COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Ross1 v Hampden-Wilbraham Regional School District
BSEA# 08-0880
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on January 19, 2008 (partial day); March 3, 4, 10 & 12, 2008; April 16 & 29, 2008; May 30, 2008 and June 23, 2008. A final day of rebuttal hearing scheduled for July 30, 2008 was cancelled by Parents. The record remained open for receipt of written closing arguments until August 25, 2008.
Those in attendance for all or part of the hearing were:
Mother
Aunt
Aunt
Russell Maguire Behavior Analyst
Amy DiDonna Attorney for Parents/Student
Thomas Philpott Director of Special Education, Hampden-Wilbraham Regional School District (HW)
Debra Tobias Special Education Coordinator, HW
Deborah Thompson Principal, Green Meadow School, HW
Allyson Thomas Consultant, The May Institute
Rebecca Hildreth Special Education Teacher, HW
Rebecca Orr 3 rd Grade Teacher, HW
Dianne White School Psychologist, HW
Susan Jones Physical Therapist, HW
Allison Spanos-Gearing Occupational Therapist, HW
Susan Ayers Speech-Language Pathologist, HW
Elaine DeGray Inclusion Paraprofessional, HW
Peter Smith Attorney for School
Richard Connolly Director, BSEA
Brenda Ginisi Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents Exhibits labeled P-1 through P-60; School Exhibits labeled S-1 through S-96; and approximately 32 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Ross was a 10 year old boy during the period of time this BSEA process took place, who resided with his family in Willbraham, MA during all periods of time relative to this dispute.2 Ross is diagnosed with autism. Since the age of 3 Ross has functioned under an Individual Education Plan (IEP). Ross resided in Natick prior to 2002 when he and his family moved to Wilbraham. Ross attended school under the auspices of the Hamden-Wilbraham Regional School District (HW) from 2002 to June 2007. Except for a brief period in the COPA Collaborative, Ross always attended public schools within HW until June 2007. In July 2007 Parents unilaterally placed Ross at the Realizing Children’s Strengths Learning Center (RCS) for their 2007 summer program and also for RCS’ 2007-2008 school year program. (See testimony, Mother; Tobias; Philpott.)
Ross has been extensively evaluated. (See P-21, 24; S-1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 66.) The most recent evaluations were performed by HW in January-March 2007 (P-21, 24; S-7, 8, 9, 10, 11). Ross was also independently evaluated by Dr. Rebecca (Ettelson) Anderson on August 27, 2007 (S-66).
Ross’ IEPs and Amendments thereto from HW extend from February 2002 through October 2009 (P-35, 46; S-12, 13, 14, 15, 16, 17, 18, 81, 95). With the minor exception of a brief partial rejection regarding clarification of time a certain service provider was to spend with Ross (S-16, which was later accepted), all of HW’s IEPs for Ross through March 2007 were accepted by Parents. (See testimony, Mother; Tobias; Philpott; P-35, 46; S-12, 13, 14, 15, 16, 17,18.)
On February 16, 2007 HW sent Parents a notice of team meeting scheduled for March 21, 2007 to discuss the recently completed HW evaluations of Ross and to promulgate a new IEP for him (S-68). Parents had received all of the evaluations and had spoken with Dr. White (who had performed the psychoeducation evaluation) prior to the scheduled team meeting (testimony, Mother; White). Mother cancelled this March 21, 2007 team meeting approximately 10 minutes before it was scheduled to start and all team members except Parents were already assembled (testimony, Mother; Tobias). Another notice of team meeting was sent to Parents on May 7, 2007 scheduling the team meeting for May 23, 2007 (S-68). Dr. Tobias, HW’s special education coordinator/team chairperson, knew Parents received the team meeting notice because she had a conversation with Mother prior to the May 23, 2007 team meeting date, urging Mother to attend the meeting and Mother did not say that she wanted to cancel and/or reschedule the team meeting on May 23, 2007. All the evaluators/service providers for Ross were assembled for the team meeting but Parents did not show up nor was their any Parental cancellation of the meeting. The team meeting did not go forward (testimony, Tobias).3
