FACTS
1. Student is a delightful eleven year old girl who, since age six, carries the diagnosis of autism. She communicates via gestures, and is able to make her basic needs known to her teacher. She also is able to communicate some of her wants by using ten photos, and can indicate her emotional status with five Mayer-Johnson cards. She has a receptive vocabulary of 80 words by using the 80 Mayer-Johnson cards. She is able to write her name, can copy words, is beginning to copy sentences, and can match and sequence items. She can follow multistep verbal directions. She enjoys science. She dresses herself, toilets independently with monitoring, uses table manners when eating, and completes simple chores. She is able to complete whole tasks without cueing, and can stay on task for significant periods of time. Behaviorally, within a structured school environment and with familiar staff, she maintains self-control. However, she tests new staff and new situations. She responds well to high expectations and to interesting activities. She has athletic strengths: she can ride a bicycle, uses stilts, and jogs. In the area of social skills, she is receptive to social praise, she looks to her teachers for praise, she is beginning to initiate interaction with peers, and can interact with peers, such as throwing a ball back and forth. She is extremely self-motivated and wants to learn and try new things. Music, physical exercise and social praise are all major reinforcers for her. (Isles, Roberts, Miyake, Anthony, DeMelo, School Exh. 3, 5,)
2. Student has attended Higashi since July, 1993, and has been a resident there since October, 1993. Higashi educates its students using a highly consistent set of routines in a group dynamic approach – Daily Life therapy. It prides itself on its focus on physical exercise, music, and art as essential components of their educational program. Along with her peers, she runs several miles/day, and exercises several times/day. Further, she has learned to ride a bike, uses stilts, roller skates, enjoys art projects, cooking, and going shopping at a mall, etc. The program also prides itself on its focus on peer group pressure as a motivator and as a form of behavioral control. Her academic program includes language arts, math, science, activities of daily living, taught in group settings of approximately 6:1. (Miyake) In the residence, the highly structured programming continues. They frequently go on community outings, to restaurants, parks, malls, movie theaters. Higashi also incorporates some reverse mainstreaming, where typical peers from the local schools visit Higashi and work with the students. Higashi is open year round, with the exception of four, two, and two week vacations, a time when Higashi feels it is important for the students to be with their families.
Higashi’s program for the parents are multifaceted. First, parents are expected to participate in the sports events, cheering their children along, and also are encouraged to participate in the various community outings. This allows them to observe the staff and model their behavioral techniques. Higashi also offers regular workshops for parents, weekly phone calls, in-home training, and a daily communication book. Finally, Higashi offers services in the home (School Exh. 3, Isles, DeMelo, Craig, Miyake).
3. Student has made significant progress and is doing well at Higashi; the parties do not dispute this. (Roberts, Anthony, Whittle, Miyake, DeMelo)
4. Mother’s desire to transfer her daughter to a different residential school is not founded in a concern regarding the education. Rather, it is founded in concerns regarding Higashi’s treatment of parents, and in fears of abusive treatment towards her daughter. (Mother) Given the importance for parental involvement with children such as her daughter, she asserts that her daughter should be in a program where she can more easily participate in her daughter’s education. Further, given the history of alleged abuse, she asserts that, for safety reasons, her daughter should be transferred to a different school. Her allegations regarding Higashi’s treatment of parents arise from Higashi’s rules for parental visits in the residence. They require one weeks notice1. Further, they require that staff be within a close distance when parents are in the residence. Mother sees this as an infringement on her private time with her daughter. Higashi sees this as necessary to protect all the students, and to assure backup help if her daughter decides to bolt.(School Exh. 18, Isles, Roberts, Mother) As to the allegations of abuse, Mother’s concerns originated in 1995 her daughter started to eat her feces before the staff could stop her. Higashi staff assert that her daughter had no history of pica, and they were therefore caught off guard, however, they responded appropriately by ensuring that it did not happen again. (Roberts) Also, in 1996, a driver who was behind the Higashi bus, reported to Higashi that staff were abusing Student.(School Exh. 21) After an investigation by DSS, it was determined that staff were redirecting Student to sit down, and that such was misinterpreted by the driver. (School Exh. 21, Roberts, Isles) Also in 1996, Mother received an anonymous letter from a former staff person who alleged that two resident staffpersons were abusing her daughter. Again, an investigation by Higashi and by DSS determined that no such abuse occurred, and that the letter was written by a disgruntled employee. (Roberts, Isles) Finally, there have been a series of incident reports, where her daughter broke her finger, bumped her head, scraped her arm, cut her knee, etc. These incidence reports have, in the past two years, decreased significantly. (DeMelo, School Exh. 20, 25) Higashi asserts that the incidences are inevitable, given Student’s very active nature, and given the extensive physical education program. (Craig, Miyake) However, as Student has gained control over her behaviors, the incidences have decreased significantly. (Isles, DeMelo)
