Quincy Public Schools – BSEA #03-4007
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Quincy Public Schools
This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.
On April 16, 2003, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that the Quincy Public Schools’ (Quincy’s or School’s) IEP for April 2003 to April 2004 is not reasonably calculated to provide Student with FAPE. Parents alleged numerous substantive deficiencies in the IEP and services, as well as procedural violations.
On May 1, 2003, Parents filed a Motion for Immediate Interim Services seeking an order for Quincy to provide or fund 14.5 hours per week of Applied Behavioral Analysis (ABA) therapy as well as monthly monitoring by a specific speech/language therapist, in addition to his then-current preschool program. Parents requested that this interim relief be provided until the earlier of Student’s finishing the steroid treatment he was undergoing at the time or a decision on the merits.
An evidentiary hearing on the Motion was held on May 23 and June 5, 2003, followed immediately by a full hearing on the merits on June 5 and June 11, 2003. Both hearings were held at the office of the BSEA in Malden, MA. Each party was represented by counsel, presented documentary evidence and examined and cross-examined witnesses. The record from the motion hearing is subsumed into the record of the hearing on the merits, and for purposes of this Decision, both matters shall be treated as one proceeding. On June 16, 2003, the Hearing Officer issued a Ruling and Order granting the Parents’ Motion in part and denying it in part.1 This Ruling and Order is attached to and incorporated by reference into this Decision.
Those present for all or part of the proceeding were:
Frank Duffy, M.D.* Pediatric Neurologist, Boston Children’s Hospital
Lauren M. Avery, Ph.D. Psychologist, Boston Children’s Hospital
Michelle Glidden Service Coordinator, Step One Early Intervention program
Susan Haberstroh Teacher, Intensive Special Needs preschool, Quincy Public Schools
Kerri Connolly Behavioral specialist, Quincy Public Schools
Kerry O’Brien Speech/language therapist, Quincy Public Schools
Tim Sindelar, Esq. Attorney for Parents
Deborah A. Anderson, Esq. Attorney for Quincy Public Schools
*Testified via speaker phone
The official record of the hearing consists of Parents’ Exhibits 1 through 102, School’s Exhibits 1 through 3; Joint Exhibit J-1; and approximately 15 hours of tape-recorded oral testimony and argument. The parties filed written closing arguments on June 16, 2003 and the record closed on that day.
Student is a three-year-old child with serious developmental delays, especially in language, social-emotional functioning and play skills, and also has behavioral issues, as a result of Landau-Kleffner Syndrome and autism spectrum disorder. Student transitioned from Early Intervention (EI) to the Quincy Public Schools in late April 2003, shortly after his third birthday. At that time Student was receiving approximately 26 hours of EI services per week, including approximately 14 hours of 1:1 instruction using Applied Behavioral Analysis (ABA)/Discrete Trial Training (DTT). In addition, at the time of transition, Student was receiving medically supervised steroid treatment that had started in late July 2002. The purpose of steroid treatment, which was expected to finish in or about late summer or early fall of 2003, was to “open him up” to interventions and therapies addressing his skill deficits. At the time of hearing, Student had begun attending the Quincy Public Schools’ preschool at the Della Chiesa Early Childhood Center, where he was spending about 2.5 hours per day each in an integrated preschool classroom and a substantially-separate, intensive special needs program, and also was receiving speech-language therapy, OT, and behavioral services.
The parties agree on Student’s profile, and his eligibility for special education, but dispute whether his IEP and placement are appropriate. The Parents allege that Quincy’s IEP for April 2003 to April 2004 is insufficient to provide Student with FAPE, and seek an intensive, full year, full day, full week program that offers a significant amount of ABA services in addition to daily speech/language, occupational, and physical therapy, and parent training. Parents also allege that Quincy committed procedural violations, and seek compensatory services as well as reimbursement for ABA and speech therapy services that they have obtained privately. Quincy, on the other hand, asserts that its IEP and placement, consisting of a four-day, full day program comprising both integrated and separate classrooms, speech therapy, OT, an aide, and a home behavioral component, provide Student with FAPE, that Student is making progress in the Quincy program, and that it is willing to adjust the program to meet Student’s needs as they emerge and/or evolve. Quincy further asserts that it has complied with all relevant procedural requirements.
The following issues were presented at the hearing:
1. Whether Quincy’s IEP and services provide Student with FAPE;
2. Whether Quincy complied with relevant statutory and regulatory requirements in conducting Student’s evaluation and developing his IEP; i.e. whether Quincy completed the process within the applicable timelines, ensured Parents’ participation in the TEAM process, complied with the notice requirements of the IDEA and Chapter 766 and issued an IEP that conforms with statutory requirements.
3. Whether Parents are entitled to reimbursement for ABA services that they have obtained privately for Student.
4. Whether Parents are entitled to compensatory services.
POSITION OF PARENTS
Student needs an intensive, five-day, full year program of at least 25 hours per week to address the severe language and social-emotional delays associated with his Landau-Kleffner Syndrome and autism spectrum disorder. Student’s program must include a substantial amount of ABA/DTT therapy, daily speech/language and occupational therapy, and at least five hours per week of a home component, all provided by individuals with experience working with young children with autism. Moreover, as long as Student is undergoing steroid treatment, the same speech therapist who monitored his progress while he was in EI must continue to do so.
Quincy’s IEP and services meet none of these requirements, are not tailored to Student’s individual needs, and do not conform with contemporary standards for programs for children with Student’s profile. As a result, Student has not made appropriate progress in Quincy’s program, and has even regressed. Quincy has acknowledged some of its program’s shortcomings by offering certain additions and modifications during the course of the hearing.
Further, Quincy committed procedural violations by failing to conduct and complete Student’s initial evaluation in a timely manner, to sufficiently consider information from EI providers, to evaluate Student in all areas of suspected need, and to take adequate steps ensure meaningful parental participation in the TEAM process. These violations were substantial and deprived Student of FAPE; therefore, Parents are entitled to reimbursement and compensatory services for Student.
POSITION OF QUINCY PUBLIC SCHOOLS
Quincy’s program is appropriate and can meet Student’s needs. The program provides 28 hours of service per week, including both an integrated and a substantially separate, language-based classroom, a 1:1 aide, speech/language, occupational, and music therapy, a home component, and behavioral consultation. The services are appropriate for Student and consistent with the recommendations of Parents’ experts. The staff is highly qualified and includes professionals with training and experience in autism and Landau-Kleffner Syndrome. The program’s individualized and flexible behavioral approach, which incorporates many features of ABA as well as other strategies, is appropriate for Student and consistent with relevant knowledge in the field. On the other hand, the amount of ABA and discrete trial teaching that Parents are seeking would reduce Student’s opportunity to generalize language and other skills.
Further, Student has made progress in Quincy’s program. If his progress slowed, it did so before he entered the program. Moreover, Parents bear some responsibility for Student’s level of performance because they did not send him to school for a time after the program was first offered, and cancelled two speech therapy sessions that Quincy had made available during that period. Additionally, Parents have kept Student in an integrated classroom for half of each day, contrary to the recommendations of Parents’ and School’s experts for a separate, intensive, special needs classroom for the entire day, with gradual introduction of highly supported integration opportunities when Student is ready.
As to procedural claims, Quincy acted appropriately by assessing Student’s needs over time instead of either relying entirely on reports from EI providers or evaluating him six months before his third birthday, in light of how rapidly young children develop and change, and had an IEP and placement ready for Student by his third birthday. Quincy has been and continues to be willing to adjust Student’s program as his needs evolve.
FINDINGS OF FACT
1. Student is a three-year-old child (D.O.B. April 3, 2000) who lives with his parents and younger sister in Quincy. (Mother) He is a happy, active, affectionate child, and has an especially close connection with his mother. (P15-2; P17-2; Mother, Avery, Connolly, Haberstroh)
2. Student has been diagnosed with Landau-Kleffner Syndrome, which interferes with the function of the brain’s language centers. This disorder may cause children to lose previous language and to be unable to acquire new language. (Duffy) Student also is diagnosed with Autism Spectrum Disorder (ASD). As a result of his dual diagnosis, Student has major delays in expressive and receptive language. As of the hearing date, Student was essentially non-verbal, and even with the means of communication that he does use–vocalizations, a few word approximations, a few signs and gestures, and the beginning use of PECS2 —his language/communication skills are seriously delayed, as are his social, self-help and play skills. Student also has some sensory integration difficulties that affect activities like eating. He has behavioral issues associated with his ASD which, at different times, have included self-stimulation or “stimming” (hand flapping, wandering), mouthing non-food items, overactivity, screaming when frustrated, bolting, biting his arm and hitting his own head. (Mother) As the hearing was in process, Student displayed, for the first time, a couple of incidents of aggressive behavior (attempting to hit and bite Mother and a service provider). (Mother, Duffy, Avery, Connolly, Glidden, P19, 20, 21, 32)
3. Student developed normally until he was 16 months old (August 2001) when he lost all previously acquired language over a one-week period. (Mother) Parents sought medical help, but were initially told that Student just had a speech delay. (Mother) In October 2001, when Student was about 18 months old, Parents and Student’s then-pediatrician referred Student for Early Intervention (EI) services at the Step One program in Quincy. (Mother)
4. Step One found Student eligible for EI after a joint evaluation by an occupational therapist and developmental educator revealed “significant delays” in communication and language, cognitive, and fine motor skills, as well as limited play skills, decreased attention span, an observed “tendency to climb into small places, mouth objects and remove his clothing.” The evaluators observed that when Student looked at a book with his mother, he neither showed joint attention nor tried to point out pictures, and did not respond to simple gestural or verbal commands. During the evaluation he was mostly quiet but produced three consonant sounds (b, m, and d) babbled “doo, doo, doo,” and made “raspberry” sounds. Student responded to his name, understood “no” and followed some commands. He could not use objects functionally. (P29, P25) Overall, between the ages of 18 and 19 months, Student had delays in perceptual/fine motor skills (14 months), gross motor skills (16 months), social-emotional, cognitive, and self-care skills (12 months) receptive language (4 months) and expressive language (eight months). (P32-1; P25-4) Further OT evaluation revealed some sensory integration problems. (P27)
