COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools v. Student – BSEA # 05-2342
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on November 23, 2004, at the BSEA, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.
Boston Public Schools (hereinafter, “Boston”) made an oral closing argument at the conclusion of the hearing but the record was kept open until Wednesday, December 1, 2004, to allow Parent an opportunity to provide a written statement for my consideration once she received and reviewed the tapes of the hearing, mailed to her on November 23, 2004. Parent submitted nothing. The record closed on December 1, 2004.
Those present for all or part of the Hearing were:
Alissa Ocasio, Esq. Attorney for Boston
Elizabeth Kurlan, Esq. USS Litigation, Boston
Lisa Martiesian Assistant Program Director, Special Education Private Placement, Boston
Richard Kelly Principal, Cardinal Cushing Center
Lynda Ingram Director of Social Services, Amego Inc.
Lisa Wirth Director of Student Services, Amego Inc.
Parent was not present nor did she submit any documents for consideration by the hearing officer imposed November 22, 2004 deadline established during the telephone conference call of the same date. Boston Public School’s Exhibits (hereinafter, “SE”) 1 through 14 were admitted in evidence and were considered for the purpose of rendering this decision.
ISSUES PRESENTED:
1. Whether the March 2004-March 2005 IEP (SE-1) proposed by Boston and calling for residential placement of Student at Amego Inc. (hereinafter, “Amego”), affords Student a FAPE and is the least restrictive environment appropriate to meet his needs.
2. Whether Parent’s refusal to allow Student to attend Amego program constitutes a denial of FAPE for Student.
POSITION OF THE PARTIES:
Boston’s Position:
Boston asserts that at this time Student must be educated in a residential program as a result of his severe disabilities related to autism, low cognitive functioning and behavioral issues. Over the past several years Student has had eight placements in five different private schools at public expense. Every time, Parent refused services offered by Boston to support these placements and each time (except for Student’s termination from Cardinal Cushing in April 2004) Parent terminated Student’s placements, alleging that the programs failed to educate and service Student. Student’s aggressive and unsafe behaviors escalated significantly between December 2003 and April 2004, culminating in termination of his placement at Cardinal Cushing. At that time all of the members of his team except for Parent recommended that he be placed in a residential program. Parent however, accepted the IEP and agreed to a three-month residential placement of Student at Amego.
Boston and Amego personnel affirmed that Student was progressing effectively in the Amego program but following a program review Team meeting on October 24, 2004, Parent notified the participants that Student’s placement at Amego would terminate on October 29 th alleging that Student was not being educated or serviced in that program. Parent has not allowed Student to return to Amego and Parent is currently keeping Student at home without any educational services. Parent’s actions constitute a denial of FAPE for Student who according to Boston requires residential placement. Boston seeks a determination that residential placement at Amego is the least restrictive placement appropriate to meet Student’s needs at the present time.
Parent’s Position:
Parent was not present at the Hearing and did not submit any documents or arguments to defend her position..
PROCEDURAL BACKGROUND:
Boston filed an expedited hearing request on November 12, 2004. Also on November 12 th , the BSEA received a letter from Attorney Peter F. Carr II stating that he represented Parent and requesting that a hearing not be scheduled until after November 22, 2004 as he was out of state. On November 15 th the BSEA Director granted expedited status to Boston’s hearing request, and a hearing notice setting the matter for hearing on November 23 rd , was forwarded to Boston’s attorney and Carolyn Riley of Boston, as well as to Parent and Attorney Carr. Thereafter, Boston filed its witness list on November 18 th and the exhibits on November 19 th .
On November 18, 2004 Attorney Carr filed a request for postponement of the Hearing until November 29 th , because he had not received nor reviewed documents. Since he would be out of state until November 22 nd , he would not have sufficient time to prepare. Boston filed an Opposition to the postponement also on November 19 th stating that the matter had been granted expedited status and that substantial harm could come to Student as a result of his failure to attend his residential placement. On November 19 th , a hearing officer initiated telephone conference call was scheduled for November 22, 2004 at 11:00 a.m. In the afternoon of November 19 th Attorney Carr filed a copy of his notice to Parent that he would not be representing her because she had failed to respond to the numerous calls placed by his office, and had not signed documents for representation.
A telephone conference call was held on Monday, November 22, 2004, during which Parent was advised that the hearing would proceed as scheduled unless Student returned to his then current program pending the result of a hearing on the appropriateness of his placement. If that were the case, then the Parent’s motion for postponement of the hearing would be granted. Parent however, was unable to commit to allowing Student to return to school.
Parent further stated that she had not been able to get an attorney and therefore, would not attend the hearing. She further stated that the reason her previous attorney had decided not to represent her was because he knew this Hearing Officer. When my assurance that I did not know the attorney was insufficient to persuade her, I called Attorney Peter Carr and included him in our conference call. Attorney Carr confirmed that he did not know me in any capacity. Parent stated that he also knew Boston’s Attorney. Attorney Carr also denied this, stated that there was no conflict of interest, and assured everyone that the reasons for severing his professional relationship with Parent were totally unrelated to Parent’s allegations.
Since Student was being kept out of school and in light of Boston’s (the moving party’s) opposition to the postponement, the Parent’s request for postponement was denied and Parent was advised to appear before the Bureau of Special Education Appeals for a hearing the next day. Parent was given until 5:00 p.m. on Monday November 22 nd to submit any of the documents to which she referred during the conference call, was advised that she did not require an attorney to appear before the BSEA, and was told that I would accept the testimony of the one witness she mentioned via telephone conference call.
