COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Norwood Public Schools BSEA # 08-6241c
COMPLIANCE DECISION
This compliance decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on May 15, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Michelle Plasse-Collins Team Chairperson, Norwood Public Schools
Kelley Martin Pre-Doctoral Psychology Intern, May Institute
Adam Feinberg Senior Educational Consultant, May Institute
Robert Putnam Senior Vice President of School Consultation, May Institute
Julie Moore Teacher for the Visually Impaired, Norwood Public Schools
Robert Appleyard Director and Teacher, LEAD Program, Norwood Public Schools
Deborah Watts Orientation and Mobility Teacher
Richard Plouffe Assistant to Director of Student Services, Norwood Pub. Sch.
Helen Wyche Director of Student Support Services, Norwood Public Schools
Tim Norris Attorney for Norwood Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-13; documents submitted by the Norwood Public Schools (hereinafter referred to as “Norwood”) and marked as exhibits S-1 through S-32; and approximately one day of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on May 27, 2009, and the record closed on that date.
I. ISSUES
As agreed by the parties, this dispute is limited to the following issues:
(1) Has Norwood complied with my earlier Decision (dated July 2, 2008) regarding home-based services?
(2) Has Norwood complied with the July 2, 2008 Decision regarding school-based services relative to Student’s behavioral needs?
II. DISCUSSION
A. Introduction
On July 2, 2008, I issued a Decision (hereinafter referred to as “Decision” or “July 2, 2008 Decision”) that addressed the question of whether Norwood’s then most recently proposed individualized education program (hereinafter referred to as “IEP”) was reasonably calculated to provide Student with a free appropriate public education (hereinafter referred to as “FAPE”) in the least restrictive environment.1 In that Decision, I found that Norwood’s proposed IEP for the 2008-2009 school year was reasonably calculated to provide Student with FAPE, provided that certain modifications were made and that certain procedures were followed by Norwood.
More specifically, the Decision included the following Order:
Norwood’s proposed educational services for the summer of 2008 are not reasonably calculated to provide Student with a free appropriate public education and shall be modified so as to continue Student’s specialized services for at least six weeks, as described above in part IVC of this Decision.
Norwood’s proposed educational program for Student for the 2008-2009 school year is reasonably calculated to provide Student with a free appropriate public education, provided that the following modifications are made and procedures followed:
· Norwood shall re-evaluate the current need for and make a new proposal for home-based services, as described above in part IVD of this Decision.
· Norwood shall provide substantial opportunities for Student to develop meaningful relationships with other students who are blind or visually impaired, as described above in part IVF of this Decision.
· Norwood shall conduct a vocational assessment of Student, as described above in part IVG of this Decision.
· Norwood shall convene an IEP Team to consider and determine Student’s IEP for the 2008-2009 school year. The Team’s determinations shall include (1) whether additional mobility and orientation services are needed, (2) the amount of time for counseling services to be included in the IEP, (3) the amount of time for after-school services to be included in the IEP, (4) how Student will be given substantial opportunities to develop meaningful relationships with other students who are blind or visually impaired, (5) whether a specific time should be designated on the service delivery grid of the IEP for reading/language arts special education services, mathematics special education services, and adaptive physical education.
As noted in the statement of issues (above), Parent is contesting compliance with this Order and Decision only with respect to home-based services and with respect to school-based services relative to Student’s behavioral needs.
B. Home-Based Services
One area of Norwood’s proposed IEP that the July 2, 2008 Decision determined to be in need of modification pertained to home-based services. The Decision found that “in order for Student’s educational program to have meaning, he must have effective home and after-school services so that he will be able to carry over to the home and community environments much of what he is able to learn at school.” The IEP considered by that Decision proposed family support services by May Institute staff (under consultant contract with Norwood) for one hour, three times per week. The previous IEP (for the 2007-2008 school year) called for the same amount of home-based services. The July 2, 2008 Decision considered the appropriateness of these services.