5. Student began EI services with Step One in approximately November 2001. Initially, Step One provided one hour per week of in-home language services from a social worker, and added weekly music therapy in January 2002. (P25-8, P-32-1, Glidden) When Student started EI, he communicated primarily by whining and grunting, flapping his hands to say “yes,” and moving his high chair out of the corner if he was hungry. He responded to his name inconsistently and followed simple commands. He was not aggressive. (P32-2). By the middle of February 2002, Student had begun increasing the number of sounds produced and saying “no no.” He did not imitate manual signs. He showed little interest in peers other than his cousin. (Id)
6. In mid-February 2002, when Student was 22 months old, Parents had him evaluated by Sandra L. Friedman, M.D., and Lauren Murphy Ph.D. (now Lauren Murphy Avery), of the Developmental Medicine Center at Children’s Hospital in Boston. Drs. Friedman and Avery are, respectively, an attending physician in developmental pediatrics and a licensed clinical psychologist at Children’s. (P32). Dr. Avery has approximately ten years of experience assessing children with a range of disabilities. She estimates that she has seen over 1000 children during that time, about 1/3 to 40% of whom have some form of autism spectrum disorder. Dr. Avery also taught elementary school in Chicago for about three years prior to earning her doctorate. (Avery)
7. Dr. Avery reported that at the initial evaluation, Student protested her attempts to engage him by crying and clinging to his mother, who said that this was a typical reaction to new people. Student’s eye contact with the evaluator was reduced, but better with Mother. He generally resisted any social overtures with the evaluator, did not respond to commands or respond to praise. On the other hand, he was very attentive and connected to Mother. (P32-6)
8. Dr. Avery administered the Autism Diagnostic Observation Schedule (ADOS),3 the Bayley II Scales of Infant Development, the Vineland Adaptive Behavior Scales, and a play skill screening. The ADOS showed an overall score “above the autism cutoff” in communication (no words or jargon, just raspberry sounds); social interaction (reduced levels of eye contact, showing toys to others, anticipation of social routine, initiation of joint attention and social overtures) play (at a 13-17 month level) stereotyped behaviors (some hand flapping) and repetitive interests. On the Bayley Mental Scales, Student completed some items at or below the 13-month level, but did not participate in some items. The parent report on the Vineland showed functional communication skills to be “moderately low” at the one-year level (babbling single sounds, inconsistent response to commands), daily living skills with “mild” deficits at an 11-month level (not using a spoon or fork, not interested in toilet training); social skills to be “moderately low” at one-year level and motor skills “adequate” at the 16 month level. (P32-7,8)
9. Drs. Friedman and Avery issued a joint report in February 2002 that includes the following recommendations:
· formal, direct, home-based ABA programming as a “significant component” of Student’s (EI) program to address attentional, imitation, and foundational skills;
· transition planning that begins at Student’s age 2.54 with no gaps in service over summer or between EI and public school;
· at least 25 hours of service per week in a full-day, full-year program that includes opportunities for supported integration and systematic intervention for developing play and social skills in the school setting, as well as continuation of some individual services from EI;
· a home-based parent support component to address behavioral issues and generalize skills;
· a formal behavior plan as part of the IEP when Student starts school;
· speech/language therapy with a total communication approach, and ongoing speech/language assessment; augmentive communication strategies including PECS, and home carryover of language strategies;
· direct OT services to address sensory integration, fine motor skills, and ADLs. (P32-10, 11)
10. Parents shared Student’s diagnosis and Children’s Hospital report with Step One, which subsequently began increasing Student’s services. In March 2002, Step One referred Student to Horace Mann Educational Associates (HMEA) for home-based ABA services. (P15-1) In mid-April 2002, before starting ABA services, HMEA assessed Student’s skill levels in seven developmental areas using the Psychoeducational Profile-Revised (PEP-R). Student scored significantly below his chronological age level of about 24 months in all seven areas. Specifically, imitation skills were at the 7-8 month level; cognitive-verbal skills were at the 0-15 month level; and cognitive-performance skills were at the 9-10 month level. Perception, fine and gross motor skills and eye-hand integration skills were somewhat stronger but still below Student’s chronological age of just over 24 months. Student’s overall developmental age was placed at 11-13 months. During testing, Student displayed good eye contact, accepted manual guidance from the tester, but also mouthed many test items and was non-verbal. (P15-3)
11. In mid-May 2002, when he was 25 months old, Student began receiving home-based ABA/discrete trial training services from HMEA. Initially, Student received 8 hours per week of ABA. The amount of 1:1 ABA therapy gradually increased to 12.5 hours per week. When he started therapy, Student was able to attend for short periods and could sit at a table for only 1-2 minutes. He frequently tried to leave the room to find his mother. Therapy focused on improving Student’s skills at attending, sitting at a table, imitation, and receptive and expressive language. (P15-4)
12. At the time the ABA services started, (May 2002), Student’s EI services also included an integrated toddler group for two, 2.5 hour sessions per week, and one hour per week, each, of home-based occupational, speech/language, and music therapy. (P14-1, Mother, Glidden) In addition, between March and May 2002, Student and Father participated in a weekly father-toddler group. (Mother, Father, Glidden)
13. On July 15, 2002, Frank H. Duffy, M.D., a pediatric neurologist with the Children’s Hospital Epilepsy Program, diagnosed Student with Landau-Kleffner Syndrome. Dr. Duffy based his diagnosis on a BEAM study5 he had conducted in order to assess whether there was a physiological component to Student’s loss of language and autism. (Mother, Duffy, P1) Dr. Duffy has 25 years of experience as a pediatric neurologist, and has evaluated and/or treated over 200 children with autism spectrum disorder. (Duffy)
14. After discussing treatment options with Dr. Duffy, Parents elected a trial of steroid therapy, which, Dr. Duffy testified, helps many children with Landau-Kleffner to improve their language capabilities and behavior. (Duffy, P1) When the treatment is successful, it “opens [children] up for external influences” such as speech/language therapy and behavioral interventions. (Duffy, P1, P4) The use of the steroid medications carries serious risks and side effects, however, including excessive weight gain, hypertension, glucose spillage, and gastrointestinal hemorrhage. Therefore, children can take the medication for only about a year and must be monitored closely. The typical course of treatment runs from two to twelve months. As soon as there is a plateau of improvement or two months of no improvement, the medication is tapered. (Duffy, P1, P4)
15. In Dr. Duffy’s experience, some children respond so dramatically to the steroids that they need no further treatment. On the other hand, other children, including Student, require “maximal therapeutic intervention” while taking steroids to benefit from the “window of opportunity” afforded by the medication. (Duffy, P4) Dr. Duffy testified that for Student, this intervention should include ABA/DTT services because in his opinion it is “the only” recommended treatment for children with autism that is supported by scientific evidence, and because it works for Student. As will be discussed below, Dr. Duffy also testified that Student regressed when ABA was discontinued. (Duffy)
16. ABA is a method of teaching skills or modifying behaviors that involves, among other things, breaking down a skill or behavior into its component parts and teaching the student each component until the student has learned the entire skill, then practicing the skill until the student can perform it independently and generalize it. (Connolly, Avery). The ABA therapist records data showing whether or not the student is actually learning the skills being taught. (Id.) ABA is used to directly instruct people with PDD or ASD on skills that a person without ASD would learn automatically. Discrete trial teaching (DTT) is a type of ABA. ABA/DTT is typically intense and is taught one-on-one. (Id.) The record shows that there is research-based data showing that ABA strategies, including DTT, are effective for teaching some children with autism spectrum disorder. (Duffy, Avery, Connolly) There was no expert testimony that compared the effectiveness of ABA/DTT with other methodologies.
17. In addition to the interventions referred to above, part of the treatment protocol for children undergoing steroid therapy is monthly assessment by a speech/language pathologist to determine and report back to the physician what progress, if any, the child is making. The physician uses the speech therapist’s reports (along with parent and physician observation, medical tests, etc.) to assess how the child is responding to medication and to make medication adjustments. To help ensure objectivity, the speech/language therapist must be disinterested, i.e ., neither affiliated with the treating physician nor currently providing services to the child. Dr. Duffy testified that the same speech therapist should be used for the entire course of steroid treatment in order to ensure continuity and awareness of subtle changes. (Duffy, P1) (On the other hand, as will be discussed below, Kerry O’Brien, the speech/language therapist in the Quincy program, testified that a different speech/language therapist could take over monitoring, with sufficient transition information. (O’Brien)) Caren Steinberg, a licensed speech/language therapist who has had no other involvement with either Dr. Duffy or Student, monitored Student’s progress every 4 to 6 weeks from July 26, 2002 through March 3, 2003, and reported her findings to Dr. Duffy. (Duffy, P1, P2, P9)
18. Ms. Steinberg conducted a baseline assessment on July 26, 2002, just before Student began treatment. Based on observation and the Symbolic Play Scale Checklist, she found that Student had mastered some cognitive and language skills at the Stage 1 level (9-12 months) but did not have true language or the ability to point to people or objects. Ms. Steinberg targeted the following behaviors to measure progress: eye contact, response to command and gesture “give to me,” object identification, response to name, imitation of simple behaviors, reciprocity, and increased vocalization. (P2)
19. Both Parents and Ms. Steinberg found that Student responded positively to the first month of steroid treatment. Mother testified that initially, the change was “amazing.” (Mother) She observed that within weeks of beginning treatment, Student’s eye contact improved. He began using toys appropriately, for example, putting together puzzles, instead of chewing, mouthing and dumping toys as he had done previously. He became more focused, attentive and more responsive to his name. Ms. Steinberg’s report of her observation of August 26, 2002, describes improvement in eye contact as “significant” and “marked” during rough and active play. She additionally found that Student could take turns rolling a ball, stack 8 blocks in a tower after watching her do the same, help put away toys, and allow her to interrupt and join his play. He followed the therapist’s lead in putting toy people in a toy bus, but it was not clear whether he was following her verbal directions or was responding to what he saw the therapist doing with the toys. Student spent about 6-7 minutes in each play activity with Ms. Steinberg, with some “self-stimming” behavior between activities. He babbled through the session but with no new sounds. (P3-1).