FINDINGS OF FACT
· Born on November 14, 1990, Student is a fourteen-year-old eighth grader placed residentially by the Boston Public Schools (hereinafter, “Boston”) at Amego in Mansfield, MA, between August 2 and October 25, 2004. (SE-1; Testimony of Ms. Martiesian) Student has been diagnosed with “autism spectrum disorder, he is nonverbal and communicates through he use of voice output devices, sign, Mayer –Johnson icons and limited verbalizations.” (SE-1) Cognitively he is approximately at a two year old level and his greatest weakness is verbal communication. ( Id. ) Teachers report that Student can be very inattentive. His behavior impacts his ability to follow directions, to comply with requests and follow familiar routines, such as bathing and toileting. Student’s strength is in his motor ability. (SE-1) Student’s disabilities significantly affect the acquisition of core content in all areas of the curriculum and the rate at which he learns is also greatly below that of his typical peers. (SE-1) Currently Student is taking Moban, Respiradol and Strattera to address his autism. ( Id. )
· Student is five foot eleven inches tall and weighs over 200 pounds. (Testimony of Mr. Kelly) He has been described as having a large imposing figure that can be intimidating at times. (Testimony of Mr. Monnin, Mr. Kelly) Student presents with obsessive/compulsive behaviors such that once he engages in an aggressive behavior the service providers may be able to interrupt the behavior, as for example removing Student to a different area or situation, but the behavior cannot be stopped. After a period of time, when Student returns, he will re-engage in the aggressive behavior and complete what he started. (Testimony of Mr. Kelly)
· Between August 2003 and April 2004 Student was placed by Boston at Cardinal Cushing/St. Coletta, and later in August 2004, at Amego. (Testimony of Mr. Kelly) Prior to entering Cardinal Cushing/St. Coletta, Student attended the May Center, Melmark, Hagassi and other programs. (SE-4; Testimony of Ms. Martiesian) He was terminated from all of these placements by Parent who alleged that Student was not receiving appropriate services. (Testimony of Ms. Martiesian)
· Richard A. Kelly, School Principal at Cardinal Cushing Center’s (also referred to as St. Coletta) day placement, explained that this was a private Massachusetts approved day school in session 260 days per year. (Testimony of Mr. Kelly) Programs run from 8:30 a.m. to 3:30 p.m. and include academic, social, communication and other skills. Applied behavioral analysis is used to address the students’ behavioral issues and speech and language therapy, communication skills, adaptive physical education, functional life skills, pre-vocational activities and community experiences are offered. (Testimony of Mr. Kelly) All of these services were offered to Student. ( Id. ) The students at Cardinal Cushing/St. Coletta are closely supervised, often with a two students to one staff, or one student to one staff ratios, and two staff to one student ratio in cases where behavior is extreme and safety can be compromised. According to Mr. Kelly, 18 to 20% of the students in this school carry a diagnosis of autism. (Testimony of Mr. Kelly)
· Student first attended Cardinal Cushing/St. Coletta in May 1998 but left shortly thereafter when Parent requested that Student be placed at the May Center. He returned to Cardinal Cushing/St. Coletta in October 1998 when Parent became dissatisfied with the May Center’s program. (Testimony of Mr. Kelly) Student left Cardinal Cushing/St. Coletta in April 1999 and was returned again on or about July 24, 2001. ( Id. ) Mr. Kelly believed that Student had the ability to be educated if provided a supportive, consistent, structured environment. (Testimony of Mr. Kelly)
· Between May 25, 2001 and October 28, 2003, Marsha Breiteneicher, of Cardinal Cushing Center, reported at least eleven attempts to assist Parent with in-home services to strengthen and support home-school coordination. (SE-9) Specific attempts were made on 5/25/01, 9/24/01/, 2/08/02, 2/13/02, 2/27/02, 4/04/02, 5/21/02, 9/20/02, 10/01/02, 12/18/02, and 10/28/03. Parent rejected the services, would not allow service providers in the home, and when services were offered (during brief periods of time), Parent terminated them stating that the service providers “were not the right people”. (SE-9)
· A Pratt Psychiatry visit note of April 14, 2003 described some of Student’s aggressive behaviors in the home, especially hitting others on the head repeatedly, sometimes quite forcefully. (SE-12) Dr. Joseph J. Jackowski, the treating psychiatrist, recommended consideration of residential placement for Student and intervention by a behavioralist in the home and school. (SE-12) Student was on Paxil 37.5 mgm., Alibify 15 mgm., Dexedrine 50 mgr., Cogenten 0.5 mgm., and he was tapered off the Risperdol. (SE-11) The plan was to decrease the Dexedrine and add Strattera. ( Id. )
· On October 6, 2003, a 3-year behavioral assessment was performed by Jennifer Scott, a Behavior Specialist, at Cardinal Cushing/St. Coletta. (SE-6) The evaluation was conducted and a report issued because Student was found to be unavailable for learning due to his moderately serious disruptive behaviors, which were constant throughout the day. (SE-6) Given Student’s size and his drive/need to follow through with an aggressive behavior once he initiated it, he posed a safety hazard to the staff and to himself. At times he used his body weight, or one or both hands to get to or to get by a staff person. Furthermore the entire day was spent directing and redirecting Student to appropriate tasks. Additionally, Student engaged in a series of compulsive or ritualistic behaviors such as tapping or touching different surfaces, touching the aides on their face, neck or heads, mouthing or licking objects, sniffing staff, hopping, and engaging in self-stimulatory behaviors such as rubbing his chest or tapping his teeth. (SE-6) If interrupted when engaging in these behaviors, he became aggressive with the staff and used his body weight to execute and complete his compulsion. (SE-6) Student’s extremely poor communication skills and high dependency on others were factors felt to contribute to the aggressive behaviors. (SE-6) His extremely disruptive behavior made it very difficult for staff to ascertain his potential and capabilities. (SE-6) At the time of this report, Student was not responding to interventions such as rewards, ignoring the behavior, restricting privileges, removing the distracting materials, providing visual cues, time-out room, praise, social reinforcement or providing a quiet work place. (SE-6) While it was recommended that all of these interventions continued to be in effect, the staff was of the opinion that it was not feasible for Student to have a behavioral goal he could attain in his IEP because he lacked control of the compulsive, ritualistic behaviors in which he engaged, and the staff was at risk of harm if they physically interfered with the behaviors. Also, there was great variability in the behaviors. Furthermore, there was poor communication between family and the staff, and the staff had many concerns and questions regarding medications. (SE-6) At parental request, Cardinal Cushing/St. Coletta’s staff was not allowed to have any contact with Student’s doctors or medical providers. (SE-6)