The Decision made clear the critical importance of providing effective home-based services to Student but noted that Parent had refused further home-based services because she concluded that what was being offered was not effective for her son. In light of this situation, the Decision concluded that there should be a process to re-evaluate the current need for (and make a new proposal for) home-based services. The Decision explained that the following principles should be followed:
Home services should address the issues of most concern to Parents, utilizing interventions that Parents are able to and are interested in implementing, as this will likely result in the most investment from Parents and will most likely lead to successful carry-over into the home. Towards this end, a team approach should be used to determine what home services are to be provided and how these services would be provided, and it is essential that Parents be full participants in this process. The reconsideration of home-based services should include a problem-solving process (that includes Parents) to consider the variety of things that could possibly be done as part of these services and then to choose those components that all parties can agree upon. It will be useful to understand this process as taking an incremental approach – that is, starting with what the parties can agree upon, hopefully achieving success in that area, and then seeking to expand the services into additional areas. If the home-based services to be provided do not pertain to Student’s autism (and behavior issues related to autism), someone other than Norwood’s autism consultant should take the lead, but with continuing consultation from an expert in the area of autism.
Following its receipt of the Decision, Norwood engaged in a process of re-evaluating its home-based services and how they were to be delivered. An important part of this process was a decision by Norwood and its consultants to change the person providing the direct services in order to avoid any relationship difficulties that may possibly had developed between the previous service provider and Parents. The new provider (Kelley Martin) has five years experience providing home-based services for students with autism, has a master’s degree in clinical psychology, is currently engaged in a pre-doctoral internship in psychology at the May Institute, and is near completion of her doctorate degree in clinical psychology. It also appears that Ms. Martin has established a positive rapport with Student’s mother (Mother). Testimony of Putnam, Martin, Mother; exhibits S-29, P-9.
I find Ms. Martin to be well-suited by experience, expertise, and demeanor to provide high-quality home-based services to Student. In addition, weekly supervision and monthly review are provided to Ms. Martin by highly experienced May Institute clinicians, thereby ensuring that multiple, experienced perspectives contribute to any decisions regarding behavioral strategies and service delivery models to be used by Ms. Martin. Testimony of Putnam, Martin, Feinberg; exhibits S-29, S-32.
Norwood’s re-evaluation of home-based services occurred on two occasions. The first re-evaluation occurred soon after issuance of the Decision. The new service provider (Ms. Martin) met Mother in September 2008 and began implementing these home-based services. Ms. Martin first worked with Mother to implement behavioral expectations for Student that he already had the ability to utilize. Then, Ms. Martin introduced five or six expectations that were more difficult for Student. This approach was not successful and was discontinued by early January 2009. Ms. Martin then focused on teaching Mother strategies that could be used to address specific behaviors that Mother was reporting as problematic within the home. Strategies were adopted that had been successful in school, including use of clear behavioral expectations, a plan for positive reinforcement, a space to be utilized for Student to take a break, and a plan to de-escalate behavior. However, these efforts were also unsuccessful. Testimony of Putnam, Martin; exhibit S-22.
Up until that point in time, Ms. Martin’s work had been with Mother on a one-on-one basis during the morning when Student was not in the home. In other words, the home-based services consisted entirely of instruction to Mother without involvement or participation of Student. The goal of this work was to teach Mother how to work effectively with her son, and in particular, how she could appropriately respond to (and reduce) Student’s difficult behaviors in the home. However, it became apparent to Norwood’s consultants who were providing the home-based services that Mother was not implementing these strategies and did not intend to do so. In her testimony, Mother made clear that she did not find the strategies to be effective and therefore saw no point in continuing to try to use them with her son. Testimony of Putnam, Martin, Mother; exhibit S-22.