20. On September 23, 2002, HMEA issued a report of Student’s progress with ABA/DTT. The report states that Student had started with 8 hours of therapy and that an additional therapist was being sought for afternoon sessions, but is ambiguous as to how much therapy Student was receiving when it was written. Student was able to manipulate toys, but had minimal functional play skills. He had recently begun potty training. He communicated primarily through gestures and vocalizations, and occasionally used the manual sign for “more.” The report further states that Student could now sit with his therapist for several minutes at a time, usually could be redirected when upset, had successfully transitioned to a new therapist, and was trying to leave the room to find his mother “significantly less” frequently. (P30-3) Student had made some progress in several skill areas, including responding to his name (from needing full prompts to responding independently with 80% of trials); responding to “come here,” imitating block patterns, looking at an object in response to a point cue, and making choices, and had mastered an attending/scanning program. (P30-4)
21. On October 11, 2002, Caren Steinberg conducted her next observation. Her report states that Student easily established eye contact, used toys functionally, followed directions that had a gestural or visual component, and followed some directions from songs that have gestures, Student also could anticipate some of the gestures in the songs. He had added “MMMMM” to previously used “BABA” and repeated “MUMUMU” when Mother said this syllable. (P3-2)
22. Also in early October 2002, Step One assessed Student using the Mullen Scales of Early Learning, the Early Intervention Development Profile, parental report, and clinical evaluation. Assessment showed Student’s receptive communication at the 8-month level, and expressive language at a 6-month level, with limited understanding of words. Social-emotional development was at the 9 to 11-month level, with Student able to recognize familiar people, be affectionate, stay with familiar adults other than his mother, and play with toys on his own for several minutes. Student’s cognitive, gross motor, perceptual/fine motor, and self-care levels were at the 21-month, 21 month, 18-month and 16-month levels, respectively. At that time, Student was treating with steroids and also receiving 20 hours per week of services consisting of home-based OT and speech therapy, a community toddler group, home visits from the service coordinator/music therapist, and 12 hours of home-based ABA provided by HMEA. (P24-6)
23. Ms. Steinberg’s next report, dated November 11, 2002, describes Student’s eye contact as “fleeting.” Student could place pegged pieces into a puzzle, but this appeared to be a rote task as he had trouble choosing from two pieces offered to him as opposed to picking them up from the table as he usually did. He continued to enjoy physical games, and said “mo” when he wanted to repeat the activity. He had added the sound “di di di”. He was upset when the therapist joined Student’s play with his toy cars. Ms. Steinberg did not notice much difference in his receptive language from the October 11 observation. Mother reported that Student was saying “mama,” “nana” and “more” when asked to repeat these words. Ms. Steinberg discussed using Mayer-Johnson picture cards to help Student understand a sequenced routine. (P3-3)
24. Ms. Steinberg’s report of December 7, 2002, contains Mother’s statement that Student was saying “more” on his own, imitating additional vowel sounds, waving when prompted, responding to familiar commands, improving his puzzle skills, and progressing with toilet training. Ms. Steinberg observed general improvement, in that Student could participate in play with toys the therapist had brought and not just play with his own familiar toys, had better eye contact, and waved good bye on request. He needed visual cues in order to process auditory information. Student showed no more expressive language since the prior month. (P3-4, 5)
25. Ms. Steinberg’s visit of January 20, 2003 showed improvement in eye contact, and expressive language. Student was now 90% potty trained, could tolerate the therapist’s presence, and was able to imitate some sounds. Ms. Steinberg could not really determine whether there was improvement in receptive language. (P3-6, 7)
26. On January 23, 2003, immediately after Ms. Steinberg’s assessment referred to above, HMEA issued another progress report. By the time this report was written, Student was receiving 12.5 hours of 1:1 ABA service per week. Since the prior report in September 2002, Student had begun vocalizing some sounds that are close approximations of words (“hi,” “bye,” “dough,” and “mo” (for “more”)). Student could now sit with his therapist on the floor or at a table for up to 30 minutes, and usually could be redirected. He had adapted well to having two therapists. Student had now mastered imitation of “clap hands,” “arms up,” “stamp feet,” and “stand up.” He had learned to imitate building some 2 and three block patterns. He could look at an object in response to the therapist saying “look,” and pointing to the item (a receptive language skill). He had mastered several imitation items, He could choose from two items when asked and point to the item he wanted. He was also learning other skills including matching, oral motor imitation, receptive commands. He had mastered scanning shapes, responding to his name, and responding to “come here.” (P31)
27. The January 23 report from HMEA concludes that Student has “demonstrated steady progress in most programs since he began services, particularly when the number of hours was increased to include afternoon sessions…” and recommends that Student’s post-EI preschool program “continue to work with him in both a 1:1 ABA discrete trial format and in integrated group settings.” The report further recommends that Student’s program be clear, consistent and structured, with numerous opportunities to be exposed to typical peers and adults, and states that “since [Student] has made the most progress when he has had services throughout the day, it is recommended that he attend a full day preschool program, which is integrated for at least half of the day…” and offers daily speech, OT, and PT in both group and 1:1 settings. The report does not state a basis for its conclusions as to speech, OT and PT. (P31)
28. Ms. Steinberg’s next visit was on March 3, 2003. Mother reported that Student had shown increased ability to understand routine questions and phrases, as well as to imitate additional sounds. Mother also reported that the ABA therapist had heard seven words: “more,” “no,” “mama,” “da,” “me,” “nana,” and “dough” (for play dough). The therapist could get him to imitate some sounds, identify Mr. Potato Head’s nose and eyes, imitate the sign for “open,” when prompted visually and verbally, wave hello and goodbye without visual prompts. His play appeared routine and rigid. He did some self -stimming hand play. He generally showed more growth in expressive than receptive language. (P3-8)
29. According to Laurie Richardson of HMEA, Student “responded extremely well to 1:1 ABA therapy.” Retesting with the PEP-R in late March 2003, approximately one year after the initial testing, showed that Student had made “some significant gains in all areas.” Imitation skills were now at the 16-17 month level; cognitive verbal skills at the 16-17 month level and cognitive performance skills were at the 14-15 month level. Student also showed progress in the other skill areas tested. Student’s total developmental age as measured on this test had increased from 11-13 months in April 2002 (at age 24 months) to 18-21 months in 2003 (at age 36 months). (Id.) The ABA therapists observed that Student increased his ability to sit at a table for discrete trials from 1-2 minutes at the start of therapy to about 30 minutes one year later. He stopped mouthing and chewing materials. He had mastered certain skills like scanning shapes, responding to his name, looking in response to a point cue, imitating actions with objects, and oral motor imitation. When therapy ended, Student was working on various types of imitation (gross motor, block patterns, actions with sounds, verbal), identifying body parts, matching (objects and shapes) and receptive commands. (P15-4, 5)
30. Student also made progress in EI generally, between his enrollment in October 2001 and April 2003, when he turned 3. Michelle Glidden, Student’s EI service coordinator from Step One, testified that when Student first enrolled he was “very regressed” and non-communicative. He did not turn in response to his name, had poor eye contact and difficulty relating to people other than Mother. As he received services, Student’s receptive language as well as his ability to attend to activities and engage with familiar people all improved. (Glidden) By March 2003, in the ABA sessions, Student was increasingly vocalizing word approximations including “hi,” “bye,” “dough”, “more,” “morn” and “no.” (P15-2) By the time he was discharged from EI in April 2003, Student was able to manipulate toys by himself, although he still had minimal functional play skills. He responded positively to tangible, tactile reinforcers, liked watching Teletubbies and Sesame Street, and liked Matchbox cars, puzzles, and physical activities. Student communicated primarily through gestures and vocalizations, and occasionally used the sign for “more.” (P15-2, Glidden) He was fully potty trained. (Mother)
Chronology of Referral, Evaluation and IEP Development Process, September 2002-April, 2003
31. Student was to “age out” of EI when he turned three years old. In approximately September 2002, while Student was still in EI but anticipating Student’s third birthday, Parents began exploring possible educational placements for Student. They visited the May Center in Arlington, as well as programs run by the South Shore and Pilgrim Area Collaboratives and the Braintree Public Schools. For various reasons having to do with availability, Parents are not requesting placement in one of these programs. (Mother)
32. In late October 2002, when Student was 2.5 years old, Michelle Glidden of Step One requested a Chapter 766 evaluation for Student from the Quincy Public Schools. (Glidden) Mother followed up with another request in early November 2003. She was told that it was much too early to start the evaluation process and was advised to call back after the holidays. Mother contacted Quincy again in early January 2003 and was told to call back in March. (Mother)
33. In February and March 2003, respectively, after further telephone conversations with Mother, Quincy conducted psychological and speech/language evaluations. Quincy did not conduct a formal educational assessment, did not observe Student in his toddler group or at any EI therapy session (ABA, OT, music therapy or speech). Quincy did not conduct OT or PT evaluations at this time, but did a PT assessment on April 11, 2003. (Glidden)
34. Quincy conducted the initial TEAM meeting on March 19, 2003. Parents did not receive advance written notice of the meeting but did attend. Also in attendance were Parents’ advocate, an ABA therapist from HMEA, Student’s EI service coordinator (Michele Glidden) the classroom teacher for the Intensive Special Needs Class (ISNC) at the Della Chiesa Early Childhood Center (Susan Haberstroh), the Quincy school psychologist (Ingeborg Damm-Luhr, Ph.D.), and speech/language therapist (Ellen Ridge). In addition to the reports of the psychological and speech-language evaluations, the TEAM was provided with reports and letters from Student’s service providers. These included progress reports from HMEA, and as well as letters from Dr. Avery, Dr. Duffy, and Dr. Irons (Student’s pediatrician).
35. Quincy’s psychological evaluation report of February 2003 states that Student was unable to fully participate in an evaluation because he was upset with the unfamiliar setting. Therefore, the report mainly consists of summaries of recent findings from Step One and HMEA. (P21-2). Based on her review of this information, Dr. Damm-Luhr reported that Student could vocalize “mamama” or “momomo” to indicate wanting “more,” with spontaneous eye contact, had said “baba” in the presence of his baby sister, imitated several sounds and many animal noises, followed some routine instructions, responded consistently to his name and “come here,” and could indicate his nose on request, and point to a desired item. He had not yet connected a toy animal and with a picture of one. (Id.) Dr. Damm-Luhr observed Student complete some puzzles, and perform some other visual-motor tasks. He refused to imitate block building although by report he was able to do so. He did some self-stimulation (looking closely at puzzle pieces). Student’s gross motor abilities were relatively strong. He could imitate clapping, standing up, lifting his arms, and stamping his feet. By report Student had some mild sensory dysfunction, was affectionate with familiar people, distinguished strangers from family members, and was becoming more tolerant of sharing his mother’s attention and more interactive with his therapists. Play was mostly solo or parallel. Student needed much routine and had limited functional play skills. (P21-2)
36. Based on her observation and reviews, Dr. Damm-Luhr recommended intensive, very small group intervention, in a highly structured preschool program with unspecified additional services. She stated that Student seemed to learn most effectively through individual instruction, hand over hand demonstration, and constant repetition, with variation in his program introduced gradually and with repetition. (P21-4).