· Between September 2003 and April 2004 the staff at Cardinal Cushing/St. Coletta noticed a great increase in the frequency, amount and intensity of aggressive behaviors displayed by Student in school and while being transported back and forth to school. (SE-13; Testimony of Mr. Kelly)
· Student was transported daily to Cardinal Cushing/St. Coletta via a mini-bus. A bus monitor was assigned to him. (SE-13) Incident reports from September 29 through November 20, 2003 state that Student hit the driver on the head several times every day and also hit the monitor causing an injury to her at least once. He also blew mucus into his hand and ate it. When attempts were made to stop him, his aggressive behavior increased. On at least one occasion Parent rode with them and Student hit her as well. This behavior posed safety concerns for Student, the driver, the monitor and other students in the bus. (SE-13) On November 13 th , the driver requested that a male monitor who could better handle this “large strong boy” be assigned to the bus. (SE-13)
· At the annual review meeting held on October 28, 2003, Student’s Team agreed to proceed with an ABA and a behavior evaluation and have the Team convene when the results were available. (SE-9) The Team was rescheduled three times and finally convened on March 18, 2004. ( Id. )
· Student’s IEP dated November 16, 2004, promulgated after the October 28 th Team meeting, states that,
… with a very short initial attention span Student’s behaviors have increased, while the ability to control his behaviors in a day school setting have decreased. [Student] engages in a number of repetitive behaviors throughout the day, including the touching of others’ faces, and head, touching the floor, hopping on one foot while walking, constant nipple play and mouthing of various objects and materials. Student used to readily respond to verbal cues and redirection but would repeat the behavior soon after. This had changed in that [Student] needs additional cues and redirection. What has increased is Student’s forcefulness in attempting assaultive behaviors, which have led the team to be concerned for his safety and for the safety of those around him. (SE-1)
The Team was of the opinion that if expectations were placed on Student, his behaviors intensified. He seemed more forceful in attempting assaultive behaviors raising concerns over his safety and that of those around him. (SE-1)
· Student’s progress by January 2004, was reported as follows: regarding receptive language, he could follow one-step directions with verbal prompting once he understood the routine. In reference to his expressive language, Student used a total communication system, which incorporated signs, body language, gestures as well as pictures to make his needs known. (SE-11) Student utilized a snack circle and music miniboard but required verbal and gestural cues to use them. He recognized simple Mayer-Johnson symbols and required minimal assistance in using them to prepare food items such as a grilled cheese. Verbal prompts were used to ensure that he remained on task when engaged in food preparation. (SE-11) His overall performance was directly related to his ability to attend to task, something that fluctuated greatly throughout the day. In adaptive physical education, which focused on stretching and flexibility, Student could attend to group and individual activities if short breaks were provided. Due to medical issues, Student did not participate in adaptive physical education during his second quarter at Cardinal Cushing/St. Coletta. (SE-11)
· The January 2004 progress reports stated that Student was motivated to engage in activities he preferred. (SE-11) He enjoyed moving around. With an average of five verbal prompts he was able to complete some pre-vocational tasks such as making photocopies, vacuuming, and sweeping the floor. His compulsive behaviors however, got in the way of his being able to do the laundry. (SE-11) Student was able to order his lunch by using a picture communication board, was able to dress and undress himself independently or with minimal supervision. Cardinal Cushing/St. Coletta holds its programs in two separate buildings and Student could put on his coat independently and go from one building to the other. (Testimony of Mr. Kelly)
· Medication was a serious issue for the school staff, as Parent refused to give the names of Student’s doctors or sign releases and did not provide much information regarding Student’s medications. (Testimony of Mr. Kelly) The nurse on staff consulted the School’s psychiatrist regarding medication. Since Student’s medications changed frequently, and there was poor communication with the home, it was difficult to know what medications were being given at home and what impact they would have on Student in school. ( Id. ) This same issue would later be confronted by the staff at Amego. (Testimony of Ms. Worth) During the period from August 2003 through April 2004, while in school, Student was medicated with Moban 50 mg. and Strattera 25 mg. daily at noon, and Respirdal 1 mg. at 1: p.m. daily. (SE-11)
· On January 8, 2004 Student underwent an unscheduled re-evaluation at Parent’s request. (SE-4) According to Parent, Student was having extreme difficulties in his then current placement at St. Coletta and she had witnessed an escalation of aggressive behaviors at home. (SE-4; SE-5) She believed that Cardinal Cushing/St. Coletta was not providing the necessary services to Student and wanted Student to attend a different private day school. (SE-4) Boston performed a psychological and an Applied Behavioral Analysis (hereinafter, “ABA”), evaluation in January and February 2004. (SE-4; SE-5) According to Mr. Kelly, Student had initially demonstrated progress when he first arrived in Cardinal Cushing/St. Coletta but was no longer doing so because his behavioral issues were getting in the way of his education. (Testimony of Mr. Kelly)
· The psychological evaluation was performed on January 8 th by Leon J. Monnin, Ph.D., a licensed psychologist in Boston. (SE-4; Testimony of Dr. Monnin) He reviewed Student’s records at St. Coletta and earlier evaluations performed by Franciscan Children’s Hospital. (Testimony of Dr. Monnin) Dr. Monnin remarked that Student’s attention span during the evaluation was very short and stated that he did not use oral expressive language although he enjoyed imitating sounds such as “giving raspberries”. (SE-4) Student was noted to look up frequently and become non-responsive although he would occasionally reconnect after a period of time. At times he responded impulsively and aggressively which, given his height and weight, was intimidating to the evaluator and triggered safety concerns. (SE-4) Cognitive evaluation results were consistent with previous results placing Student in the severe cognitive level with significant deficits in both expressive and receptive language functioning. His overall performance fell between the 2.7 and 3.3 year-old level, with relative strengths in the motor areas. (SE-4; Testimony of Dr. Monnin) Staff at Cardinal Cushing/St. Coletta reported that Student could be very intrusive, did not always accept limits and presented with serious safety issues regarding himself, and others. He lacked the ability to handle his own fears and anxiety. (SE-4)
