COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Northampton Public Schools
BSEA #01-5284
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 29 U.S.C. § 794, 20 U.S.C. § 1401 et seq ., and the regulations promulgated under those statues. A hearing was held on September 14, 2001, at the offices of Catuogno Reporting Services in Springfield, MA. Those present for all or part of the proceedings were:
Parents
Gillian Fahmey May Center Consultant
Marion Van Arsdell Teacher- Northampton Public Schools
Paul Brown Speech- Language Pathologist-Northampton
Louise Homstead Teacher- Northampton Public Schools
Craig Jurgensen Associate Director of Pupil Services-
Isabelina Babcock Director of Pupil Services- Northampton
Regina Tate Attorney for Northampton Public Schools
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parents marked P-1 Though P-24; documents submitted by the School marked S-1 Through S-30; and approximately 4.5 hours of recorded oral testimony. Both parties submitted written closing arguments by September 28, 2001, and the record closed on that date. The parents chose to proceed pro se.
ISSUES
1. Whether the Student’s participation in a mainstream camp program, in addition to the daily 3 hour special education summer school and the home education component offered by the Northampton Public Schools, is necessary to prevent substantial regression in the Student’s language and social skills?
2. Whether the actions of the Northampton Public Schools concerning the provision of special education to the Student during the summer, 2001, were consistent with the procedural requirements of M.G.L.C. 71B and 20 U.S.C 1401 et seq ?
PARENTS’ POSITION
The Student requires a full day, 48 week, special education programming in order to prevent substantial regression. The School failed to offer a comprehensive summer educational component for the summer, 2001. The Parents seek public funding of a regular camp program to supplement the five week, half-day preschool in order to meeet the Student’s need for typical peers and activities to practice language and social skills.
SCHOOL POSITION
The Student has made substantial educational progress and needs only minimal reinforcement and practice opportunities to prevent regression. The five week integrated summer preschool offers educational activities and related services designed to maintain the Student’s skills over the summer. In addition, the School offered home-based tutorial services for three weeks to minimize the effects of the vacation break in educational programming. The Team did not support a regular camp placement as educationally necessary for this Student.
SUMMARY OF THE FACTS
1. The Student is a five year old with a diagnosis of pervasive developmental delay/autism spectrum disorder. He has received special education services through the Northampton Public Schools since the age of three. Starting with an intensive home based program the Student gradually transitioned to more integrated preschool settings. During the summer, 2000, the Student attended an integrated preschool three hours a day, five mornings a week, and received an individual home based program for sixteen hours per week, in addition to direct occupational and speech-language therapy. (P-9, S-11) The split center-based, home program model of service delivery continued through most of the 2000-2001 school year. In April, 2001, the Student began staying at school for lunch and attending a non-integrated specialized program in the afternoons in lieu of the home program. (Mother, Jurgensen)
2. On April 27, 2001 the Team met to discuss the Student’s transition to kindergarten in September, 2001, as well as services during the summer 2001. (S-6) During a nearly two hour meeting, the Team focused its discussion on transition planning and updating goals and objectives, and only barely touched upon extended year programming. The Team reconvened on May 8, 2001, to complete consideration of summer services for the Student.