Through a meeting that included Mother, the home-based service providers, and Norwood staff in March 2009, there was a second evaluation of home-based services to consider this continuing impasse. Norwood and its May Institute consultants made a decision to discontinue the approach of working solely with Mother. Instead, Ms. Martin began working directly with Student in the home, with Mother being present. The purpose of this home-based services approach was to model for Mother behavioral strategies and also to make the strategies as simple to implement as possible, with the hope that if the strategies could be demonstrated to Mother as effective and that if Mother gained confidence that she was capable of implementing them, she would choose to do so and would be able to implement them herself without Ms. Martin present. Ms. Martin testified that she believes that there is beginning to be progress using this new approach, but because the approach is relatively new, it is too early to determine whether it will be successful. Testimony of Putnam, Martin; exhibits S-22, P-10.2
Mother testified that although she enjoys having Ms. Martin in her home, she does not believe that any of the strategies taught to her so far (including the relatively new approach initiated in March) are or will be effective in addressing her son’s behavioral deficits. Mother explained the severity of her son’s behaviors in the home, which sometimes include physical aggression directed at her (for example, yelling, screaming, slamming doors, and hitting) and which sometimes result in bruises to her body. It is not disputed that these behavioral difficulties are occurring within the home and that they are placing very substantial stress on Mother as well as on her family. As a result, from Mother’s perspective, the situation is extremely discouraging as her son’s behaviors continue unabated at home, with Mother having no hope in sight of finding a way to address them appropriately through Norwood’s home-based services. Testimony of Mother.
No witness rebutted Mother’s testimony regarding the occurrence of her son’s behavioral difficulties with Mother in the home (although no other witnesses testified that they had actually observed a serious behavioral incident in the home). I fully credit Mother’s testimony in this regard, I find that there continue to be serious behavioral difficulties within the home that Norwood has the responsibility to continue to address through home-based services, and I further find that Norwood’s home-based services have not yet been effective in addressing these difficulties.
This, of course, is not the end of the analysis. The narrow issue before me is whether Norwood has complied with the July 2, 2008 Decision regarding home-based services. To address this issue, I must consider the question of what may be causing the lack of effectiveness of the home-based services and whether Norwood’s home-based services have been reasonably calculated to be effective, notwithstanding the lack of success to date.
It remains unclear whether Mother is correct that Norwood (through its consultants) has yet to teach home-based strategies that can be successfully implemented by her; or whether, as Norwood’s consultants believe, the difficulty lies with Mother’s reluctance to accept the strategies being taught which would be effective if implemented by Mother;3 or whether, as implied in some of the testimony and in the vocational assessment, Mother could benefit from family therapy or similar services to address unresolved issues between her and her son that may make it more difficult, if not impossible, for Mother to interact successfully with her son when he is having behavioral episodes.4 Testimony of Mother, Putnam, Martin; exhibit S-23, P-8.
Through its May Institute consultants, Norwood has re-evaluated its home-based services twice, has put in place an excellent service provider (Ms. Martin) with highly competent supervision, and has continued to seek to find methods of teaching Mother effective strategies for working with Student’s behaviors at home. To be sure, this process of reviewing and re-considering the home-based services (and what can be done to improve their effectiveness) must continue. Efforts must also continue to seek to engage Mother on her terms until such time as the home-based services become effective. However, to date, Norwood’s efforts to re-evaluate and implement home-based services have been reasonably calculated to be effective, and accordingly, I find no lack of compliance by Norwood with the July 2, 2008 Decision in this regard.
There remains the issue of the number of hours of home-based services per week. As noted above, Norwood’s proposed IEP that was considered at the previous Hearing and that was the subject of the July 2, 2008 Decision, called for home-based services of one hour, three times each week . This is the identical amount of home-based services called for in the previous IEP. Subsequent to the July 2, 2008 Decision, Norwood proposed an IEP for the period 9/22/08 to 9/22/09 (signed by Ms. Wyche, Norwood’s Director of Student Support Services, on October 7, 2008) which continued to call for family support services for one hour, three times per week , and specifying that these services are to be provided by the May Institute. Apparently, Mother accepted the IEP services on an interim basis but rejected the placement. Exhibit P-3. Yet, the home-based services that have been provided in the past have been only for one hour, once per week . Norwood takes the position that the currently accepted and previous IEPs are in error, and that there is no clinical support for more than one hour per week of home-based services. Norwood brought its error to my attention, for the first time, during this compliance proceeding. Testimony of Putnam, Martin.
When issuing the July 2, 2008 Decision that ruled on the appropriateness of Norwood’s IEP, I understood that Norwood was proposing three hours per week of home-based services, and the July 2, 2008 Decision was based upon this understanding. It is too late to alter the facts in evidence, upon which I relied in issuing the July 2, 2008 Decision.