· Dr. Monnin recommended that Student participate in a highly structured, supportive setting where staff could provide Student individualized attention and where the environment offered consistent routines for learning. (SE-4) The focus of the program should be on increasing Student’s capacity to be safe and learn to handle his fears as opposed to acting them out. Changes to his routine or new skills should be introduced very slowly to avoid loss of previously learned skills. Dr. Monnin stressed the need for Student to be in a very consistent setting across the board and expressed concern over Parent’s ability to follow through with interventions in the home that were closely coordinated with the school for implementation of consistent behavioral approaches. (SE-4; Testimony of Dr. Monnin) If a plan between school and home could not be worked out, Student could likely harm caregivers. Dr. Monnin raised Student’s need for a 24-hour residential program in light of Student’s intensive needs. (SE-4; Testimony of Dr. Monnin) He also expressed serious concerns regarding the numerous changes in placement as well as in medical assistance Student had up to the time of the evaluation. Consistency, according to him, was critical. (SE-4; Testimony of Dr. Monnin)
· The ABA evaluation was conducted by Dee Killion, on February 6, 2004. (SE-5) She conducted an observation of Student in the home, reviewed records and spoke with Student’s parent and his aunt. ( Id .) During the observation Student followed simple directions made by Parent and his aunt. He was warm toward the evaluator and maintained good eye contact. During the observation Student engaged in self-stimulatory behavior involving nipple play for several two to three minute intervals. (SE-5) Parent reported that Student hit her several times a day every day although he did not cause any serious harm. She was unaware of what triggered the behaviors. (SE-5) Ms. Killion explained the importance of keeping an ABA data collection sheet to record the frequency and severity of the aggressions and to understand what caused these aggressions. (SE-5) Parent reported that Student would benefit from 15 hour per week respite services. ( Id. )
· Based on her observation, review of the records and discussions with Parent, Ms. Killion opined that a home-based ABA program would not likely address the severity of Student’s needs. Furthermore, she did not believe that Parent was capable of engaging in the very intense data collection needed to address Student’s aggressive behaviors effectively. Therefore, she did not recommend implementation of ABA services in the home. (SE-5)
· On March 16, 2004, Patricia Larson, Executive Director of Cardinal Cushing Center (formerly St. Coletta) narrated some of the dangerous incidents involving Student that occurred at that school. These included: rubbing a staff person’s head obsessively and with great force, bolting, urinating and smearing feces in the timeout area, drinking water or urine from the toilet, and splashing water/urine from the toilet and onto the staff’s person’s face while holding the staff by the back or neck. (SE-7) Complicating matters even further was the lack of communication between Parent and the school and Parent’s denial that these behaviors were seen in the home. Student was described as highly dependent and as possessing very poor communication skills, factors which the staff felt contributed to Student’s aggressive behaviors. (SE-6) Student’s aggressive behaviors had also been displayed on the van as there were several incidents involving the driver and others in the van. At Cardinal Cushing/St. Coletta, Student had one fulltime and often times two staff people assigned to work with him to insure the safety of everyone in the room. Ms. Larson raised concerns regarding proper and consistent administration of Student’s medications in the home and Parent’s refusal to accept in-home services even when Parent herself requested them. (SE-7) Ms. Larsen feared that given the intensity of needs displayed by Student he required a different setting in order to provide him with an appropriate education and recommended that Student be placed in a residential school. (SE-7) Ms. Larsen opined that the consistency in delivery of service, level of communication between day and residential staff, elimination of a daily van ride from home to school, and school staff’s ability to communicate with doctors and stabilize medications would increase Student’s chances for educational success. (SE-7)
· By March 2004 Cardinal Cushing/St. Coletta’s staff’s efforts to use ABA techniques had been unsuccessful. (SE-8) Student seemed to be driven by internal stimuli appearing “unavailable” or inaccessible to be educated. Discrete trial sessions had been suspended because of the displayed aggressive behaviors, which posed a danger to the staff. (SE-8) It was clear that day placement at Cardinal Cushing/St. Coletta was no longer an appropriate option. (Testimony of Mr. Kelly)
· Student’s Team convened in Boston on March 18, 2004. (SE-1) The purpose of this meeting was to terminate Student from his placement at Cardinal Cushing/St. Coletta. (SE-8) Two IEPs were developed as a result of this meeting, one calling for an interim day program placement and another, proposed to place Student in a residential program. (SE-8) Since the interim program sought by Boston rejected Student, and since the recommendation of the Team was for residential placement, the IEP ultimately accepted by Parent was the latter. (SE-8)
· The IEP states that Student’s cognitive delays, sensory processing issues, behavioral and receptive and expressive language difficulties make it difficult for him to progress effectively. (SE-1) He requires a learning environment that provides a consistent routine, visual cues, private praise, one to one, use of manipulatives, augmented communication, visually based materials, and constant repetition and review of previously presented skills and materials. (SE-1) The goals in this IEP address his social emotional, language, vocational skills as well as his motor abilities. The service delivery grid calls for all of his educational services to be provided as direct services outside the general education environment. Specifically, the grid provides: 40 minutes a day five days per week behavioral social emotional services; 60 minutes per day five days per week communication services; pre-vocational services 60 minutes a day five days per week; 40 minutes per day five days per week academic remediation services; 60 minutes per day two days per week adaptive physical education all in a private school setting. (SE-1) This IEP, which covers the period from March 2004 to March 2005, calls for residential placement of Student “for no more than three months” in the Amego program with an extended school year program.1 Transportation is to be offered door to door with a monitor. (SE-1) On or about April 16, 2004, Parent accepted this IEP’s residential program and placement under an extended evaluation for no more than three months. (SE-2) At the time Parent was represented by Crystal Chow of the Disability Law Center. (SE-2)
· During the week of March 29 through April 2, 2004, Student exhibited the following maladaptive behaviors in school:
1. Hopping on one foot.
2. Raising shirt and rubbing chest/nipples against urinal, mats.
3. Attempts to raise shirt and stimulate against a staff member.
4. Grabbing a female staff’s crotch area.
5. Picking at gloves on staff’s hand in the bathroom.
6. Blowing mucus from his nose into his fingers and attempting to eat it.
7. Putting hand in urinal water or sink water and attempt to drink.
8. Stepping back from the urinal to splatter urine at the rim of the urinal or on the floor. (This was attempted with a small child.)