On August 3, 2007 Parents’ attorney filed a hearing request before the BSEA (P-5) and a hearing date was scheduled for September 7, 2007. On August 23, 2007 Parents’ attorney filed a motion to compel a resolution meeting. On August 29, 2007 a resolution meeting was scheduled for August 31, 2007. Parents did not attend the resolution meeting so it did not take place (testimony, Tobias; Philpott). Also on August 29, 2007 HW scheduled a team meeting for September 17, 2007 again to go over the school’s evaluations, consider Dr. Anderson’s independent evaluation which had now been completed, and to develop a new IEP for Ross (S-68; testimony, Tobias). On September 12, 2007 HW’s Student Service Office received a phone call from Mother stating “do not put together an appointment for [Ross]”. Dr. Tobias called Mother and they spoke, with Dr. Tobias encouraging Mother to attend the team meeting and confirming that Dr. Anderson would be attending to discuss the independent evaluation. Mother did not state that she would not attend. On September 17, 2007 all team members, including Dr. Anderson were present. Parents did not attend and the team meeting did not go forward (testimony, Tobias). Ross’ team meeting finally took place over two sessions on October 11 and 24, 2007 in which all parties, evaluators, service providers, and attorneys for both parties were present and an IEP was developed for Ross which covered October 2007 through October 2008 (S-81). This IEP was rejected by Parents’ attorney on January 9, 2008 (P-53). At the team meeting Mother consented to a sensory/occupational observation of Ross at RCS by HW personnel which took place on December 11, 2007; a team meeting took place on January 25, 2008; and a proposed IEP Amendment was promulgated with additional sensory goals to be attached to the October 2007 to October 2008 IEP. (See S-95.)
Meanwhile, at the BSEA, postponements had been requested, a pre-hearing conference call (PHCC) took place on September 4, 2007 with a pre-hearing conference (PHC) scheduled for September 7, 2007 and hearing dates of September 14, 17 and 18, 2007. Parents’ attorney requested a postponement. A PHCC was scheduled for September 10, 2007 at which time parties agreed to a PHC for September 18, 2007 and hearing dates of October 2-3-4, 2007. At the PHC on September 18, 2007 the parties jointly and in writing requested postponement of the October dates to November 6-7-8, 2007, with a discovery and motion schedule and a PHC for November 2, 2007. On November 2, 2007 HW’s attorney requested a postponement of the November hearing dates, which was assented to by Parents’ attorney. The parties also agreed that November 7, 2007 would be used as a PHC/Motions session. The November 7, 2007 PHC/Motions session took place with rulings issued and hearing dates scheduled for January 9-10-16-17, 2008. On December 27 2008 Parents’ attorney requested a postponement of the hearing, a PHCC took place on that date and the hearing was re-scheduled for January 16-17 and February 7 and 14, 2008. On January 16, 2008 the hearing began and HW’s attorney presented a motion in limine regarding discovery issues between the parties that had not previously been shared with the Hearing Officer. The case began with Parents’ opening statement and the direct testimony of Dr. Maguire when HW’s attorney asserted his motion in limine. Because discovery had not been fully complied with by both parties, the parties entered into an agreement regarding discovery and scheduling (see transcript 1/16/08) with hearing dates scheduled for February 7 and 14 and March 3, 4 and 10, 2008. On February 5, 2008 Parents’ attorney requested a postponement of the February 7 and 14, 2008 hearing dates and to begin the hearing on March 3, 3008. On that same date (February 5) the Hearing Officer conducted a PHCC with the attorneys and hearing dates were scheduled for March 3, 4, 10 and 12, 2008. The remainder of the hearing then took place over the 8 dates specified above.4
ESSENTIAL ISSUES IN DISPUTE
1. Does/did HW’s proposed IEP for Ross from October 2007 to October 2008 appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. If not does/did Parents’ unilateral placement of Ross at RCS appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment?
3. What liability, if any, does HW have for the time period that no IEP was proposed for Ross from March 2007 until October 2007?
4. Is HW responsible to provide compensatory services/reimbursement for Ross back to the summer of 2005?
STATEMENT OF POSITIONS
Parents’ position is that HW’s proposed IEP for Ross from October 2007 to October 2008 is/was inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. Parents contend that their unilateral placement of Ross at RCS for the 2007 summer and the 2007-2008 school year is/was appropriate to provide him with FAPE in the least restrictive educational environment. Parents contend that HW is also liable for the time period from March 2007 when Ross’ last accepted HW IEP expired until the new IEP was promulgated in October 2007. Finally, Parents contend that HW is responsible for providing compensatory services/reimbursement for services privately provided to Ross by Parents during the 2005, 2006 and 2007 summers as well as during the 2005-2006 and 2006-2007 school years.