During the Hearing, Norwood took the position that the July 2, 2008 Decision permits it to establish any number of hours of home-based services, and that it could even eliminate home-based services altogether in the event that Norwood determined that home-based services were no longer needed. I disagree. As discussed above, the Decision leaves no doubt as to the critical importance of home-based services and that the home-based services had not yet produced the desired results. The purpose of the July 2, 2008 Decision was to require a re-evaluation process that would not lead to a diminution or elimination of home-based services from what was proposed in the IEP that I was considering, but rather would determine how the home-based services proposed by Norwood could be adjusted so that they would become meaningful and effective, taking into consideration the various principles quoted above from the Decision.
Norwood has an additional obstacle to its position. As noted above, the last accepted IEP (for the period 9/22/08 to 9/22/09) calls for one hour, three times per week of family support services and states specifically that these services are to be provided by the May Institute. Exhibit P-3. The services described within this written, accepted IEP must be implemented regardless of whether Norwood intended to offer something different.5
For these reasons, I find that the July 2, 2008 Decision required Norwood to provide one hour, three times per week of home-based services—a requirement with which Norwood has not complied.
At the same time, however, I further find that Norwood should not be required to provide three hours per week of services at this time for the simple reason that, during the compliance Hearing, Mother testified that she does not want home-based services to be increased at this time beyond the current amount of one hour per week. It may be that Mother will change her position on this issue, and she would be entitled to do so at any time; and then, the three hours per week must be provided. But until this occurs, Norwood may continue providing home-based services of one hour per week.
I next consider whether compensatory relief should be ordered as a result of Norwood’s failure to provide three hours of home-based services to date. Compensatory relief is equitable in nature, and must consider what Student lost in terms of educational opportunity as a result of Norwood’s action.6
The essential dispute between the parties has been whether the home-based services were offering appropriate behavioral strategies and if so, whether Mother was willing and able to implement these strategies. Mother testified that she does not now want more than one hour per week of home-based services. No doubt she takes this position because of the lack of success of home-based services to date. The unrebutted evidence is that, except for the possibility of some degree of recent success, the home-based services have not provided a benefit to Student or his family to date. For reasons explained above, I find that there is no persuasive evidence that Norwood (through the May Institute) should be faulted for this lack of success. Accordingly, I find that there is no basis for concluding that Student would have benefited in the past from additional home-based services.
Because there was no loss of educational benefit attributable to Norwood’s actions, no additional home-based services will be ordered to make up for Norwood’s lack of compliance with the number of hours of home-based services that have been provided to date. However, Norwood (with the assistance of the May Institute) shall develop and provide to Parents a written proposal, specifically describing how the May Institute would provide three hours per week of home-based services (that Parents are entitled to receive) so that Parents may then determine, in an informed manner, whether to accept this level of home-based services.
C. School-Based Services
I now consider the question of whether Norwood has complied with the July 2, 2008 Decision regarding school-based services. Student is enrolled in the Live, Engage, Achieve, and Develop (LEAD) program located at the Savage Education Center. As agreed by the parties, I consider this compliance issue only with respect to whether the LEAD program is addressing Student’s behavioral needs, in accordance with the July 2, 2008 Decision.
As noted above in part II A of the instant ruling, the July 2, 2008 Decision ordered certain modifications and proceedings relative to Norwood’s IEP. Although the Decision required the IEP Team to consider certain questions relative to Student’s day-time services, it essentially affirmed, without requiring any specific, substantive modification, the proposed school-based services within the LEAD program.
The unrebutted testimony of the LEAD director/teacher (Robert Appleyard) and Ms. Martin (who provides consultation to the LEAD program regarding Student) was that Student has no significant behavioral difficulties within this program. Mr. Appleyard testified that within the school setting as well as during excursions into the community, Student’s behavior has been virtually problem-free. Mr. Appleyard noted that occasionally he will notice that Student seems to be concerned about something and that this might be a precursor to behavioral issues. At these times, Mr. Appleyard makes it a habit of taking Student aside and speaking with him for ten minutes or so, and this seems to help resolve the potential difficulty. As a result, there have been times when something has bothered Student or when he appears to be stressed at school, but Student has been able to calm down and avoid any substantial behavioral difficulties. Apparently, the last time that Student had a behavioral outburst at school or on a community excursion was in the fall of 2008 when Student became very upset and yelled and slammed objects. Parents did not seek to rebut this testimony. Testimony of Appleyard, Martin.