9. In time-out, dropping his pants and urinating, with attempts to urinate on staff.
10. Touching others’ faces and forcefully pushing [their faces] sideways.
11. Touching tops of others’ heads and forcefully pushing down on heads.
12. Grabbing others’ thumb/fingers and picking at the nail or attempting to bend thumb.
13. Hitting at staff with closed fist.
14. Attempting to bite staff.
15. Attempting to purse his lips to staff’s faces.
16. Attempting to force his head to staff’s chest and to head butt staff’s chin.
17. Grabbing at staff’s throat.
18. Grabbing the back of staff’s necks.
19. Periods of staring off, as opposed to staring and fixating on something.
20. Periods of laughter, looking off above him.
21. Hyper-extending himself backwards.
22. Touching floor with his palm.
23. Mouthing the wall/window/mirror. (SE-10)
Most of the behaviors described above occurred when staff placed demands on or interacted with Student. (SE-10) The more Student’s rituals were disrupted by staff, the more aggressive and forceful his responses were. He punched, kicked, scratched and choked staff,. (Testimony of Mr. Kelly) In an attempt to decrease the amount of aggression by Student, staff isolated him, reduced the demands placed on him, or increased the activities preferred by him. (SE-10) Of great concern was that attempts by staff to deflect Student’s touching frequently resulted in Student’s more forceful attempt to pressure or touch staff. (SE-10) Two staff persons and the bus monitor required medical attention, two of them during the same week as a result of Student’s aggressions. (SE-10; SE-13) SE-14 details at least 32 instances of aggressions by Student to the Cardinal Cushing/St. Coletta staff which occurred between February 2002 and October 9, 2003 including cutting his hands and fingers with scissors and playing with the blood, poking the eye of a staff member, jerking the neck of the staff with an open palm, putting his hands around the neck of a staff member, undoing his pants and exposing himself, attempting to grab at buttocks and groin areas of staff, and pushing staff against the wall by grabbing at the neck. (SE-14) Additionally, Student’s difficulties with transitions escalated over time. (Testimony of Mr. Kelly)
· In a letter dated March 29, 2004, Patricia Larson discussed the events that led to the recommendation that Student be placed in a residential program. (SE-8) This letter confirmed that due to the dangerous nature of Student’s behavior toward staff and other students, he would be terminated from the Cardinal Cushing/St. Coletta by April 16, 2004. (SE-8) The staff opined that Student possessed a lot of skills and was capable of more than he was demonstrating at Cardinal Cushing/St. Coletta, but they were not breaking through to him. (Testimony of Mr. Kelly)
· Lisa J. Martiesian, Program Director for Boston’s Out of District Placements, testified that Student was terminated from Cardinal Cushing/St. Coletta in April 2004, the Friday before school vacation. The following week, Boston offered Student home tutoring and interim services pending acceptance of Student in a new program. Parent however, rejected these services and Student remained home without services until he was admitted to and began attending Amego on August 2, 2004. (SE-3; Testimony of Ms. Martiesian)
· Ms. Lisa Ingram, Director of Social Services at Amego, testified that Amego is a non-profit educational program in Massachusetts. (Testimony of Ms. Ingram) There are 17 students in the day portion of the program (excluding Student) and 80 % of them present with autism and pervasive developmental disorder issues. One student has Rhett’s Syndrome. The program’s staffing ratio is one staff to two students during the day portion and four staff to seven students in the residential portion of the program. There is also a program coordinator, a speech and language pathologist, adaptive physical education staff, a registered nurse all on site, and an assistant coordinator in the residences. Physical therapy and occupational therapy is contracted out through a separate agency. (Testimony of Ms. Ingram) Also, Amego employs two certified special education teachers, a lifetime certified teacher, and two certified physical education teachers. The educational program follows the Massachusetts Curriculum Frameworks adapted to meet the needs of its student population. (Testimony of Ms. Worth) The staff undergoes a two-week program orientation process and must complete 20 hours of physical intervention training. The staff is trained and the program licensed by the Department of Public Health regarding administration of medications. (Testimony of Ms. Ingram)
· Amego’s three residences are located in Mansfield, Norton and Attleboro. Student was one of seven students assigned to the Norton home. This residence is located approximately twenty miles away from the school building. (Testimony of Ms. Ingram)
· Ms. Ingram first observed Student in the home on May 30, 2004 when Boston was attempting to offer Student services in the home. (Testimony of Ms. Ingram) Based on a review of the record, a discussion with Parent and her observation, Student was found to be appropriate to attend Amego. ( Id. )
· Regarding administration of medications, Amego’s staff coordinates with students’ families to go with them to the doctors’ appointments. The program at Amego is small and very family oriented but it is essential that the staff maintains contact with physicians and families because decisions regarding medications must be made day to day. (Testimony of Ms. Ingram)