37. Quincy’s speech-language evaluation was conducted on March 12, 2003 by Ellen Ridge. As he was with Dr. Damm-Luhr, Student was “agitated” in the new surroundings and did not participate in formal assessments, so most information was obtained from the REEL-2, an instrument for estimating communicative functioning via parent information and clinical observation. Based on the REEL-2, Ms. Ridge found “significant delays” in receptive, expressive, and pragmatic language skills, with scattered receptive and expressive skills up to the 14-month level. Functionally, most of Student’s communication was with gestures such as pulling and pointing along with vocalizations. Student could occasionally respond to his name, usually stop an activity in response to his name or “no,” give a toy or object on request with a gesture, recognize common objects, understand tones of voice, and recognize common objects. He could also play speech-gesture games with hand-over-hand help, vocalize and imitate phonemes, use 5 true words, and approximate signs for “more” and “all done.” Ms. Ridge recommended placement in a language-based classroom with a multi-sensory approach to tasks, familiar routine, and consistent expectations, with speech-language services focusing on comprehension, expressive language, and non-verbal functional communication skills.6 (P14-4)
38. The HMEA progress report dated January 23, 2003 and written by Laurie Richardson, the HMEA Family Support Coordinator, states that Student “has demonstrated steady progress in most programs” (which focused on attending skills, ability to sit at a table, imitation, receptive and expressive language skills).7 since beginning services, especially when the number of hours included afternoon as well as morning sessions of ABA. HMEA recommended a full day preschool program that that combines “both a 1:1 ABA discrete trial format and…integrated group settings.” HMEA further recommended speech, occupational and physical therapy “on a daily basis, both in group and 1:1 settings.” (P31-4, 5)
39. Dr. Avery’s January 31, 2003 letter, written at Parents’ request, states that “[g]iven [Student’s] neurologically-based diagnoses, he requires an intensive full year, full day program that offers comprehensive special educational programming for children with developmental delays and autism spectrum disorders. This level of intensity…has empirical support in the literature…A significant component of his program should be Applied Behavioral Analysis.” (P5-1) Dr. Avery’s letter further recommended parent training to ensure carryover and assist generalization, intensive speech, OT and PT, and updated assessments. Dr. Avery had not conducted additional assessments. (P5)
40. In a letter dated March 11, 2003, Dr. David Irons, Student’s pediatrician, reiterates Dr. Avery’s recommendations. (P7) Dr. Duffy’s letter, dated March 18, 2003 states that Student “requires a five-day-a week, full day, full year program…in an integrated, language based classroom geared toward children with Autistic Spectrum Disorder.” Dr. Duffy further recommended a small, highly structured class with staff “highly trained” in working with ASD students,” a home behavioral program, preferably from at least 12-15 hours of home-based ABA by “qualified ABA therapists” as well as school based ABA, consultation to home and school for generalization, and a formal behavior plan based on a functional behavioral assessment. (FBA) Finally, Dr. Duffy stated that “It is critical that there not be a lapse in [Student’s] 1:1 ABA discrete trial format services during this transition.” (P6)
41. No member of the Quincy TEAM observed Student in any of his EI settings (toddler group, home-based therapies or ABA session).
42. Neither the PT nor OT evaluations had been completed prior to the TEAM meeting but were completed later.
43. The Quincy members of the TEAM proposed an intensive special needs class for 3 hours per day, 4 days per week, with up to six hours of speech therapy. There was no discussion of a home component. The TEAM discussed use of ABA but Mother found the discussion inconclusive. Parents mentioned possible placements but these were not discussed. At the conclusion of the TEAM meeting, Parents’ advocate stated that Parents would be rejecting the IEP and requesting a meeting with a School representative. (Mother)
44. On March 19, 2003, the same day as the meeting, Quincy issued an IEP covering the period from April 2003 to April 2004. This IEP describes Student as an “affectionate and lovely child” with diagnoses of Autism Spectrum Disorder and Landau-Kleffner syndrome that have affected Student’s speech and comprehension skills. The IEP names receptive and expressive language, social emotional development and play skills as areas of significant need, and states that Student’s disabilities affect skill acquisition, expression of knowledge, development of pre-academic verbal and numeric concepts, attention, and understanding of abstract concepts. Accommodations listed are multiple trials, additional one to one assistance, a highly structured environment, a daily activities board, communication board, low student to teacher ratio, and reinforcement of concepts with music. The designated methodology is multi-sensory instruction, modeling, incidental teaching, structured environment, consistent routine, and communication board. Visual motor and gross motors skills were identified as areas of relative strength. (P19-2,3,4)
45. This IEP contains three goals related to pre-academic, visual motor, social interaction/play, and communication skills, and offers a 4-day per week placement in a substantially separate preschool program for intensive special needs (the intensive special needs class or ISNC), at the Della Chiesa Early Childhood Center, with pullout speech therapy for two half-hour sessions per week. (P8, P19) The service delivery grid is blank in sections A (“Consultation”) and B (direct service in general classroom). Section C lists “Educational” services with frequency listed as “ongoing,” and speech and language for two, 30-minute sessions per 4-day cycle. (P19-9).
46. Under “Additional Information” the IEP also provides for a summer program for summer 2003, OT services “as part of the intensive special needs preschool program,” and “Behavioral Team Management Services” as determined by the Quincy…Educational Team,” consisting of “direct intervention with Student and consultation with parents and staff” to address play, language, cognitive and self-care needs “in conjunction with the goals and objectives as stated in [Student’s] IEP.” (Id)
47. The IEP states no details about Student’s summer component. According to testimony at hearing, Quincy’s plan was to place Student in a 5-week summer program from late June through July, where he would work on IEP skills for 3 hours/day, 4 days/week. Quincy offered no summer services between the end of the regular school year and the start of the summer program in June, or between August 1 and the beginning of the next school year in early September. (Haberstroh)
48. The IEP does not specify goals/objectives, length or duration, location, or staff responsible for the OT and Behavioral Team Management services. The IEP also does not specify the length of the school day or the total number of service hours per week. (Mother, P8, P19, Mother)
49. On March 26, 2003, Parents partially rejected the IEP based on “absence of full-day program” and “absence of ABA.” Parents also refused the proposed placement at the Della Chiesa preschool. (P8, P19, Mother) The same day, a second TEAM meeting was held at which Quincy proposed to partially change Student’s placement to half-time in the intensive special needs class (ISNC) and half-time in the integrated preschool (IPS) (S3) Parents did not accept the proposal on that day, but eventually did so on April 9, 2003. (S2)
50. Meanwhile, Student turned three on April 3, 2003, and his EI services ended on or about that day. Student did not begin services with Quincy immediately upon turning three years old because Parent had not accepted an IEP or placement. (Mother)
51. As stated above, on or about April 9, 2003, Parents accepted Quincy’s March 26, 2003 for the hybrid program. (Mother, S3) As agreed by the parties, Student started in that placement on April 28, 2003. (Mother, S3)8 The parties further agreed that prior to that date, Quincy would provide “drop-in” speech-language therapy, and also contract with HMEA for 6 hours per week of ABA services and 2 hours per week of “consultation to parents and school, curriculum development, staff supervision and coordination of services.” (S3) The ABA sessions took place as planned. Student missed two speech therapy sessions because of scheduling conflicts but also participated in two sessions. (Mother, O’Brien)
52. Meanwhile, on March 31 and April 7, 2003, Dr. Avery conducted another psychological assessment of Student. Dr. Avery found that Student had made qualitative gains since the prior evaluation (of February 2002), in that he was attempting to imitate words and sounds, understood some commands, was potty trained, had increased side-by-side play with others, and no longer mouthed objects or ate non-food items. Student’s best gains were in gross and fine motor skills, estimated at the 21-22 month level as opposed to the 12-month level in February 2002. Student’s growth in communication was slow, however, such that language skills were “severely reduced and estimated…at or below the one year level.” By Mother’s report, Student was not aggressive, had no self-injurious behaviors, and did not bolt. His self-stimming behavior (hand-flapping) had decreased. At the time of evaluation, Student was still taking steroids, although the dosage was being tapered. (P20)
53. Dr. Avery concluded that because Student has multiple disabilities, causing “functional impairment across multiple domains” which create severe educational needs that cannot be addressed in an education program solely for one of the impairments., but needs “a highly specialized, comprehensive program with an emphasis on language, socialization, and positive behavior…implemented with consistency by highly trained staff…[with]…experience teaching children with moderate severe special needs and communication impairments…There should be no gap in services …at age 3.” (P20)
54. Dr. Avery’s recommendations are essentially the same as in her February 2002 evaluation, i.e., for a full day, 12 month intensive program, which Dr. Avery stated, in her report and testimony, constitutes the “standard of care for children with autism, with empirical support in the literature…” (citation omitted). Dr. Avery recommended that Student’s program include the following:
· at least 50% of Student’s time in 1:1 ABA/discrete trial training supervised by a graduate level professional with experience in implementing ABA programs with children with autism, with “ongoing and aggressive support for generalization of skills in real life situations.”
· supported, partial-day exposure to typical peers;
· systematic interventions to develop play and social skills;
· opportunities for individual and small group learning in small, low-stimulation environments
· Intensive, direct, individual speech/language services using a total communication approach that includes signs, gestures, PECS, photos, and a communication book and/or board;
· Visual supports for communication in home and classroom;
· Consistent implementation of behavioral principals and close monitoring.
· OT to address sensory processing issues, feeding and fine motor skills and ADLs
· Documentation of progress via measurable, specific goals;
(P20-11, 12, 13, 14; Avery) Dr. Avery’s evaluation was made available to both parties after the start of the hearing and was not considered by the TEAM.
Other evaluations completed after the March TEAM meeting include a speech/language assessment dated April 23, 2003 by Denise Morrisseau, a speech/language therapist from Step One (P14) and a discharge report from Laurie Richardson of HMEA dated May 13, 2003. The speech /language report recommends intensive speech/language services, five times per week for consistent expectations and carryover of skills, as well as a home program in consultation with the treating speech pathologist and a language-based classroom with visual supports. (P14-2)
The HMEA discharge report recommends several hours per week of 1:1 ABA teaching with a discrete trial format, along with systematic evaluation of progress through collection and analysis of data. The report further recommends opportunities to observe and imitate the behavior of typical peers and adults in an integrated preschool setting, as well as daily speech, occupational, and physical therapy. (P15) It is not clear when and whether the recommendations were shared with the TEAM.