HW’s position is that its proposed IEP for Ross from October 2007 to October 2008 is/was appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. HW contends that Parents’ unilateral placement of Ross at RCS for the 2007 summer and the 2007-2008 school year was inappropriate and overly restrictive to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. HW contends that it is not liable for the time period between the expiration of Ross’ last accepted IEP in March 2007 and the promulgation of a new IEP in October 2007 because of Parents’ actions in delaying the team process. Finally HW contends that it is not responsible for providing Parents compensatory services/reimbursement for services provided privately by Parents from the summer of 2005 onward.
PROFILE OF STUDENT
In early 2007 HW performed three year updated evaluations/assessments of Ross. Ross received a speech and language evaluation (S-7), a physical therapy evaluation (S-8), a psychoeducational evaluation (S-9), an occupational therapy evaluation (S-10) and an evaluation based upon the Assessment of Basic Language and Learning Skills (ABBLS) (S-11). Compared to his prior evaluations administered by HW in October-November 2003 (S-1, 2, 3, 4, 5), Ross had made progress in all of the areas evaluated. For example in 2003 Ross, then 6 years, 3 months old, was unable to even be tested on standardized cognitive instruments such as the Wechster Intelligence Scale for Children-4 th edition (WISC-4), the Test of Non-Verbal Intelligence or even the Young Children’s Achievement Test (YCAT). Based upon testing observations, Ross’ cognitive scores were deemed to be generally solid to the 31-33 month range i.e., 2 ½ to 2 ¾ years old (S-2). In March 2007 Ross, then 9 years 6 months old, was tested by HW’s Dr. White who was able to utilize parts of the WISC-4 with Ross, who tested very low in the area of verbal comprehension (Index Score 45) but tested low average in the area of perceptual reasoning (Index Score 88). On the Wechster Individual Achievement Test-2 nd edition (WIAT-2) Ross’ ability to read words was below average and math was also low but he was able to perform simple computations (S-9). Similarly, in the area of speech and language in 2003 Ross’ age equivalent was 13 months and he was unable to be tested in standardized speech-language instruments. In the summary/recommendations it was noted (S-3):
Although he is making small steady gains in his skills, he continues to present with significant delays in his communications.
Conversely, in March 2007 Ross was able to be assessed on standardized speech language instruments such as the Peabody Picture Vocabulary Test-3 rd edition (PPVT-3) and the Expressive One Word Vocabulary Test (EOWVT) testing at a age equivalent score of 6 years old. In the speech language recommendation section in 2007 (S-7) it was noted:
[Ross] continues to progress in his speech and language development. Based upon this battery of assessments he has a wealth of skills.
In his physical therapy evaluation Ross improved from “delays with gross motor skills due to decreased ability to follow directions, decreased ability to imitate and plan more complex motor skills” and a recommendation for physical therapy services in 2003 (S-1) to a summary/recommendations in January 2007 (S-8) as follows:
Summary/Recommendations: At this time [Ross] is accessing the PE curriculum as well as gross motor activities at recess with supervision and only occasional modifications. He is participating fully in every PE class. [Ross] currently has the ability to meet the requirements of the PE class and is able access the playground equipment. At this time, no direct physical therapy services are recommended. Consultation will be provided as needed to assist with any PE activities that require modification.
In his 2003 occupational therapy evaluation (S-4) on the Beery Visual Motor Integration Test (BVMIT) Ross was able to function at an age appropriate level only by copying and continued occupational therapy services were recommended. In February 2007 based upon the BVMIT and the Motor Free Visual Perception Test (MFVPT) Ross was functioning solidly within the average range for visual motor integration skills (53%) and in the above average range of functioning for visual perceptional skills (81%). In fact, he no longer met the criteria for direct occupational therapy services (S-10)
Finally, Ross demonstrated distinct improvement from the 2003 ABLLS (administered by HW’s consultant from the May Institute, “May”, Ms. Fahmy, See S-6) to the 2007 ABLLS (administered by HW’s consultant from May, Ms. Thomas.) (See S-11.)