5. Mother asserts that Student should transfer to TLC or to NECC, for these programs address the needs of the autistic students, and, according to Mother, are a warmer, more welcoming community for the parents. Both TLC and NECC emphasize the Applied Behavioral Analysis methodology (ABA), although TLC employs a more eclectic approach.(Whittle) With ABA, the students work predominantly in a 1:1 setting, with discreet trials rewarded with such things as food. Such a program is distinct from Higashi’s program in several ways. Whereas ABA is provided predominantly in a 1:1 setting, Higashi works predominantly in group settings. Whereas the ABA relies on discrete trials, Higashi relies on the larger activities. Whereas ABA relies on food reinforcers, Higashi relies on social reinforcement (through peer pressure and through social praise) and on the inherent reward in learning something or achieving something (such as riding a bike). (Isles, Anthony, Whittle) Approximately one third of TLC’s students are autistic and have profiles similar to Student’s; TLC also services students who are higher functioning learning disabled with ADD and emotional issues. Two of the classrooms were appropriate for Student: there are 3 – 6 children in each class. There are 6-7 children in each residence. Although the ABA approach is used, it is individualized with a more eclectic approach. TLC also provides occupational therapy, behavioral supports, and parent training. (Whittle) NECC’s primary methodology is ABA. However, like Higashi, it attempts natural settings, integrating therapies when possible. The goals and interventions at NECC were similar to those at Higashi’s. However, Higashi does more peer group work; NECC does more teacher oriented work. (Craig). NECC, like Higashi, supports parents, however, according to Dr. Craig, Higashi is run more like a boarding school; NECC has a more comprehensive programs for parents. (Craig, Parent Exh. 1, Isles)
Mother relies on the opinion of Ms. Whittle, an educational consultant, in asserting that TLC or NECC would provide an appropriate educational program for her daughter2. Ms. Whittle observed Student at Higashi on June 5, 1998, and also visited TLC. She acknowledged that Higashi is well respected, and noted many positive points about Student’s performance at Higashi. She noted Student’s knowledge of and participation in Higashi’s activities; Student knew the basic postures, she clapped and vocalized along with the recorded music, she was able to go to the front of the class and sing a song, and enjoyed the activity; she independently went to the bulletin board and changed the picture calendar to the “art” slot when she knew it was time for art. Thus, Ms. Whittle noted many positive points about her performance at Higashi. She was concerned about Student’s communication goals, and recommended a speech/language evaluation to address augmentative communication. (Whittle)
Despite her respect for Higashi and her acknowledgment of Student’s success there, Ms. Whittle stated that a more community based residence such as TLC would be a better match for her. It would be less restrictive, and would allow more flexibility for parental visits, rendering it a better match for Student’s family. (Parent Ex. 1, Whittle) Further, Ms. Whittle was unconcerned about any impact the transition to TLC or NECC would have on Student; she would probably be able to recoup any losses within two months or so. Second, the ABA approach used by NECC and TLC is a well respected teaching approach for the autistic student population.(Whittle) Finally, Ms. Whittle opined that a consistent year round program is best for Student, for autistic children need routine and tend to regress behaviorally without their learned routines. She stated however, that Student would regain her behavioral skills within a few days of returning to school. (Whittle)
6. Lowell has refused to accede to Mother’s request, for they assert that a transition to a new school, particularly a school with a very different teaching philosophy, would be extremely detrimental to Student’s educational development. Further, they assert that the ABA methodology is inappropriate for Student. They rely on the expertise of Dr. Roberts, a consulting psychologist to Higashi; Bryan Anthony, school psychologist at Lowell; Dr. Susan Craig, Director of Training with AGH Associates; and three Higashi staff persons Ms. Miyake, teacher; Ms. DeMelo, residential teacher; and Ms. Isles, head teacher.