55. Between the end of EI and the hearing date, Parents paid for four hours per week of ABA services (except for 6 hours that were paid for by Quincy before Student started school), as well as 1 to 2 hours per week of language help from a speech therapy intern. Other than these services, and the two drop-in sessions of speech therapy provided by Quincy, Student received no services from the end of EI on April 3 until he started preschool on April 28. (Mother)
56. Parents and evaluators found that Student began regressing within about a week after EI services ended on April 3, 2003. Mother observed that problematic behaviors either increased or reappeared, including “stimming,” mouthing objects, screaming when frustrated, and bolting behavior, within about a week of EI ending. Additionally, Student developed new problematic behaviors including biting his own arm and hitting himself in the head. As of the hearing dates, Mother relayed the report of Student’s HMEA therapist that Student also had lost the ability to discriminate between objects, stand up and turn around in response to instruction, or identify shapes, and point during the home-based sessions, (Mother) although his teachers observed him using these skills in school. (Haberstroh)
57. Dr. Duffy saw Student for a follow-up visit on April 23, 2003. At that time, Student had been without any EI services for nearly three weeks, and was not yet in school, although he was receiving the ABA and speech/language services referred to above. At this April 23 appointment, Dr. Duffy found that Student’s condition had deteriorated dramatically in the month since the previous visit (in March 2003). In the March visit, Student was fully potty trained, was starting to repeat words, could shake his head for “no,” was less active than at the initial visit the previous year, had improved eye contact, could tolerate the office without overactivity, and was easier to examine. On April 23, Student was screaming so much that it was hard to examine him. Many of his autistic behaviors had returned. Dr. Duffy attributes Student’s worsening condition to the loss of services at age 3. (Duffy, P4)
58. In a letter of the same date, Dr. Duffy stated that Student had made little progress in expressive and receptive language since his third birthday, and that autistic behaviors had begun to return. Dr. Duffy also noted that for medical reasons, Student would have to be tapered off steroids soon, and “should…be receiving maximal therapeutic intervention so as to profit while the window is remaining open for advancement as facilitated by these dangerous steroids. For the family and the school to be in a standoff and no services be given, is not acceptable. There must be a way that [Student’s] ABA therapy can continue, at least for the next few months while the medication is tapered. Also, speech and language therapy must continue…[T]he very same…person [Caren Steinberg] who has been doing monthly evaluations must continue because I rely upon this for medication management…[A new provider] will not have past knowledge and [not] be able to make subtle, differential monthly evaluations that are crucial to continuing or discontinuing the medication…” (P4, Duffy)
59. Dr. Duffy’s opinion is that the package of services delivered by EI, including the ABA/DTT component, “worked” for Student; therefore, it should be continued in the school setting without significant change, at least until steroid therapy finishes, especially in light of the “profound” problems Student experienced when EI services ended. (Duffy) The record does not reveal whether Dr. Duffy had reviewed Quincy’s proposed IEP. He did not speak to any staff from the Quincy Public Schools about Student or his program. (Duffy)
60. On April 28, 2003, as previously agreed, Student began at the Della Chiesa Early Childhood Center, in a hybrid program of half days in the Intensive Special Needs Class (ISNC) and half days in the integrated preschool (IPS) (Mother, Haberstroh)
61. The ISNC is a substantially separate classroom that serves students with communication, social-behavioral, academic and functional skills disabilities, including PDD-NOS and PDD-ASD, Asperger’s syndrome, and non-verbal learning disabilities. (P13-1) According to an undated program brochure, the ISNC provides individual or small group instruction in a highly structured, low stimulus, intense language-based environment. The brochure indicates that the teaching approaches and methodologies include naturally occurring language interactions, modeling, scripting, shaping, chaining, task analysis, errorless training, ABA interventions, social stories, and other interventions designed to promote generalization. Therapeutic interventions are designed individually and integrated with classroom activities to promote generalization. Behavioral plans are individualized and include sensory-motor interventions, and ABA strategies. (P13)
62. The ISNC class currently has six students, aged 3-6, and is staffed by a special education teacher, two tutors, and an aide. A speech/language therapist, music therapist and behavioral specialist also provide services to the students in the program. The teacher, Susan Haberstroh, is a certified regular and special education teacher with 32 years of experience, 8 of which are in special education. Ms. Haberstroh has taken additional courses in educating children with PDD and autism. (Haberstroh; P12)
63. Student’s 1:1 aide is a certified Early Childhood teacher with 9 years of experience in preschool settings who is pursuing a Master’s degree in special education. The tutor has a Bachelor’s degree in psychology and is the parent of a child with autism who had been a student in the ISNP. The class paraprofessional has 11 years of experience as a daycare provider. (Id.)
64. The behavioral consultant, Kerri Connolly, is certified in regular and special education and has a Master’s degree in speech/language pathology. Her background includes 11 years of teaching, (5 at the ISNC), as well as working as a senior ABA therapist with the May Center and a behavior management counselor at Franciscan Children’s Hospital. (Connolly, P12)
65. The speech therapist, Kerry O’Brien, is a licensed, Master’s level speech/language therapist who has worked in this capacity in Quincy since 2001. She works with all students in the ISNC. She has worked with other children with autism, and worked with a child with Landau-Kleffner during a practicum before completing her training. (O’Brien P12)
66. Ms. Lisa Gargano teaches the integrated preschool program. She has Master’s degrees in early childhood and special education as well as specialized training in ABA, sign language, behavioral strategies, and communication systems. (P12-1)
67. Student starts the day in Ms. Gargano’s integrated preschool class, where he is accompanied by the aide from the ISNC and follows the regular schedule. (P36-7) The record does not specifically describe the schedule, but mentions motor activities, singing and dancing to music, and acting in a class play. (P36) Ms. Gargano routinely uses manual signs in conjunction with speech when communicating to the class. (Avery)
68. At about 10:30 AM, Student’s aide takes him to the ISNC where he spends the remainder of the day.9 Student is pulled out of class for speech therapy twice per week for 30 minutes with Ms. O’Brien, who also spends time in the classroom. (O’Brien) Student also is pulled out for OT. (Haberstroh) Parents and staff communicate via a daily communication log that goes back and forth with Student. (P36).
69. As of the hearing date, a functional behavioral assessment (FBA) was in progress but had not been completed. Ms. Haberstroh and Ms. Connolly are responsible for developing the FBA. The record does not indicate the projected completion date. (Mother, Haberstroh)
70. The behavioral specialist, Kerri Connolly, sees Student at home. Her work with Student comprises the “behavior team management services” mentioned as “additional information” in the IEP, as described in Paras. 46 and 48. Quincy does not list this service in the grid, state a particular amount of time for the service, and does not link it to any goals and objectives. (P19) Ms. Connolly testified that this is Quincy’s practice for all children in the ISNC; i.e., Quincy offers all parents the opportunity to work with a specialist at home on behavioral issues that concern them, but does not put the specifics in students’ IEPs. (Connolly)
71. Before the hearing, Ms. Connolly worked with Student at home for one hour per week. (Connolly) During the hearing, Quincy agreed to increase Ms. Connolly’s services to three hours per week, and so indicated in a stipulation, entered into the hearing record as a joint exhibit. (J1)
72. The ISNC staff uses various ABA principles throughout the school day, in that they seek to target behaviors to be increased or reduced, then use various behavioral techniques to elicit and reinforce positive behaviors, and reduce problematic ones. (Haberstroh) The particular approach emphasized is “naturalistic teacher moments.” This methodology also falls under the ABA umbrella, and entails reinforcing spontaneous positive behavior when it occurs, even if another skill is being addressed at that time. For example, if the designated skill that Student is working on is page-turning, but he spontaneously says “dog” in response to a picture of one in the book, the teacher would reinforce the naming behavior. On the other hand, a discrete trials therapist would not reinforce (i.e., would ignore) this utterance if naming objects is not the skill being worked on at the time. (Haberstroh, Connolly, Avery, P37-18)
73. At the time of hearing, neither Ms. Haberstroh nor any staff member working with her class was using discrete trials with Student at the Della Chiesa Center. (Haberstroh) Ms. Haberstroh testified that based on her experience, DTT, at least when used in home-based 1:1 sessions, is overly prompt-dependent and artificial and that children do not easily generalize skills learned in the sessions. She is not aware of scientific studies or articles reaching this conclusion or comparing the two techniques. (Haberstroh).
74. In addition to naturalistic teacher moments, Ms. Haberstroh uses various ABA techniques other than discrete trials, i.e ., strategies for modeling and shaping Student’s behavior. For the most part, however, she uses discrete trials only to replace specific behaviors, or when the more naturalistic approach is not successful for a particular skill. She is not, herself, an ABA therapist. (Haberstroh)
75. Ms. Haberstroh testified that Student “absolutely” made progress in the Della Chiesa intensive preschool setting. During the 12-14 school days between Student’s enrollment and the start of the hearing, Student began adjusting to the transition to school and learned to follow the school routine with verbal prompts, and a “tremendous” decrease in the amount of protest over transitions or directions. He also was able to make transitions from class to individual therapies. Ms. Haberstroh saw Student practice skills that Mother said he had lost (i.e., standing and turning when requested). The arm-biting that Mother observed could be stopped with hand prompts and had nearly disappeared in the school setting. Student would comply with requests with an “extremely” gentle touch or repeated, scripted instructions. (Haberstroh)
76. Ms. Haberstroh testified that she was not aware of Student bolting from the building or screaming currently, although he would occasionally “squawk” briefly in protest when it was time to stop an activity. (Haberstroh) Student did have these behaviors when he first started school, and Ms. Haberstroh had reported screaming and self-biting to Dr. Avery during her observation in early May 2003. (Haberstroh; P10-2)
77. Student has speech/language therapy in two thirty-minute pull-out sessions per week with Ms. O’Brien, where he works on expressive and receptive language, sound production, and language pragmatics. Services also include work on communication via basic signs, PECS and Mayer-Johnson pictures. Student has a communication board with the icons he is using to communicate. Initially, Student received individual services, but as of the hearing date, he was seen in groups of two or three children, which Ms. O’Brien testified was preferable for teaching pragmatics. Ms. O’Brien testified that the two one-half hour sessions are sufficient because Student is in a language-based class and because his attending skills are not well developed enough for longer sessions. She believes that when Student’s attending skills increase, the sessions should be longer. (O’Brien) Ms. O’Brien did not state criteria for determining when Student would be ready for increased speech/language therapy. During the hearing, Quincy stipulated that it would provide additional speech/language services if the TEAM so recommends. (J1)
78. Ms. O’Brien also testified that she consults to the ISNC, although it was not clear what her consultation services are for Student.