In her independent evaluation of Ross in late August 2007, Certified School Psychologist/Licensed Psychologist Dr. Rebecca (Ettelson) Anderson was able to administer the standardized Test of Non-Verbal Intelligence – 3 rd edition (TONI -3). Ross, then 10 years old 1 month old achieved an age equivalent score of 8 years 3 months and his quotient score of 91 placed him within the average range of ability, indicating that Ross has adequate non-verbal reasoning skills and can solve problems that do not require language processing. On the WIAT-2 Ross achieved reading and spelling scores at the 1 st grade level and math computational skills at a 2 nd grade level. (See S-66 for complete independent evaluation.)
(See also, testimony, White; Ayers; Spanos-Gearing; Jones; Hildreth; Orr; Thomas.)
PARENTS’ PROPOSED PROGRAM
Parents propose that RCS is/was the appropriate educational placement for Ross. RCS is a Massachusetts Department of Elementary and Secondary Education (MDESE) approved private day school program located in Natick, MA. RCS provides behavioral and educational services for children with autism spectrum disorder and other developmental disabilities. RCS services students ages 6-14. Applied Behavioral Analysis (ABA) is the major treatment modality employed in all RCS programs. The verbal behavior model for teaching communications and language skills is also utilized, as is incidental teaching between intensive teaching sessions to promote generalization of skills. Programs are individualized to fit each student’s particular needs and learning style. Data is collected in all areas. Students receive 1:1 or 1:2 instruction within the classroom. Teachers have at least a bachelor’s degree and are referred to as behavior therapists. Supervisors are masters level special education teachers and/or board certified behavior analysts (BCBA). Speech-language therapists and occupational therapists consult to teachers and supervisors but behavior therapists/teachers carry out speech-language therapy and occupational therapy recommendations. Curriculum in focused on the development of language, academics, self-help, play, and social skills.
(See P-2, 3, 13, 52; testimony, Mother, Maguire.)
SCHOOL’S PROPOSED PROGRAM
HW proposes that, pursuant to its October 2007 to October 2008 IEP, a partial inclusion program at HW’s Green Meadows Elementary School in Hampden, MA is/was the appropriate educational placement for Ross. Under this proposed IEP Ross would receive the following special education services within a special education classroom (Grid C): reading skills daily for 45 minutes; writing skills daily for 45 minutes; math skills daily for 30 minutes; and speech-language therapy for 30 minutes per day. Ross would receive the following special education services in the regular education 4 th grade classroom (Grid B): science support for 40 minutes per day; social studies support for 40 minutes per day; related arts support for 30 minutes per day. At all times whether in the special education class, regular education class, related arts classes, lunch, recess, in transition between classes, or during his 2008 summer program Ross would be accompanied by his 1:1 assistant. Consultation to Ross’ service providers would consist of consultation/observation by a behavior analyst for one hour twice per week and consultation by a speech-language pathologist, occupational therapist and physical therapist each for ½ hour once per month. Parental consultation from the special education staff would take place once weekly for one hour and there would also be a monthly meeting between all staff working with Ross and Parents for one hour.
Ross’ special education teacher during the 2007-2008 school year (Ross’ 4 th grade) would be Ms. Hildreth who has a masters degree in special education and is certified in early childhood education as well as moderate special needs pre-kindergarten through grade 8. Ms. Hildreth is currently pursuing her BCBA and a second masters degree in Applied Behavioral Analysis (ABA). Ms. Hildreth was Ross’ special education teacher during the late summer of 2006 and for Ross’ entire 2006-2007 school year (3 rd grade). Ms. Noel, who would be Ross’ regular education 4 th grade teacher, is certified in grades 1-6,5 has worked for HW for 8-10 years and has a special education background. Ms. DeGray would be Ross’ 1:1 special education assistant. She has been Ross’ 1:1 assistant for the past 2 ½ years, first as a substitute 1:1 and then for the entire 2005-2006 and 2006-2007 school years, only assigned Ross on a 1:1 basis. Ms. DeGray has received prior and ongoing autism training from May as well as daily training and supervision from Ross’ teachers and therapists. Ms. Ayers would be Ross’ speech-language pathologist. She has a masters degree in communication science and disorders, is a licensed speech-language pathologist in MA, and has her certificate of clinical competency from the American Speech, Language and Hearing Association (ASHA). Ms. Ayers has taken additional courses in autism spectrum disorders and assistive technology and has training in many different language systems such as Lindmood, the picture exchange