(Mother, Jurgensen; S-6)
3. Craig Jurgensen, the Assistant Director of Pupil Personnel Services for Northampton, chaired the Team meeting on May 8, 2001. He testified that the Team agreed that the Student had made significant progress in all areas over the course of the school year. Initially the Student was non-verbal, non-interactional and non-compliant. By the Spring, 2001, the Student had reciprocal language, participated in the school routine and played with peers. Mr. Jurgensen stated that it was the sense of school personnel that the Student needed the summer preschool program more to maintain a sense of structure in anticipation of kindergarten, than to prevent regression in discrete skills. He testified that the Parents’ asked the School to fund an individual aid for the Student while he attended a regular camp program at the People’s Institute so the Student could be with his sibling. According to Mr. Jurgensen, the Team did not believe that the Student needed to attend a recreational summer camp to prevent regression. (Jurgensen)
4. Louise Homestead has been the Student’s teacher in the integrated preschool for two years. In addition she worked with the Student in his home six hours per week throughout the 2000-2001 school year. She attended both the April 27 and May 8 Team meetings and participated in the discussions concerning summer programming for the Student. She testified that the Student’s history of regression indicated an ongoing need for special education services during the summer. She is familiar with the summer preschool program available in Northampton. She stated that the preschool is integrated and language based and is appropriate for the Student. She did not recommend any special education or related services for the Student during the summer 2001, other than attendance in the summer preschool. In her opinion the summer preschool offered sufficient services to prevent regression. Ms. Homstead also testified that the Team was concerned that the gap between the end of summer preschool and the beginning of kindergarten, was too long for the Student. The Team therefore proposed an additional home component for the week immediately following the end of the school year 2000-2001 and the two weeks immediately preceding the commencement of the school year 2001-2002. The parents declined those services at the Team meeting. (Homstead)
5. Gillian Fahmey has worked with the Student’s family as an inclusion specialist for the past two years. As a May Institute consultant Ms. Fahmey coordinates services, interventions and communication between the home and school settings. She testified that the Student has made significant progress in all areas in the time she has known the family. Initially the Student used a picture exchange communication system, while now the Student has complex verbal language, strong academics and concrete cognitive ability. Initially the Student was socially isolated, now he is comfortable interacting with most peers and adults. Ms. Fahmey attended the Team meetings on April 27 and May 8, 2001. She testified that she recommended that the Student attend an integrated preschool program over the summer. The Team was concerned about the length of the vacation at the end of the summer, and therefore offered a supplementary home component. Ms. Fahmey recalled that the parents’ requested that the School fund the Student’s placement at the People’s Institute camp in the afternoons. She believes that camp is a great activity for all kids, but did not recommend it as part of the Student’s IEP. (Fahmey)
Ms. Fahmey continued to see the Student weekly over the course
of the summer 2001.She found the teachers at the summer preschool responsive to the Student’s needs and able to implement all suggested educational strategies. She did not see the Student at the People’s Institute camp. The parents did not ask Ms Fahmey to observe the People’s Institute and she had no contact with staff there. (Fahmey)
6. The Student’s mother testified that the Student needs a camp program in addition to the integrated preschool for two principal reasons: the People’s Institute camp provided the type of full day continuity of structure and routine which the Student needs to maintain focus and behavioral control; and the People’s Institute camp provided a fully mainstream experience in which the Student could practice and refine his language and social skills. The mother acknowledged that the Student received no special education or related services at the People’s Institute. The parents did not share the Student’s IEP or any assessments with the People’s Institute staff. The Student performed so well at camp that the parents declined the school’s offer of home programming in order to continue the group activities available at the People’s Institute. (Mother)
7. There were no current educational assessments in the record available to the Team that recommended summer educational services.
(S-9, 10, 12, 5-P-3, 6, 7, 8, 10)
8. On May 31, 2001, the Northampton Public Schools offered an IEP1 to the parents containing the following summer services: preschool 2.6 hours per day, 5 days per week; speech/language therapy ½ hour twice per week; and occupational therapy ½ hour twice per week for five weeks. (P-4, S-6) The parents rejected the proposed IEP on June 14, 2001as inadequate, citing the failure of the school to provide for a summer camp in addition to the summer school. (S-1)
9. In a letter dated May 22, 2001, the Student’s pediatric neurologist stated that he should have a
“ year round” special education programs to prevent regression. (P-1, S-8) There is no indication in the letter that the author was aware of the components of the Student’s school year program or what was offered to him for the summer, 2001. There was no discussion of the Student’s educational functioning, nor was any area of functioning vulnerable to regression identified. The father testified that the Student had not been seen by the neurologist for six to twelve months before the letter was written. (Father)
10. Susan McQuiston, a pediatric psychologist who had been following the Student since April, 1998, recommended that he be provided an intensive, twelve month educational program to prevent skill regression. In a letter dated May 24, 2001, Dr. McQuiston, wrote that a “structured and developmentally appropriate summer camp with the support of a paraprofessional to facilitate his full inclusion in the activities of the program, would provide an excellent opportunity…to practice and strengthen his emerging social and communication skills.” (P-2, S-7) Dr. McQuiston had last seen the Student on June 9, 2000. (S-25; father) There is no indication in the record that she was aware of the Student’s educational functioning in May, 2001. Nor is there any indication that she was familiar with the special education services the Student received in the 2000-2001 school year, those that had been proposed for him for the summer, 2001, or the camp program selected by the parents at the People’s Institute.