79. Ms. Connolly, Quincy’s behavioral specialist, testified that she is routinely assigned to provide home-based services to parents and children in the intensive special needs preschool. Usually she works on home carryover of skills learned in school, and also helps parents address in-home behavioral issues and daily living skills (such as eating, for example). When the hearing started, Ms. Connolly had seen Student eight times at home and in school. She worked with Student on various objectives, including choosing objects from a field of 2, sensory integration, block-building, and matching. (Connolly) She described Student’s progress at school as “bumpy,” which, in her experience, is not unusual for children with ASD. Ms. Connolly testified that her time with Student should be increased because of concerns with eating (he will only eat a few foods), self-stimulation, and biting himself. She believes that a flexible approach that combines several strategies and techniques is most appropriate for Student. Such an approach may include some form of discrete trial training. She believes that Student’s progress should be documented; however, she has found the contemporaneous charting of standard ABA/DTT to be disruptive to the therapy process. Ms. Connolly believes Student needs two or, preferably, three times as much home-based behavioral service as he was receiving at the time of hearing, and that he should receive a total of 27 to 28 hours of service per week. (Connolly) As stated above, on the final day of hearing, Quincy stipulated that it would add two more hours per week of Ms. Connolly’s services, to “include discrete trials if indicated.” (Connolly, J1)
80. Dr. Avery observed Student in both the integrated and special needs classrooms for a total of 2.75 hours on May 7, 2003, which was Student’s 5 th day in the Quincy placement. (Avery, P10-1) She also spoke with Ms. Haberstroh, Ms. Gargano (integrated preschool teacher) and Ms. Connolly. Dr. Avery concluded that while program staff are “caring, invested, committed professionals,” who “valued, enjoyed, and appreciated Student,” the program does not meet Student’s needs. (P10)
81. Dr. Avery’s opinion is that Student requires “a high level of one-to-one attention at all times in order to learn properly and to ensure his safety. “It is my impression that Student requires constant 1:1 attention and a significant component of [ABA/DTT] on order to learn properly” as documented in EI. [Student] displayed “rigid tendencies, dysregulation and self-stimulatory behaviors,” including screaming, pacing and other “non-functional stimulatory behaviors” throughout the observation, in both the intensive special needs class and the integrated setting. She was particularly concerned about self-biting, wandering and putting objects in his mouth, reported to her by both Ms. Gargano and Ms. Haberstroh, the onset of which “can be linked…to disruption in services upon his age 3 transition and an interim period of lack of services. Without adequate services, I would expect an increase in such problematic behaviors,” which, she testified, can be difficult to eliminate once established. (P10-2, 5; Avery)
82. Dr. Avery found that Quincy’s program, particularly the inclusion component, does not provide sufficient or intense enough adult support and supervision (i.e., she observed too much “down time” when the children were directed to play, but when Student just wandered and “stimmed”). She further found that the total communication approach with visual supports is not consistently in place; behavioral interventions are not as consistent as Student requires, the FBA had not been completed, and the in-home behavioral component was insufficient. (This is the component that Quincy increased to three hours per week). Dr. Avery both stated in her report and testified that Student does not yet have the skills for extended time in the integrated setting, although he can benefit from gradual, supported inclusion opportunities. (Avery, P10-5).
83. The conclusion of Dr. Avery’s report states that she has “concerns that [Student’s] continued placement in the program…and inadequacy of services will contribute to behavioral regression. I recommend that the team consider alternative programs for [Student] that can address his complex needs.” (P10)
84. Dr. Avery further testified that children with Student’s profile need a full-day, full year program, and that, based on relevant scientific research, the standard of care is a minimum of 25 hours per week, 12 months per year. Dr. Avery indicated that Student could likely tolerate this level of services, without excessive fatigue. Mother, Ms. Glidden and Ms. Connolly also testified that Student could tolerate an intensive level of services quite well. (Mother, Connolly, Glidden)
85. Finally, Dr. Avery, like Dr. Duffy, testified at length that a significant component of ABA/discrete trial training is essential for Student to make effective progress, both because ABA/DTT is the research-based standard of care for children with Student’s profile, and because Student has demonstrated that he benefited from this approach while in EI, and that his progress increased with the number of hours of ABA services. (Avery)
86. Ms. Haberstroh does not dispute Dr. Avery’s observations, but noted in her testimony that Student had only been in school for 5 days when the observation took place and was still in transition even as of the hearing date. She testified that many of the problematic behaviors had lessened or disappeared as Student got more accustomed to the program. (Haberstroh) Safety issues have been addressed via Student’s 1:1 aide. (S1)
87. On May 23, 2003, Caren Steinberg again assessed Student’s language progress in conjunction with his steroid therapy. Ms. Steinberg reported that Student “appears to have lost some receptive skills that he as demonstrated but is still able to demonstrate some imitation skills necessary for expressive language…His lack of progress at this time is of concern and should be addressed in his current educational setting with individual 1:1 intervention.” During Ms. Steinberg’s observation, Student waved good-bye to his mother with a prompt, easily put together an unfamiliar 10-piece puzzle, responded to the verbal and gestural prompt of “more” but did not sign “more” spontaneously, did not point to pictures of familiar animals when names, but did try to imitate initial sounds for animals when cued verbally, visually and with tactile prompts to lips. He pulled the therapist’s hands to indicate that he wanted more of a push-pull play activity. Ms. Steinberg commented that “this was a positive social and language interaction demonstrating clear intention and desire.” (P11) The record does not show whether the Quincy TEAM received a copy of Ms. Steinberg’s evaluation.
88. On the final day of hearing, June 11, 2003, Mother and Ms. Connolly testified that Student had had a difficult time the previous day. When asked to elaborate, Mother testified that Student had, for the first time, attempted to be aggressive with both Ms. Connolly and with her when he was frustrated, and attempted to bite and hit both of them. (Mother, Connolly)
89. Parents introduced an article entitled Best Practices for Designing and Delivering Effective Programs for Individuals with Autistic Spectrum Disorders , (“ Best Practices ”), authored by the Collaborative Work Group on Autistic Spectrum Disorders , of the California Departments of Education and Developmental Services in 1997. (P37)10
90. Witnesses for both parties (Dr. Avery, Ms. Haberstroh, and Ms. Connolly) testified that they agree with certain statements in the Best Practices article, as to characteristics of successful programs, including use of applied behavioral analysis for skill acquisition and reducing undesirable behaviors; an individualized approach incorporating several intervention methods; individualized programs because no single approach is right for every child, and also agreed that an intensive, flexible, multifaceted approach described in the article is appropriate for Student. (Avery, Haberstroh, Connolly; P37-18)
FINDINGS AND CONCLUSIONS
Based on the evidence presented at the hearing, as well as the applicable law, I conclude that Quincy’s IEP and services are reasonably calculated to provide Student with a free, appropriate public education, if modified to include some of the relief requested by Parents.
Specifically, Parents have shown by a preponderance of evidence that Student needs a behaviorally-based, twelve-month, five-day, full-day program with a significant component of ABA/DTT therapy (as well as other services) in order to receive FAPE. The record shows that while Quincy’s program contains many of the elements that Student needs, it will not provide FAPE to Student unless it is expanded and modified to incorporate one additional day of service per week, increased ABA therapy which may include discrete trials, increased support for the inclusion portion of the program, and a full time summer program that does not end several weeks before the start of the regular school year. Parents have not shown that Student needs daily direct speech/language, occupational or physical therapy.
I find further that Quincy committed some procedural violations but is not liable for compensatory service because the violations were de minimis and did not contribute to a denial of FAPE. Finally, Parents are entitled to be reimbursed for the costs they incurred to provide private ABA therapy from the time they began doing so after Student’s third birthday until implementation of the Order for Interim Services of May 16, 2003. My reasoning follows.
The FAPE Standard
The parties agree that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law. Effective January 2002, the Massachusetts special Chapter 766 has incorporated the federal FAPE standard for determining whether special education services are appropriate; thus, to determine if a child’s program is appropriate under state law, it is necessary to examine the relevant federal statutory provisions and case law, in conjunction with pertinent state statutes, regulations, case law, and agency interpretations.
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with an properly developed IEP. 20 USC Sec. 1401; 34 CFR Sec. 300.13. The state statute defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1.
In general, FAPE encompasses substantive appropriateness, LRE considerations, and conformity with the IDEA’s procedural requirements. Substantively, Federal courts have interpreted FAPE to mean an IEP and services that provide “significant learning” and confer “meaningful benefit” on the student via “personalized instruction with sufficient support services to permit the child to benefit educationally.” Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984). The IEP must be tailored to the unique needs of the disabled child, and must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991) and Burlington , 736 F.2d at 788. Some federal courts have held that “effective results” and “demonstrable improvement” should be measured in light of the student’s individual potential. See , e.g ., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000). On the other hand, the IDEA does not require districts to maximize a student’s potential, but rather to assure access to a public education and the opportunity for meaningful educational benefit. Lenn , 998 F.3d at 1091; G.D. v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
In Massachusetts, the Department of Education (DOE) has issued a memorandum analyzing the effect of the Commonwealth’s adoption of the federal FAPE standard. See Massachusetts DOE Administrative Advisory SPED 2002-1: Guidance on the change…from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (November 20, 2001) (“DOE Advisory” ) In this memorandum, DOE has commented that “court decisions make clear that FAPE is not a minimal or trivial standard.” Id . Moreover, according to DOE, one of the Legislature’s intentions in amending Chapter 766, in addition to adopting the federal FAPE standard, was to bring students with disabilities within the scope of the Massachusetts Education Reform Act, which “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential. Improving educational outcomes for students with disabilities is a goal of the state and federal special education laws, and improving educational outcomes for all students, including students with disabilities, is central to education reform” Id .
Additionally, DOE has interpreted the state statutory and regulatory educational standards referred to in G.L. c. 71B, Sec. 1 to include not only the special education regulations but also the state curriculum frameworks, promulgated pursuant to the Education Reform Act, such that all Massachusetts public school students, “including students with disabilities, are entitled to the opportunity to learn the material…in the Massachusetts curriculum frameworks.” Id .
Under both federal and state law, FAPE requires schools to educate eligible students in the least restrictive environment, i.e., to the extent appropriate, with children who do not have disabilities. 20 U.S.C. 1412(5)(A).
Finally, FAPE also entails complying with the procedural requirements of the IDEA. These requirements, among other things, are designed to ensure that IEPs are written by duly constituted TEAMs, with meaningful parental participation, and that services are delivered in a timely manner. A school district that violates a student’s procedural rights under federal or state law may be liable for compensatory services where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. , 910 F.2d at 994 (citations omitted). Thus, for example, “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). On the other hand, technical or de minimis violations that do not deprive the child of FAPE do not entitle parents to compensatory relief. Id . Moreover, compensatory education is in the nature of an equitable remedy. An award of compensatory service may be denied or reduced if undue delays or other actions on the parents’ part have contributed to the loss or denial of services. (Id).
If parents of an eligible disabled child can prove that their district’s IEP and services do not provide FAPE, they may be reimbursed for the costs of unilaterally obtaining a private program or services, if they also can prove that the private services are appropriate. 20 USC Sec. 1415 (d)(2)(H), School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). Thus, if a school offers inappropriate services that do not provide FAPE, the school may be required to reimburse a parent for the costs of a unilateral placement or services that are appropriate, i.e., that are “appropriately responsive to [a student’s] special needs;” so that the student can benefit educationally. Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Doe v. West Boylston School Committee , 28 IDELR 1182 (D. Mass., 1998); In Re Gill-Montague RSD , BSEA #01-1222 (Crane, August 2001).