Dr. Roberts noted that “difficulty with change is a hallmark of severe autism”, and that because of this, she predicts that a change for this student would “severely disrupt her emerging self-confidence which is essential to the learning process.” Further, she asserts that because Student is motivated by the intrinsic rewards of praise and self-pride, a change to the ABA approach would be a step backwards. (School Exh. 3, Roberts) (Dr. Craig did point out, however, that social motivators are possible with the ABA method, yet still, the ABA is more effective for younger students, and this student is past the ABA methodology. (Craig) Mr. Anthony reiterates Dr. Roberts’ opinion that Student has made excellent progress at Higashi, that she is highly motivated by the intrinsic rewards of success, that she has achieved a high level of independence, and that she would regress if she were transferred to a different program. He points out that Student is entering puberty, a time when autistic children may experience significant behavioral regression – and that this only reinforces his opinion that transferring at this point is counter productive. (School Exh. 5, Anthony) Although Dr. Craig also recommends staying at Higashi, she disagrees that transitioning at puberty would be more difficult. (Craig) Dr. Craig, Dr. Roberts, and Mr. Anthony each stated that Student is so motivated by social praise and by the inherent reward of the activities, that switching Student to the ABA methodology which relies on food reinforcers, would be a big step backwards. Further, learning discrete trials in a 1:1 setting would ultimately be boring for Student, and would lead to behavioral problems extinguished at Higashi. Student is extremely comfortable and happy in her current routines, with the Higashi staff and peers, and taking this away from her would be wrong. (Roberts, Anthony, Craig) Dr. Craig did recommend changes to address the allegations of abuse. First, she recommended a “fresh start” at Higashi, by switching Student’s staffperson from the teacher alleged to have abused Student, to a new teacher. She also recommended looking at a physical therapy plan to address the safety concerns. Further, she recommended a review of her communication program. Finally, she recommended that the TEAM consider her long range goals. (Craig) Based on these opinions recommending that Student stay at Higashi, Lowell has refused to accede to Mother’s wishes. Student continues her education at Higashi, pending the outcome of this decision.
7. Higashi has tried to address Mother’s concerns in several ways. First, any accidents are documented in incidence reports which are copied to Mother. Second, Student’s teacher calls Mother on a weekly basis to discuss any concerns. Higashi has also tried to accommodate Mother’s wishes in her visits with her daughter. They agree to allow Mother to be alone with her daughter, and staff keep a certain distance. Second, they agree to be more flexible on visitations scheduling. (Miyake, DeMelo)
FINDINGS AND CONCLUSIONS
I. I find that Lowell’s provision of Student’s education at Higashi maximizes Student’s educational development in the least restrictive and safe setting, and that a transition to TLC or NECC is not warranted or required, and at this time, is not beneficial for Student. My reasoning follows:
1. Mr. Anthony Dr. Craig, and Dr. Roberts were persuasive in their assertions that Higashi is offering Student a setting and teaching methodology wherein she is thriving and maximizing her educational development. A look at her progress is a testament to this. When she entered Higashi, she had unpredictable tantrums and aggressive behavior requiring 1:1 supervision, she had poor gross motor and fine motor skills, was unsteady on her feet, she had pica behavior, had some ADL skills, but only with much supervision, she could not stay with a group or with an activity more than momentarily, receptively , she did not follow directions, she had poor eye contact, and she resisted social interaction. Now, she is characterized as one of Higashi’s success stories. In the Higashi setting, she controls her behaviors, she understands and has responded to the daily routines, she is eager to learn, she is beginning to generalize her learned behavior to staff members other than her teacher, she can be a classroom leader, she uses photos and Mayer-Johnson cards to communicate. She has learned to ride her bike, jog several miles/day, etc. (Isles, Anthony, Roberts, School Exh. 3, 5) Further, given Student’s responsiveness to social praise and to the intrinsic rewards of accomplishing activities, Dr. Roberts, Dr. Craig, and Mr. Anthony are persuasive in their assertion that Higashi’s Daily Life therapy teaching methodology is indeed appropriate for Student. In fact, Mother does not dispute Lowell’s position that Higashi offers Student an excellent educational program, and that Student is doing well there. (Mother, Whittle)
2. Mother was unpersuasive that the four, two, and two week vacations render Higashi’s program inappropriate for Student, for she produced no evidence showing that her daughter regressed during these times to such an extent that she does not very quickly recoup any loss. Her own teacher, Ms. Miyake testified that she has observed no regression during vacation periods. In fact, Ms. Whittle, the consultant on whom Mother relied, testified that, although she had no specific information regarding Student, that typically, students recoup skills within two – three days after vacations. (Whittle) Ms. Whittle’s comment that Student requires routine and structure are well taken, (and Mother is encouraged to involve herself in the training so that such structure can be provided in the home) however, this in itself is insufficient to support Parent’s claims that there shouldn’t be vacations, for, as Ms. Whittle admits, the vacations do not interfere with her education.