· Communication between Amego and Student’s Parent was difficult from the onset. (Testimony of Ms. Ingram) Parent wanted to retain a great deal of control, insisted on ordering the medications herself, would not allow direct communication between the staff and Student’s doctors, would not keep the staff abreast of who Student’s doctor was at different times and did not allow Amego staff to be present during medical appointments. (Testimony of Ms. Ingram) Amego staff attempted to establish and maintain good communication with Parent, however, by the end of the three month evaluation period, the communication had deteriorated significantly. (Testimony of Ms. Ingram)
· Ms. Lisa Worth, Director of Student Services at Amego, related an incident regarding Student’s physical condition and possible impact of the medications. She testified that she had become concerned that Student experienced a 10-pound weight loss in a three-month period without any signs of illness. She was worried about what impact the weight loss may have on Student’s medications. (Testimony of Ms. Worth) She had noticed that Student, who had a lot of energy, appeared lethargic, was observed drooling and engaging in lots of self-stimulation. Student was seen by the school nurse who suggested that the Depakote dosage may be too high given the weight loss and suggested that Student be seen by his physician. Parent was very resistant to give staff Student’s doctor’s name and was upset that she had not been informed in the morning when the issue arose in school. She asked that Student be taken to the emergency room but had not arrived in the hospital to register Student when Ms. Worth and Student arrived. Student was eventually seen by Dr. Charles Henry of LADDERS and Dr. Bowman but Parent did not allow Ms. Worth in during the examination nor did she allow Ms. Worth to speak with the physicians. (Testimony of Ms. Worth)
· A Behavior report sheet from Amego, dated October 24, 2004, reports that Student engaged in a variety of inappropriate behaviors throughout the day and across all settings. (SE-3) The purpose of the report was to establish a behavioral baseline. (Testimony of Ms. Worth) On average, during a month he engaged in aggressions (ie., hair pulling, pinching, biting, scratching, hitting, kicking and head butting) 24.5 times; property destruction (breaking or attempting to break an item) 2.5 times; bolting 41.5 times; non-compliance (failing to respond within 30 seconds to a staff’s directive) 227 times; water play (ie., filling the tub or sink with water and playing in it, running water excessively when he washes his hands, not drinking out of the water fountain appropriately, rinsing dishes or bathing) 53 times; inappropriate urinal/toilet play (ie., splashing water in the toilet or urinal, dunking his head in the urinal or toilet, drinking from the urinal or toilet) 13 times; self-stimulatory/sensory behaviors (ie., any instances of touching the floor, mouthing objects, lifting his shirt and rubbing his nipples, pressing his chest against cold objects, sniffing others, tapping surfaces, hopping on one foot) 704 times. (SE-3) Sheila Wilkins of Amego attempted to visit the home to establish a behavioral baseline in the home and increase recreational and vision activities in the home as well as assist Parent with implementation of the behavioral plan in the home. (Testimony of Ms. Worth) Parent did not open the door for Ms. Wilkins and later stated that she (Parent) did not want behavioral baseline data obtained for Student. (Testimony of Ms. Worth)
· At Amego, students wake up in the residence at 6:00 a.m. and have until 8:00 a.m. to perform their morning routines. (Testimony of Ms. Worth) Student’s day program runs from 9:00 a.m. to 3:00 p.m. (Testimony of Ms. Worth) The educational program runs from 9:00 a.m. to 11:00 a.m. and is followed by a 45 minute lunch, after which students are taught basic hygiene skills, adaptive physical education and the vocational piece between 12:30 p.m. and 2:00 p.m. Leisure time starts at 2:00 p.m. followed by recreational activities and transition to the residences by 3:50 p.m. (Testimony of Ms. Worth) Between 4:00 p.m. and 6:30 p.m. students have a snack, engage in meal preparation, personal hygiene and other domestic tasks. At 6:30 p.m. some of the students go out until 8:00 p.m. for recreational activities. Medication, if appropriate, is dispensed at 8:00 p.m. after which students engage in their hygiene routines, relax and prepare for bed. (Testimony of Ms. Worth) Student’s specific schedule is broken down into fifteen-minute increments. (Testimony of Ms. Worth)
· In both the school and the residential settings, staff at Amego worked on several self-help and domestic skills such as increasing Student’s ability to complete basic hygiene routines including showering, shampooing, tooth brushing, and washing which Student could perform with between 50% and 62% accuracy. (SE-3) He was also able to load the dishwasher, straighten his bed, make his bed and wash the dinning table. Educationally, he worked on the goals outlined in his IEP as follow:
Communication : [Student] is able to schedule the events of his school day with 70% independence. He can make choices for his leisure activities with 73% independence with a choice board. [Student] is able to respond in morning circle with 27% accuracy and independence.
Math : [Student] is able to complete a pattern with 41% independence and sort manipulatives of 2 different colors with 74% independence. [Student] is able to identify a penny with 3% accuracy, a nickel with 42%, a dime with 54%, a quarter with 64% accuracy and a dollar bill with 22% accuracy.
Language : [Student] is able to identify the letter “R” with 68% independence, a circle with 63% independence.
Vocational : [Student] is able to stay on task for 8 minutes. [Student] can vacuum a defined area with 78% independence.