11. On June 12, 2001, the parents met with Mr. Jurgensen to discuss their rejection of the proposed IEP and their request for school department funding of summer camp for the Student. They agreed to some modifications of the school year portion of the proposed IEP, but continued to disagree about summer services. (S-3) The School offered a new IEP, which added a home tutorial component to the proposed summer preschool. Under this plan the Student would receive 1 1/2 hours daily of home-based services for seven days between the end of the school year and the beginning of summer school, and for fifteen days between the end of the summer school and the beginning of the new school term in September, 2001. (S-2) The School declined to fund the summer camp requested by the parents contending that the summer preschool placement would adequately address the goals and objectives outlined in the Student’s IEP and that a regular camp did not provide the specialized instruction contemplated for extended year programs. The parents rejected the portion of the proposed IEP that provided for home tutorial services, electing instead to place the Student in the People’s Institute camp. (Mother, Jurgensen)
12. The People’s Institute is a regular education childcare, preschool and camp. In the summer, 2001, the Student attended a regular camp program in the afternoons of the days he attended the Northampton summer preschool, and for full 9-5 days when the preschool was not in session. He did not have an individual aide. There was no evidence that any modification to the regular staffing, activities or environment were made to accommodate the Student. The parents testified that they did not provide any assessments, evaluations or IEPs to the People’s Institute. There was no oversight or coordination of the Student’s activities at the People’s Institute Northampton Public Schools. The parents did not observe the Student at the People’s Institute except at pick-up and drop-off. They testified that the Student’s placement there was successful that they declined the school’s offer of home-based after school tutorial services for the Fall, 2001, in favor of continuing the Student in the People’s Institute child-care program. (Parents)
13. There were ten children in the integrated summer preschool operated by the Northampton Public Schools in 2001, six with IEPs. The program was staffed by a certified special education teacher, a speech-language pathologist and an occupational therapist. An autism consultant attended the program weekly. The program was structured to address the Students’ IEP goals and to promote social and language growth. (Jurgensen, Brown, Homstead, Fahmey) The parents did not dispute the appropriateness or the efficacy of this component of the summer program for the Student.
FINDINGS AND CONCLUSIONS
The parties agree that the Student has special learning needs as defined in 20 U.S.C. §1401 and M.G.L. c. 71B and is thus entitled to receive a free, appropriate public education. The only issue in dispute is whether the School is obligated to fund, as part of the Student’s extended year program, a regular recreational camp selected by the parents. After careful consideration of all the evidence presented, and of the arguments of both parties, it is my determination that the facts established in this hearing do not support a finding of school responsibility for this special education Student’s summer camp program. At the outset I must acknowledge that due to the parents’ pro se status, several interesting, and important, legal issues were not addressed. Chief among them is the apparent discrepancy between the federal and the state standards for entitlement to extended year services. Compare 34 CFR 300.309 and 603 CMR 28.05(3) (d) (1). Another issue raised only tangentially was whether, and under what circumstances, a recreational summer camp may function as an appropriate component of a Student’s extended year special education plan. The facts established in this matter the facts do not support an extended discussion of these issues.