3. Mother was unpersuasive that Higashi’s attitude toward and treatment of parents, renders its program inappropriate for her daughter. It may be that Higashi’s style is not one Mother is comfortable with. However, Higashi does offer parent training through its workshops and home training, it encourages parent participation by joining them on various community outings, it allows for onsite visitations, it holds weekly phone calls with Mother, and it uses journals for home-school communication. Its rules regarding notice for visitations and regarding staff supervision during visitations, appear to protect the student population and are therefore reasonable. (Isles, Miyake, DeMelo) It may be that a different school is more conducive to parent participation, but as long as Higashi addresses the student’s needs for parental training and involvement, then its program is not deemed inappropriate just because Mother perceives Higashi to be unwelcoming towards parents.
4. Mother was also unpersuasive that Higashi is unsafe for her daughter. Certainly, the past occurrences of eating feces (1995), and of a broken finger are disturbing, especially when one adds to this list the unsubstantiated 1996 allegations of abuse. But, given the fact that the occurrences were more than three years ago, the allegations of abuse were found meritless, the minor incidences are explainable given Student’s very active nature and the active physical education program, the evidence is not of sufficient concern. Dr. Craig’s recommendation that a physical therapist consult Higashi to limit the chances of incidences is a good one. Despite the finding that Higashi is safe for her daughter, Mother’s lack of trust, given the history, is troubling, for any parent wants to know that his/her child is safe, and even more so where the child is boarding at school and cannot communicate effectively. It is true that the major incidences and the alleged abuse are in the significant past, and that current incidences are not out of the ordinary. Yet, Mother maintains her fears. Accordingly, it is hoped that Higashi will make every attempt to address these fears. Further, it should be of some comfort to Mother, knowing that 1) the staff are required to report any abuse to the Department of Social Services, and 2) persons not employed by Higashi are continually at Higashi and would witness abuse if it were occurring.
II. Given the finding that Higashi offers Student an education which maximizes her educational development, Mother has no right to an appropriate program of her choosing. Thus, there need be no further look at the appropriateness of NECC or TLC. However, comments are warranted.
1. First, as to Lowell’s allegation that NECC and TLC are inappropriate because the ABA methodology is inappropriate for Student: the ABA methodology would be a step backwards for Student, and as such, is not the appropriate methodology. Dr. Roberts’ and Mr. Anthony’s opinions regarding this were based 1) on a thorough understanding of Student’s strengths and weaknesses, and on her performance at Higashi’s holistic, group approach to learning, and 2) on a reasoned analysis comparing the ABA and holistic approaches. (Roberts, Anthony) Thus, Dr. Roberts’ and Mr. Anthony’s opinions are credited. In contrast, Ms. Whittle states that the ABA methodology is a well recognized methodology, but she failed to address its appropriateness for Student. (Parent Exh. 1, Whittle)
Having found the ABA methodology inappropriate, it is unclear from the record whether NECC or TLC could sufficiently adapt their program to meet Student’s needs. The various experts disagreed on this issue, and without testimony from NECC or TLC, this issue remains unresolved. Ms. Whittle, Dr. Roberts, and Mr. Anthony each testified that NECC uses primarily the ABA methodology, yet Dr. Craig, Lowell’s witness, testified that NECC can address Student’s higher skill levels and her responsiveness to social settings. (Craig) Yet, Dr. Roberts and Mr. Anthony had asserted that the ABA methodology did not address the higher skill levels and the need for social settings. (Roberts, Anthony) Further, Ms. Whittle, Parent’s witness, was unpersuasive in her assertion that NECC is appropriate for Student. All she says is that NECC offers the residence in a more normalized setting, and this would be in Student’s best interest. Her statements are clearly insufficient to counter the strong substantiated opinions of Dr. Roberts and Mr. Anthony.