Adaptive Physical Education : [Student] participates in gym class 2-3 times per week for 30-minute sessions each. [Student] is also provided with other opportunities during his school day for additional exercise such as walking and small group gross motor activities. (SE-3)
· Following Student’s three-month evaluation period at Amego, Amego was willing to keep student in its program and work with the Team to add any services that the Team deemed necessary. (Testimony of Ms. Ingram) By then Student knew his routines both during the day and in the evening and followed them. ( Id. ) He engaged in some inappropriate behaviors but the frequency and intensity of the same decreased and he was easily re-directed. He learned his routines quickly and was able to implement them. (Testimony of Ms. Worth) According to Ms. Ingram, all of the services in Student’s IEP were offered and would continue to be provided if Student were at Amego. (Testimony of Ms. Ingram) According to the staff at Amego, Student required and responded well to a great deal of structure with a strong behavioral component, with trained staff that can handle him. (Testimony of Ms. Worth)
· Student’s Team convened on October 25, 2004, to discuss the findings regarding Student’s three-month evaluation period at Amego. (Testimony of Ms. Martiesian) The reports made by Ms. Lisa Worth were very positive and described Student as an active participant in both the day and evening portions of the program. When comparing his performance to previous reports by Cardinal Cushing staff, it seemed as though Ms. Worth was talking about a different child. (Testimony of Ms. Martiesian) There were still issues consistent with his disability that needed to be addressed, but the staff at Amego was able to handle Student and provide a structured environment that allowed him to progress effectively. (Testimony of Ms. Martiesian, Ms. Worth) Student was going home on weekends and the arrangement seemed to be working for him. (Testimony of Ms. Martiesian) According to Ms. Ingram “Student was thriving in the 24-hour residential model”. (Testimony of Ms. Ingram) Parent however, did not believe that her son was making progress and notified the Team that October 25, 2004 would be Student’s last day at Amego. Parent became agitated and the Team was unable to complete the discussions regarding their recommendations for continued placement of Student at Amego. (Testimony of Ms. Martiesian)
· Boston filed a Chapter 119 §51A report alleging educational neglect due to Parent’s refusal to allow Student to continue in school. (Testimony of Ms. Martiesian) This case remains open. ( Id. )
· Student’s Team reconvened in Boston on November 16, 2004. (SE-1) At that time all of the Team members except Parent continued to recommend residential placement of Student, and specifically supported the Amego program, under the IEP previously developed in March 2004, coverering the period through March 2005. (SE-1; Testimony of Ms. Martiesian, Ms. Worth)
CONCLUSIONS OF LAW:
There is no dispute between the parties that Student is an individual entitled to the protections of the IDEA2 and the Massachusetts special education law3 . He carries a diagnosis of autism spectrum disorder, has very low cognitive abilities and presents symptoms consistent with obsessive/compulsive behaviors, not typical of Students with Aspergers. (SE-4; Testimony of Dr. Monnin, Ms. Worth) Student’s aggressive behaviors are quite severe and given his height (5’11”) and weight (over 200 pounds), pose a danger to those around him as well as to himself. There is no question that Student’s needs are severe and that his disabilities impact all areas of his development.
Therefore, Student is entitled to receive a FAPE, and his individualized education program must be designed to meet his unique needs so as to enable him to make meaningful and effective progress in the least restrictive environment appropriate.4 603 CMR 28.110.0; 603 CMR 28.118.0. See In Re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000); In Re: Gill-Montague Public Schools District, 8 MSER 245 (SEA MA 2002); In Re: Medford Public Schools, 8 MSER 329 (SEA MA 2002).
The question before me is whether the IEP proposed by Boston developed at the March 18, 2004 Team meeting (SE-1), which offers Student a residential program, specifically the placement at Amego identified in November 2004, provide Student with a FAPE in the least restrictive environment. Under 603 CMR 28.06(f) a student’s IEP may call for residential placement only if the severity of the student’s needs is such that even with the use of supplementary aids and services, s/he cannot make educational progress in a less restrictive environment. In Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001) and in Abrahamson v. Hershman , 701 F.2 nd 223, 228 (1 st Cir. 1983), the First Circuit Court of Appeals explained that the appropriate standard to ascertain whether a residential placement should be ordered for a student is “whether the educational benefits to which the student is entitled can be obtained in a day program alone, or conversely whether these educational benefits can only be provided through round-the-clock special education (and /or related) services, thus necessitating placement in a residential facility.” In Re: Lunenburg Public Schools and The Department of Mental Health , BSEA # 05-0799, December 3, 2004. Upon careful consideration of the evidence before me, and in consideration of the applicable law and case law, I find that the severity of Student’s needs in the case at bar requires a 24-hour residential placement as appropriately proposed by Boston under SE-1, and that this is the least restrictive placement appropriate for him. David D. v. Dartmouth School Committee , 775 f. 2d 411 (1 st Cir. 1983) Furthermore, the evidence is convincing that the Amego program is the appropriate placement for provision of Student’s special education services. In reaching this decision I incorporate and rely on the facts delineated in the Findings of Fact section of this decision.
Over the past several years Boston has attempted eight day placements at five different locations in order to address Student’s needs. (SE-4; Testimony of Ms. Martiesian) All of them have proven to be insufficient to meet his needs. Moreover, the credible evidence presented by Boston shows that Student’s aggressive behavioral issues became more and more severe during the 2003-2004 school year both at home and in school. (Testimony of Mr. Kelly, Ms. Martiesian, Ms. Ingram, Dr. Monin) The recitation of aggressive behaviors enumerated in the Findings of Facts section of this decision is overwhelming and alarming such as using the weight of his body, and one or both hands to get to or to get by a staff person, engaging in a series of compulsive or ritualistic behaviors such as tapping or touching different surfaces, touching the aides on their face, neck or heads, mouthing or licking objects, sniffing staff, hopping, and engaging in self-stimulatory behaviors such as rubbing his chest and nipple play or tapping his teeth, rubbing a staff person’s head obsessively and with great force, bolting, urinating and smearing feces in the timeout area, drinking water or urine from the toilet, splashing water/urine from the toilet and onto the staff’s person’s face while holding the staff by the back or neck, kicking, and hitting staff with a closed fist. (SE-6; SE-7; SE-10; SE-14) Interruption of the behaviors resulted in Student becoming aggressive with the staff and using his body weight to execute and complete his compulsion. (SE-6) Additionally, Student’s cognitive abilities are between a 2.5 and a 3-year old age equivalence, he possesses extremely poor communication skills and is very dependent on others, all factors which are felt to contribute to Student’s aggressive behavior. (SE-4; SE-6; Testimony of Dr. Monnin) Student’s behaviors seem to be driven by internal stimuli at times appearing “unavailable” to be educated. (SE-8; Testimony of Mr. Kelly) Most concerning was the fact that once the behavior was initiated, it could be interrupted but not stopped, as for example by removing Student from the situation, but later on Student would return and complete the behavior as if in an almost obsessive or compulsive manner. (Testimony of Mr. Kelly)