Here, the parties basically agree on Student’s profile as well as on his need for an intensive program to address his identified needs. The major substantive dispute is whether Quincy’s program is appropriate, such that Student is making meaningful progress in the program as constituted, or whether Student requires a program meeting the Parents’ description, i.e., a year-round, full-day, five-day per week program; with a significant amount of individual, home-based ABA/DTT services; and daily speech-language and occupational therapy, and a home component of at least five hours per week. If Student either does not require these services, or if Quincy already is providing them, the inquiry stops.
If not, then the issues are (a) whether Quincy must provide, prospectively, the program requested by the Parents; (b) whether it can do so by modifying the current program; and (c) whether Parents are entitled to reimbursement for the private ABA services because they were obtained in the face of an inappropriate IEP and also were/are reasonably tailored to meet Student’s special educational needs.
The parties also dispute whether Quincy committed procedural violations that deprived Student of FAPE, in which case Parents may be entitled to compensatory service, or whether Quincy complied with the procedural requirements in evaluating Student and developing his IEP.
Appropriateness of Quincy’s program
The parties agree, and the record shows, that Student’s educational program should address all areas of need, in particular, language and communication, pre-academic, social and play skills, daily living skills (e.g., eating), and sensory integration issues. The record also shows that this program should be language-based, with a total communication approach (including consistent use of PECS and visual supports), should include a combination of individual and small group activities, some amount of supported inclusion, (the parties differ on how much) and a home component, as well as speech-language therapy, occupational therapy, and behavioral services. (Duffy, Avery, Haberstroh, Connolly, Glidden, O’Brien) Parents’ witnesses stated, without contradiction, that programming should be a 12-month, full day, full week program for a total of at least 25 hours per week. Dr. Avery testified that Student might benefit from as much as 30 hours per week. (Avery, Duffy, Glidden) One of Quincy’s witnesses, Kerri Connolly, testified that 27 or 28 hours per week would be appropriate. (Connolly)
The Quincy program meets or approximates many of these criteria. Student receives about 20 hours per week (distributed over 4 days) of classroom services plus 3 hours per week of home-based behavioral intervention, for a total of 23 hours/week. The intensive special needs class (ISNC) is small, with a high staff to child ratio and is designed for preschoolers with profiles similar to Student’s. (Haberstroh, P13) The teacher has experience and training in teaching children on the autism spectrum, and the tutors and paraprofessional also have varying degrees of experience and training in this area. (Haberstroh, P12) The class is language-based, and the teacher and other staff use visual supports for communication. (Haberstroh, O’Brien, Avery, P10) The staff uses various behavioral approaches to address communication, social, and academic needs of the children. Speech/language, behavioral, occupational, and physical therapy are available both as direct and consultation services, although the record is not entirely clear on how the OT and PT service model is structured. (P13, Haberstroh, O’Brien, Connolly)
There is less evidence about the integrated preschool program, but the record does show that the integrated preschool teacher, Ms. Gargano, is dually certified in early childhood and special education with specialized training in ABA, sign language, behavioral strategies, and communication systems, uses sign language throughout the day, and various behavioral strategies with Student. Student has an aide at all times, including in the integrated classroom. (P12, P10, P36).
The record also shows that Student has made progress in the preschool program. Quincy’s witnesses testified credibly that during his first weeks in the program, (late April to early June 2003) Student was learning to adjust to the preschool routine. He had learned to change activities more easily and with less prompting or protest. He was working on simple communication with signs, word approximations, and pictures, was improving his ability to build block towers, and was watching peers with interest. (Haberstroh, O’Brien, Mother, Connolly, P36) Quincy’s witnesses were also credible when they testified that they expect Student’s progress to be uneven, in light of his complex disability profile as well as the fact that as of the hearing dates, he had only been in school for a short time. (Haberstroh, Connolly)
Based on the totality of the evidence, however, Student’s program will have to be modified by adding a substantial number of hours of 1:1 ABA training that may include discrete trial training. The IEP and placement as constituted at the time of hearing do not offer sufficient individual ABA services, in the face of a preponderance of evidence that Student needs a substantial amount of such service to make meaningful progress. In addition, Student requires a five-day, twelve-month program. The record also shows that Student needs additional support in the inclusion part of the program. Thus, to provide FAPE, Quincy must expand or augment its program for Student to provide this level of service as well as to increase support to the inclusion program. On the other hand, the record does not establish that Student needs more direct speech therapy, OT, or PT than he currently is receiving.
The uncontradicted testimony and reports of Drs. Duffy and Avery, and speech therapist Caren Steinberg, as well as of Student’s former service providers from EI as to Student’s clearly show that Student needs and benefits from a substantial amount of daily, or nearly daily, individual ABA therapy.
Specifically, the record shows that Student made striking progress within the ABA portion of his EI program. In about a year, Student progressed from only being able to sit and work with a therapist for 2-3 minutes to being able to spend 30 minutes at a time working on discrete trials. He began to learn various skills that are integral to functional communication, such as responding to his name, standing and turning, pointing to an object, responding to some simple commands, scanning shapes, and choosing an object from a field of 2. (P15) Student was beginning to generalize some of the skills he was learning. (P15, Mother)
Additionally, Student showed improved response to his other EI services (speech therapy, toddler group, etc.) after he started receiving home-based ABA/DTT therapy, and his progress increased with the amount and intensity of ABA services.11 The reports and testimony of Drs. Duffy and Avery, as well as Caren Steinberg’s reports, are consistent with those of the EI providers. (Glidden, Mother, Duffy, Avery, P2, P3, P14, P15, P20, P30, P31, P34).
Moreover, the uncontradicted evidence shows that Student regressed when he lost this service, (along with all other EI services), at age 3. (Mother, Duffy, Avery, P44)) It is impossible to parse out how much of this benefit and subsequent regression result from the addition and loss of ABA/DTT services in particular, as opposed to the abrupt loss of all services at age three (except for the interim speech and ABA services that Quincy and Parents provided before April 28), as well as the subsequent transition to preschool, which would be difficult for any child with Student’s profile. (Duffy, Haberstroh, Connolly)
Additionally, Student’s steroid treatment and its effects, including the effects of tapering the medication, is another complicating factor. Dr. Duffy testified, without contradiction, that ABA services were necessary for Student to fully benefit from the “window of opportunity” provided by steroid treatment, and that Student regressed when he lost all services. (Duffy) As stated in the Order of May 16, 2003, I conclude, based on Dr. Duffy’s testimony as well as by the other pertinent evidence discussed here, that Student would have been harmed unless a significant amount of ABA services were reinstated during steroid treatment. Further, Mother testified that during Student’s first months of steroid treatment, “everything came together,” in that he could now benefit from all his EI services, including ABA. (Mother, P2, 3) On the other hand, near the time of hearing, Student’s steroids were being tapered and he was having some health problems related to the medication. (Mother, P44) Notwithstanding all of these factors, however, the record shows unequivocally that Student made gains during the time he was receiving ABA as a significant part of his total service package, and, as stated above, required ABA while receiving steroid treatment. (Parents, Glidden, Duffy, P15)
The record also shows that at the time of hearing, even after some time attending school in Quincy’s program, Student still had not recouped all of the skills lost shortly after his third birthday, including the ability to point and follow certain directions, or to use the word “no,” except when prompted. (Mother, P44) Additionally, some old problematic behaviors had re-emerged or worsened (chewing non-food items, screaming, overactivity) and new ones developed, including self-injury and aggression to Mother and Ms. Connolly. (Mother, Avery, Connolly, P36-3, P44) Even Quincy’s witnesses testified that ABA with discrete trials might be appropriate for addressing this type of behavior. (Haberstroh, Connolly)
Further, Dr. Avery’s testimony and report stating that the Quincy program as constituted during her visit did not meet Student’s needs is persuasive. Ms. Haberstroh’s testimony that the observation took place very early in Student’s tenure in the program, while he was still in transition, may explain some of the behaviors that Dr. Avery observed (e.g., screaming), and the safety issues Dr. Avery raised may have been resolved by ensuring that Student is always with his 1:1 aide. This does not undermine Dr. Avery’s ultimate conclusion that the program is needs modification, however. Quincy provided no evidence that specifically counters Dr. Avery’s testimony that language and behavioral supports were not used consistently. (Avery)
Finally, the testimony of Quincy’s own behavioral specialist, Kerri Connolly, is highly persuasive that Student needs additional behavioral services. Ms. Connolly has a background as a senior ABA therapist at the May Institute, in addition to her experience in the Quincy Public Schools. She testified that she had actually “burned out” on discrete trial teaching as large component of her job, believes a flexible approach can be appropriate for Student, and also testified, based on her hands-on work with Student, that he needs behavioral services in addition to those stipulated in the original IEP, and that discrete trial teaching might be appropriate for Student.12 (Connolly)
To summarize, every professional who worked with Student before he turned three, from Step One, HMEA, and Children’s Hospital, supports Student’s receiving ABA as a significant component of Student’s program. (Duffy, Avery, Glidden, P15) These witnesses and others base their opinions on both their professional experience and their experience with Student over time.
Quincy’s witnesses, on the other hand, put forward no basis for opposing added ABA instruction other than Ms. Haberstroh’s experience that children did not generalize what they had learned in discrete trial training. No witness for Quincy observed Student when he was receiving ABA before age 3, or had first hand experience of his progress with this service. There is no evidence that Quincy staff communicated with Student’s private ABA provider, or reviewed data sheets, after Student entered the Quincy Public Schools. Quincy did not show or allege that ABA would be harmful to Student, or is incompatible with “naturalistic teaching moments.”
Thus, there is no evidence Student cannot benefit from both approaches, as well as other appropriate strategies. On the contrary, the record shows that the current best practice for teaching young children on the autism spectrum is a flexible, customized approach that draws from more than one discipline and methodology, but often includes ABA with discrete trial training. (Haberstroh, Connolly, Avery) Moreover, one of the advantages of adding ABA to Student’s schedule is that the data collection component is a built-in method for assessing if the service is helping Student. Finally, there is evidence that other components of Student’s program might be more effective if he receives and benefits from more individual behavioral assistance. For example, the speech therapist testified that with better attending skills, which improved dramatically when Student received ABA in the past, Student could benefit from additional individual speech/language therapy. (O’Brien)
Based on the foregoing, I conclude that the Parents have proved, by a preponderance of the evidence, that a significant portion of Student’s educational program must include individualized ABA services, including discrete trial training, if he is to make meaningful educational progress.
It is less clear how the ABA services should fit in with the remainder of Student’s school day, especially since as of the hearing he already was receiving five hours per day, four days per week in the language-based classrooms and inclusion classrooms plus two hours per week of in-home service, for a total of 22 hours per week, that would increase to 23 hours with the addition of another hour of Ms. Connolly’s behavioral services. In her report of May 2003, Dr. Avery stated that student should receive at least 25 hours of service per week, up to 50% of which (12.5 hours) should be 1:1 ABA. Dr. Avery also testified that as many as 30 total weekly service hours per week might be appropriate. Ms. Connolly testified that Student should receive a total of 27 to 28 hours per week of service, including about 3 hours of home-based therapy.