Rendering a finding regarding the appropriateness of TLC is also difficult without further evidence. TLC apparently offers a more eclectic approach, and it may indeed be able to tailor its program to Student’s needs. (Whittle) However, Mother provided insufficient information on TLC’s program to render an informed opinion. Further, it would be necessary to get TLC’s response to Dr. Robert’s and Mr. Anthony’s concern that there is the risk of modeling inappropriate behavior, for unlike Student, many of the students have the diagnosis of retardation. (Anthony, Roberts).
2. Second, as to Lowell’s assertion that the change in schools would in itself be harmful for Student: in rendering a finding on this issue, Dr. Roberts and Mr. Anthony, rather than Ms. Whittle must be credited with their opinions. Although Ms. Whittle may have expertise regarding the autistic population in general, she did not have an in-depth understanding of Student’s progress at Higashi, of Student’s reliance on the routines and staff at Higashi, and of Student’s difficulty with transition and with new staff. In fact, when testifying on this issue, Ms. Whittle gave little reasoning in asserting that any regression would be recouped in four to six weeks. (Whittle) In contrast, Dr. Roberts and Mr. Anthony had more extensive knowledge of Student necessary to assess Student’s reaction to change, both in her behavior as well as in her self-esteem, and her ability to recoup the losses. Their opinions were reinforced by Higashi staff’s testimony – staff who had the hands on understanding of Student’s responses to change, her reliance on staff and on Higashi routines, her tendencies to bolt with new staff, etc. (Miyake) Accordingly, Dr. Roberts and Mr. Anthony were persuasive that Student would indeed have great difficulty with a change in schools and could face long standing regression. (Roberts, Anthony)
Although Lowell has prevailed in this case, more must be said. For sure, the evidence supports Lowell’s position that Student should stay at Higashi – it offers an excellent program, and Student is excelling there. However, it is the humane thing to consider Mother’s desires, as long as that desire does not interfere with the student’s educational progress. It is not unreasonable to believe that, if Lowell and Higashi staff put their minds to it, they could help an alternate school develop a program and a lengthy transition period so as to prepare Student for a switch to a different school more acceptable to parent. This might entail working cooperatively with staff from TLC, NECC, or maybe some other school. It may entail Student’s visits to a new school for a period of time helping Student adjust to a new setting, and helping the new school incorporate some of Higashi’s techniques and activities/social milieu proving so successful for Student. As such, the legitimate concerns raised by Higashi might be addressed so that a change a programs could be appropriate for Student. Certainly, any parent wants to believe that his/her child is in the hands of educators he/she trusts and whose philosophy he/she agrees with. Such desire is intensified when his/her child cannot communicate as to what is happening at school.
Accordingly, it is hoped that Lowell and Higashi will do what they can to prepare Student and to help design a program in a school agreeable to Mother.
A transfer to such school, however, is recommended only if Student is deemed ready for a change, and the newly designed program is deemed appropriate for Student.
Lowell shall continue to implement its current IEP calling for Student’s placement at Higashi. However, in the interest of honoring Mother’s request, it is hoped that Lowell and Higashi will consider efforts to create/locate an appropriate educational program more agreeable to Mother. Further, as recommended by Ms. Whittle and by Dr. Craig, Lowell shall conduct a speech/language evaluation to address augmentative communication and a physical therapy consult to address safety concerns.
BSEA Hearing Officer
Date: February 16, 1999
At the hearing, Higashi offered to reduce this notice requirement.
Mother provided no testimony from NECC or TLC staff, nor did she provide evidence that Student would be accepted there, and that an opening exists.