The preponderance of the credible evidence in this hearing compels the finding that Student is not, entitled to a summer camp program in addition to the five week integrated preschool. Neither of the Student’s teachers recommended a summer camp as part of the Student’s extended year program. Ms. Ban Ardell recommended only the integrated preschool; Ms. Homstead recommended home-based special education in addition to the preschool to provide for continuity of services. (Homstead, Van Arsdell) The Student’s home-school autism services coordinator did not recommend summer camp as part of special education service delivery. (Fahmey) No one other than the parents at the Team meeting on April 27, 2001, nor at the Team meeting on May 8, 2001, recommended summer camp for the Student. (Jurgensen) There are no credible professional recommendations in the record for a fully mainstream program for this Student. There is no evidence that any of the goals and objectives of the Student’s IEP could be addressed only in a summer camp. There is no evidence that the goals and objectives of the Student’s IEP could appropriately addressed in the summer preschool program. There is no evidence that, had the Student’s IEP had goals and objectives pertinent to summer camp, that the People’s Institute had the staff, environment, activities, expertise or commitment to address them. Indeed minimal evidence supporting a summer camp for this Student, and it is entitled to little weight: The letter concerning extended year services from Dr. Donnelly is based on stale information, is non-specific, and does not reference “camp” (¶ 9); the letter concerning summer camp by Dr McQuiston is based on stale information, recommends services not secured by the parents, and does not evince knowledge of the programs actually available to the Student (¶ 10); the testimony of the parents did not establish a link between the Student’s special education needs and the services available to address those needs at People’s Institute, (¶ 12). On the contrary, the testimony and recommendations of Ms. Homstead, Ms. Fahmey, Ms. Van Arsdell, Mr. Brown and Mr. Jurgensen, were based on current, first-hand knowledge of the Student, and of the integrated summer preschool. Each witness was able to discuss the relationship between the Student’s documented special education needs and the services proposed and /or actually delivered to address those needs. I found the testimony of each of those witnesses supporting the summer program proposed in the Student’s IEPs to be credible and corroborated by documentary evidence in the record. (P-4, S-6; S-2; P-8, S-9; P-6, S-10; S-12) Therefore I find the summer, 2001components of the IEPs proposed for the Student to be reasonably calculated to prevent substantial regression and to ensure the provision of a free, appropriate public education for him.
Further, there is no evidence in the record of any procedural irregularities, which might entitle the parents to reimbursement of expenses incurred for appropriate unilateral placement of the Student. The Team met twice to discuss the Student’s extended year services. The IEP developed as a result of those meetings was delivered in a timely manner and well in advance of the commencement of the summer program options at issue. (P-4, S-6) The assistant director of special education maintained communication with the parents, and met with them to discuss their concerns and requests concerning summer programming. As a result of that meeting Northampton offered additional special education services not inconsistent with its original program offer, to address the parents’ concerns about the length of vacation. (S-2; S-3; Jurgensen; see 603 CMR 28.05 (7) (a) (1). ) The programs offered by Northampton, integrated summer preschool and home tutorial services, were at all times available to the Student. Neither the fact that the parents declined a portion of the proposed IEP, nor that the School declined approval of the placement selected by the parents, by itself indicates a procedural violation of the rights secured to the parents and Student pursuant to 20 U.S.C § 1401 et seq ., or M.G.L. c. 71B.
ORDER
The Student’s participation in a mainstream camp program, in addition to a five week, half-day integrated summer preschool and a daily home education program, was not necessary to prevent substantial regression in the Student’s language and social skills during the summer, 2001. The summer components of two IEPs proposed for the Student were reasonably calculated to provide a free, appropriate public education to him. The actions of the Northampton Public Schools in developing the proposed IEPs for this Student and delivering the services outlined therein were consistent with the procedural requirements of M.G.L. c. 71B and 20 U.S.C. § 1401 et seq .
Lindsay Byrne,
Hearing Officer
1
The proposed IEP runs from 7/05/01 to 2/09/02 and includes transitional services for the Student’s entry into kindergarten in September, 2001. Only The summer services listed thereon are at issue in this hearing.