Accordingly, I find that Norwood has complied with the July 2, 2008 Decision regarding school-based services relative to Student’s behavioral needs.
D. Conclusions
Although I have found that Norwood is in compliance with respect to home-based services (except for the number of hours of services for which only limited relief is ordered) and is in compliance with respect to school-based services relative to Student’s behavior, this case continues to reflect the same, deeply troublesome conclusion reached in the July 2, 2008 Decision—that is, Norwood’s inability to find ways to work effectively with Student’s behavior in the home and the unrebutted testimony that Student has serious, continuing behavioral episodes with Mother.
Consequently, it is strongly recommended that Norwood (and its consultant, the May Institute) continue to make best efforts to find a way to work with Mother so that effective behavioral strategies can be identified, understood, accepted, and implemented by Mother in the home. As emphasized in the July 2, 2008 Decision, it is critical to continue working with Mother for this purpose, by understanding, taking into consideration, and responding to her own particular circumstances, including her current relationship with her son. It is anticipated that this may involve further informal assessments and adjustments for the ultimate purpose of finding a way to reduce Student’s behavioral difficulties in the home.
It is noted that during the compliance hearing, concerns were raised as to whether Mother was willing or able to consider and implement new behavioral strategies that had been effective within other environments (school and community) with LEAD staff. Mother is encouraged to try to remain open to new ways of interacting with her son regarding his behavior. Mother is also encouraged to consider accepting Norwood’s offer of family therapy so that she might understand better her relationship with her son and how this relationship may, possibly, be contributing to her son’s behavior in the home.
III. ORDER
Norwood has complied with my July 2, 2008 Decision regarding home-based services, except with respect to the number of hours of services provided. No additional home-based services are ordered to make up for this lack of compliance.
Norwood has complied with the July 2, 2008 Decision regarding school-based services relative to Student’s behavioral needs.
No later than three weeks from the date of this Compliance Decision , Norwood (with the assistance of the May Institute) shall develop and provide to Parents a written proposal, specifically describing how the May Institute would provide three hours per week of home-based services so that Parents may then determine, in an informed manner, whether to accept this level of home-based services.
By the Hearing Officer,
William Crane
Dated: June 2, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
In Re: Norwood Public Schools , BSEA # 08-6241, 14 MSER 210 (2008).
2
In addition, two Norwood staff (Mr. Appleyard and Ms. Moore) have occasionally visited Mother and Student at home. Mr. Appleyard testified that his visits appeared to make Student nervous, perhaps leading Student to believe that Mr. Appleyard was in the home because Student had done something wrong. Testimony of Appleyard.
3
Norwood’s consultants take this position, in part, because Student has not demonstrated any recent behavioral difficulties within the school setting or within the community setting when accompanied by Norwood staff. Ms. Martin also testified that there are times when Mother will appear to reject a proposed behavioral strategy prior to its being fully explained. Testimony of Putnam, Martin. See also the discussion in the text below regarding Student’s behavior at school and in the community.
4
Norwood has offered, but Mother has declined, family therapy services. Testimony of Mother.
5
See, e.g., Sytsema ex rel. Sytsema v. Academy School Dist. No. 20 , 538 F.3d 1306, 1315 (10 th Cir. 2008) (“ court must analyze only whether the provisions of the IEP, as written, substantively comply with the Act”) (emphasis in original); Knable v. Bexley City School District , 238 F.3d 755, 768 (6 th Cir. 2001) (“must limit our evaluation of Bexley’s proposed IEP to the terms of the document itself, as presented in writing to the Knables”); Union School District v. Smith, 15 F.3d 1519, 1525 (9 th Cir. 1994) (court must restrict its analysis to the written IEP).
6
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (compensatory relief is essentially a discretionary remedy designed to make a student whole–that is, to make up for what was lost as a result of not having received the requisite special education services).