It is clear that by April 2004, Student’s behaviors had escalated to the point where they were dangerous to staff and classmates as well as to Student himself, and he was not responding to the behavioral interventions. (SE-7; SE-8; Testimony of Mr. Kelly) Parent reported similar behaviors in the home. (Testimony of Mr. Kelly, Dr. Monnin, Ms. Martiesian) Multiple evaluators and staff raised concerns over their own safety and that of family members, especially as Student continued to grow and became stronger. (SE-4) Dr. Leon Monning, described this five-foot-eleven inches tall, 200 pound plus youngster as “formidable.” (SE-4)
To aggravate the situation, there were serious issues relating to communication and cooperation with Parent. Parent resisted making medical information available to school personnel as well as refused to provide the name of the doctors who treated Student. She resisted sharing relevant information from outside sources with Cardinal Cushing/St. Coletta’s, Boston’s and later Amego’s staff. Parent refused to avail herself of much needed services in the home, prevented Student from being serviced and prevented information on him from being collected in the home. She also kept Student out of school. Parent has been resistant to provision of services in the home even when providers were convinced that they would be helpful to Student. (Testimony of Ms. Worth, Ms. Martiesian, Mr. Kelly, Ms. Ingram) There was also lack of consistency in Student’s medical care. All of these contributed to the deterioration in Student’s behavior and caused Boston and other service providers to encounter great difficulty in trying to provide Student with the 24-hour structure and consistency he required so as to make effective progress. It was the opinion and testimony of Ms. Worth, Ms. Martiesian, and Mr. Kelly that while Parent clearly loves and is very concerned about Student, she is unable to advocate for him effectively and appropriately and is not capable of making appropriate decisions on her son’s behalf. For example, she did not support Student’s participation in gym, and did not want him jumping on the trampoline because she believed that such activity would increase his obsessive/compulsive nature. (Testimony of Ms. Worth) However, no negative impact in participating in adaptive physical education was observed by the Amego staff. ( Id. )
The unanimous credible opinion of everyone who testified was that Student required residential placement, as the home environment is insufficient to maintain the level of care required by Student in order to make a day program work for him. (Testimony of Ms. Martiesian, Mr. Kelly, Mr. Monnin, Ms. Ingram, Ms. Worth) It must be noted that the spring of 2004 was not the first time that residential placement was discussed for Student. Notes from Marsha Breiteneicher indicate that Boston was willing to fund residential placement in April 2002, and that a letter from Student’s psychiatrist read at a Team meeting on September 20, 2002, advocated for residential placement. (SE-9) Precious time has been wasted in trying to accommodate Parent’s preference for a day program while Student’s behavior screams for the structure and consistency that can only be provided through a 24-hour residential placement.
Furthermore, the evidence supports a finding that Amego is the appropriate residential placement for Student at the present time. (Testimony of Ms. Martiesian, Ms. Worth, Ms. Ingram) Ms. Worth’s reports of Student’s progress during the 3-month evaluation period at Amego are clear evidence of an educational program that offered the level of structure and consistency in which Student can make effective progress. Ms. Martiesian credibly testified that listening to those reports during the Team meeting convened in the Fall of 2004, was like listening to someone speak about a different child. Student had learned his routines, could follow them and was evidencing a reduction in the severity and amount of aggressive behaviors in which he engaged. He was an active participant in both the day and evening portions of this residential placement. (Testimony of Ms. Ingram, Ms. Worth) The staff at Amego opined that Student was appropriate for their program and was able to handle him and educate him. ( Id. ) Everyone except for Parent supported this placement.
It is clear that Parent does not trust any of the school systems that have been involved with Student. Her reaction was described as seemingly paranoid or accusatory toward school personnel. (Testimony of Mr. Kelly, Ms. Ingram, Ms Worth) According to Mr. Kelly, a Chapter 119 §51A report was filed in April 2004 with the Department of Social Services (hereinafter, “DSS”) for educational neglect. (Testimony of Mr. Kelly) Ms. Martiesian testified that the report was substantiated but that the matter was closed when DSS became aware that Boston was recommending a residential placement for Student. (Testimony of Ms. Martiesian) Ms. Martiesian testified that another Chapter 119 §51A was filed in the Fall of 2004 also alleging educational neglect and according to her the case remains open. (Id.) The general impression of all who worked with Student was that Parent is not capable of making the right decisions for Student and she interferes with the providers’ ability to service him. (Testimony of Lisa Worth, Ms. Martiesian) Moreover, she has prevented Student from accessing the level of consistency and structure required to address his needs. Her refusal to allow Student to attend Amego constitutes a denial of FAPE to the Student. She does not seem to understand the strategies and methodologies that have been recommended and have proven successful for Student. As a result, according to Ms. Worth, Parent is not able to advocate effectively and appropriately on Student’s behalf. Meanwhile Student continues to grow and the window of opportunity to service and educate him is closing. Therefore, it is imperative that if Student is going to have a real educational opportunity, the educational decision-making cannot be left up to the Parent at this time. Parent is however, a central figure in this young man’s life and while it is important that she continues to be involved with Student, the responsibility to decide educationally for him cannot be left with her. Therefore, Boston shall seek appointment of a person to have educational decision-making power over Student, such as a guardian-ad-litem, an educational advocate or an educational surrogate parent, through a forum with pertinent jurisdiction.
Lastly, Boston should attempt to work with Parent and provide her with assistance and training regarding behavioral interventions in the home that are consistent with those used in school, as well as any other service deemed appropriate.
Order:
1. Boston shall offer Student residential placement at Amego consistent with the IEP (SE-1)
2. Boston shall seek appointment of a person who has educational decision-making power for Student through a forum with pertinent jurisdiction.
3. Boston shall provide Parent with training and assistance regarding behavioral interventions in the home.
So Ordered by the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: 12/17/2004
1
While the IEP administrative data sheet in this IEP identifies the Amego school as the assigned school (SE-1), the actual placement sheet does not identify Amego as the location for Student’s placement (SE-2). Under different circumstances this could present a problem for Boston.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
See King Philip Regional School District , BSEA #04-2729, 11/23/04, footnote on “ In re: Arlington, 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also 603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”; 603 CMR 28.02(18) (“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual potential of the child, and the learning standards et forth in the Massachusetts Curriculum Frameworks ad the curriculum of the district… .”)