I conclude that Student should have 27 or 28 hours per week of services as recommended by Ms. Kerry, as this figure would meet the recommendations of professionals who testified for both parties. (Avery, Connolly). I also conclude that this should include a substantial amount of 1:1 ABA instruction, with close coordination among Parents, ABA providers, teachers, and other service providers. This conclusion is based on Student’s positive response to ABA while he was in EI, which response improved as the number of hours of instruction increased. Additionally, Dr. Avery was persuasive that Student works well in the 1:1 format and can become dysregulated, self-stimulatory and lose learning opportunities outside of the 1:1 setting.
However, there is not enough evidence on the record for me to determine how many hours of ABA services Student should receive. Student had only been in a school setting for a few weeks. Student’s functional behavioral assessment (FBA) had not been completed, and so the results were not available. Further, Student’s steroid dosage was being tapered, and he had been having problems with medication side effects. What the record does show, however, is that Student needs a significant amount of ABA for FAPE, and that this should be an integral, rather than peripheral, part of his program. Therefore, the TEAM should determine how much 1:1 behavioral intervention Student needs, based on current information. Part of that information will now be Student’s response to the 12.5 hours per week of ABA that was ordered after the Motion hearing in this case.
Parents have requested home, rather than school-based ABA; however there is no evidence that either setting is more or less appropriate than the other. Therefore, the TEAM should determine the location, as well as the amount, of the ABA service, and also determine how Student’s time should be allocated between classroom and individual services within the above parameters.
Other modifications and services
Parent has not demonstrated that Student needs direct speech, OT and PT on a daily basis; therefore, I decline to order these. However, Dr. Avery testified without contradiction that speech/language strategies needed to be implemented more consistently in the classroom settings. (Avery) Again, the TEAM should develop a plan to achieve this goal, perhaps with increased consultation and/or meetings among all service providers.
Length of School Week and Year
The record establishes that Student needs a full-year program. (Duffy, Avery) Student has serious needs and regressed when he went without more that a few hours of service for only two or three weeks in April 2003. Quincy does not dispute that Student needs an extended school year (ESY) program. However, the ESY program that Quincy offers is only five weeks long. Quincy has presented no evidence that the short length of its summer program meets Student’s needs, or that the ESY schedule was developed to meet those needs. Therefore, Quincy must ensure that Student’s ESY program lasts for the entire summer, so that Student receives the full 12 months of programming recommended by the various evaluators must be provided with a full, 12-month program. Similarly, the evidence shows that Student needs to be in school five days per week. Quincy’s program is only four days per week, for administrative reasons not related to Student’s needs. Therefore, Student must be provided with a fifth day of service.
Support for Inclusion Portion of Program
While the parties have some differences on how much inclusion is appropriate for Student, this issue was not fully developed at hearing. There is undisputed evidence that Student would benefit from additional support in the inclusion portion of the program. (Avery) Therefore, such support should be provided, as recommended by the TEAM.13
Procedural Violations/Compensatory Services
Parents assert that Quincy failed to evaluate Student in a timely manner, denied Parents meaningful participation in the IEP process, and failed to adequately consider the reports of Student’s Early Intervention providers. The record shows, however, that while Quincy may have committed some procedural violations, these either did not deprive Student of FAPE or caused de minimis deprivation that was or is subject to correction via the May 16 Order or by the prospective relief in this Decision. Murphy v. Timberlane at 22 F.3d 1196.
Specifically, pursuant to 603 CMR 28.04(1)(d), Quincy was required to evaluate Student in October 2002 upon receiving Parents’and Step One’s initial referrals, as Student had reached age 2.5 years. However, even though Quincy delayed evaluating Student until March 2003, contrary to the requirements of this regulation, it did complete much of the evaluation (except for the FBA, OT and PT assessments), find Student eligible, and issue an IEP in time to start special education services by his third birthday as required by this same regulation as well as by 34 CFR Secs. 300.121(c) and 132. The OT and PT evaluations were completed shortly after his third birthday. The FBA was in process during the hearing. I conclude that the delay in evaluating Student either did not deprive him of FAPE, or, to the extent that it did, did so for a minimal amount of time, and that such deprivation has been and will be rectified as described above.
Parents also contend that the IEP was flawed in that it did not, among other things, state a specific number of hours for the length of the school day, and did not specify objectives for OT and behavioral support (see Finding No. 48.) The federal regulations at 34 CFR Sec. 300.347(a) require IEPs to state goals and objectives as well as the special education and related services that will be provided to enable the child to advance towards attaining annual goals, progress in the general curriculum and participate with non-disabled children. State regulations at 603 CMR 28.05(3) and (4) have similar requirements and, in addition, require a specific statement of reasons if the child’s school day is shorter or longer than the regular school day. Id. at 28.05(4)(d). I conclude that the IEP should have stated goals and objectives for OT and behavioral support. Again, however, if there was a deprivation of FAPE, it was minimal and/or has been corrected with the Interim Order, and/or the Order in this Decision. Specifically, to provide the behavioral services ordered, Quincy would have to complete an FBA. Also, there is no evidence that Student would not be receiving appropriate PT and OT services if needed. In addition, although Quincy did not adopt all findings of the evaluators from EI, they were not required to do so, and the record does not establish that Quincy failed to consider information that was made available at the time of the TEAM meeting. See 20 USC Sec. 1414(d)(B); 34 CFR Sec. 300.342(c).
Although Quincy did not issue the written notice of the initial TEAM meeting required by 20 USC Sec. 1414(d)(1(B)(1) and 34 CFR Sec. 300.345(a) and (b), Parents actually participated in TEAM meetings as well as other, informal meetings with Quincy staff. The failure to issue written notice was, therefore, a technical violation that did not deprive Student of FAPE.
I conclude, therefore, that the procedural violations either did not deprive Student of FAPE or did so minimally, in a manner that has been or will be rectified by the relief already provided. Therefore, Parents are not entitled to compensatory services. Murphy v. Timberlane at 22 F. 3d 1196.14
Because Quincy did not offer significant ABA services in its initial IEP, Parents are entitled to be reimbursed for out of pocket expenses for ABA services from Student’s third birthday up to and including implementation of the Order of May 16, 2003 (exclusive, of course, of services that Quincy already paid for, See Finding No. 55). Burlington at 471 U.S. 369-70. Parents did not file a motion for implementation of that Order or otherwise indicate to the BSEA that Quincy had failed to provide appropriate ABA services, therefore, there is no basis to reimburse Parents for any services that they might have paid for after that point.
CONCLUSION AND ORDER
Quincy shall modify Student’s IEP and placement for April 2003 through April 2004 to add ABA services, expand the ESY program, and provide additional inclusion support as described above. Quincy shall also reimburse Parents for expenses for privately funded ABA services from Student’s third birthday up to and including implementation of the Order of May 16, 2003. As Quincy did not commit any procedural violations that deprived Student of FAPE, Parents are not entitled to compensatory relief.
By the Hearing Officer:
In sum, the Order granted Parents’ request for ABA/DTT therapy in addition to Student’s then-current services, having concluded that Parents had demonstrated a likelihood of irreparable harm if ABA services were not reinstituted pending the end of steroid therapy or a final decision. Parents’ request for speech- language consultation was also granted; however, the request for a specific, named speech/language consultant was denied, as the hearing officer found that any properly credentialed, and disinterested speech/therapist could perform the functions at issue, as long as the substitute monitoring therapist received sufficient transition information from the initial therapist.
PECS stands for Picture Exchange Communication System, which uses photos or line drawings (“icons”) to give non-verbal or pre-verbal individuals access to communication. (Avery)
The report states that the ADOS is not designed to be used by itself to diagnose autism but rather is a “semi-structured assessment of communication, social interaction and play for individuals suspected of having autism or…PDD. “ The ADOS is to be used in combination with history and other clinical information to aid in diagnosing autism. (P32-5, 7)
Student’s birth date is April 3, 2000. He aged out of EI on his third birthday, April 3, 2003. He reached age 2.5 on October 3, 2002.
A BEAM study is a type of EEG
The Step One speech-language therapist wrote a synopsis of Student’s progress in January 2003, and recommended continued speech-language therapy after age 3, but did not report results of formal testing. (P34) The record does not show whether or not the Quincy TEAM had received the report.
As of the January 2003 report, Student’s ABA programs in progress included numerous specific skills including gross motor imitation, imitation of block building patterns, looking in response to point cue, imitating actions with objects, making choices of objects, identifying body parts, matching, responding to commands, and verbal imitation. Mastered programs included responding to his name, visually scanning shapes, and responding to “come here.” P31-4, 5.
April 28 was the first day of school after the April vacation. Mother was advised that it would be better for Student to start school during that week rather than the week prior to vacation (April 14-18) because, during the earlier week, there was to be a field trip one day, and a substitute teacher another day. (Mother, Haberstroh)
Initially, Student went to the specialized classroom in the morning and the integrated preschool in the afternoon. Shortly after school started, his schedule was reversed because this was less tiring for Student . (Mother, Haberstroh)
Parent also introduced two other articles: Mental Health: A Report of the Surgeon General , Chapter 3, “Other Mental Disorders in Children and Adolescents…Autism.” (Undated) (“Surgeon General’s report”), (P38); Smith, Tristam, Outcome of Early Intervention for Children with Autism , Clinical Psychology : Science and Practice, Vol. 6, No. 1 (Spring 1999) (P41) No testimony was offered on these articles, however.
Some of the testimony in this case involved the relative merits of discrete trial training versus naturalistic teaching moments. (Avery, Haberstroh, Connolly, Duffy, Glidden) It would be a mistake to characterize this case as a dispute over methodology, however, as, in the final analysis, the parties agreed that Student needs a flexible approach incorporating many recognized strategies. While I am persuaded by the evidence that he needs more 1:1 behavioral services than he is getting, and that these services should include ABA therapy, I neither criticize “naturalistic teacher moments” nor attempt to dictate methodology, so long as the approaches used are helping Student. The conclusion simply is that 1:1 ABA therapy is necessary as part of a total package of services for Student , along with speech/language therapy, OT, etc.
Ms. Connolly is to be commended for putting forward her professional view of Student’s needs even though this led her to depart, somewhat, from her employer’s initial litigation position. Quincy also should be commended for adding behavioral services in response to Ms. Connolly’s testimony rather than attempting to discredit her opinion.
The parties are fortunate that the inclusion teacher has dual certification and many relevant skills (sign language, familiarity with PECS, etc.)
Since Quincy is not liable for compensatory services, I need not address the effect on such liability of Parents’ brief delay in sending Student to school in April 2003.