system, and also in sign language. Ms. Ayers has been Ross’ 1:1 speech-language pathologist for the past two years and would provide the speech-language consultation as well as daily speech-language therapy. Ms. Ayers also performed the March 2007 speech-language evaluation of Ross. Ms. Spanos-Gearing would provide the occupational therapy consultation. She is registered and licensed occupational therapist who has worked for HW for 10 years. Ms. Spanos-Gearing provided Ross with direct occupational therapy from 2003 to the end of the 2006-2007 school year and performed Ross’ occupational therapy evaluation in March 2007. Ms. Jones would provide the physical therapy consultation. She has been a registered physical therapist for 20 years working for HW for the last 6 years. Ms. Jones performed both Ross’ 2003 and 2007 physical therapy evaluations and has worked with Ross as either a direct service provider or as a consultant from 2003 through June 2007. The behavior analyst would be Dennis Warner who is a BCBA who provides behavioral consultation to 26 school districts in MA and CT. (See S-81, 95; testimony, Thompson; Hildreth; Orr, DeGray; Ayers; Spanos-Gearing; Jones; Thomas; S-1, 7, 8, 10, 40, 96.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Ross is a student with special education needs as defined under state and federal statutes and regulations. The parties are in substantial agreement regarding the nature and manifestations of Ross’ special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon 8 1/4 days of oral testimony, the voluminous written documentation introduced into evidence, and a review of the applicable law, I conclude that:
I. The Individual Education Plan proposed by the Hampden-Wilbraham Regional School district for Ross for the period of October 24, 2007 to October 23, 2008 was/is appropriate to address Ross’ special education needs so as to provide him with a free and appropriate public education in the least restrictive education environment.
II. Hampden-Wilbraham Regional School District is not financially responsible for any part of Parents’ unilateral placement of Ross at Realizing Children’s Strengths Learning Center.
III. Based upon the facts and circumstances of this case HW has no liability for the time period that no IEP was proposed for Ross from March 2007 until October 2007.
IV. HW is not responsible to provide compensatory services/reimbursement for Ross back to the summer of 2005.
My analysis follows.
Pursuant to Schaeffer v. Weast 126 S. Ct. 528 (2005) the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case, Parents bear the burden of proof in demonstrating that HW’s proposed IEP is inappropriate to address Ross’ special education needs so as to provide him with FAPE in the least restrictive educational environment. Parents have failed to meet that burden.
I.
As stated under PROFILE OF STUDENT , above, Ross has made demonstrable progress in all areas of testing between late 2003 and early-mid 2007. From age 6 ¼ in 2003 to age 9 ½-10 in 2007 Ross has progressed cognitively/academically from being basically untestable on standardized instruments and functioning at a 2 ½ year old level to being amenable to testing on standardized instruments; scoring low average to average on perceptual/non-verbal intelligence; reading and spelling at a 1 st grade level; and math computational skills at a 2 nd grade level. In speech/language between late 2003 and early 2007, Ross progressed from a 13 month age equivalent to a 6 year old age equivalent. In physical therapy, Ross has progressed from needing physical therapy due to delays in gross motor skills because of his inability to follow directions and imitate (in 2003), to fully accessing gross motor activities and playground equipment, full participation in his physical education classes and no longer requiring direct physical therapy by 2007. In occupational therapy Ross progressed from requiring occupational therapy in 2003 to no longer requiring occupational therapy and functioning within the average to above average range in 2007. On the comprehensive ABLLS assessments Ross made improvement in all areas of functioning assessed between 2003 and 2007 including cooperation, language, social skills, participating in group instruction, following classroom routines, generalizations, reading, math, writing, and self help skills. (Compare and contrast S-1, 2, 3, 4, 5, 6 administered in 2003 with S-7, 8, 9, 10, 11 & 66 administered in 2007. See also testimony, White, Ayers; Spanos-Gearing; Jones; Thomas.)
Ms. Ayers, Ross’ speech-language pathologist who provided him with services on a daily basis over the past 2 years, testified extensively regarding Ross’ progress in areas of communication, language and behaviors. Ms. Spanos-Gearing, Ross’ occupational therapist several times per week over the past 2 years, testified regarding Ross’ progress in motoric/occupational skills and behavior. Ms. Jones, Ross’ physical therapist over the past 4 years, testified regarding his progress in gross motor skills; his ability to now be able to access and be fully intergrated into his regular physical education class; and his behavioral progress. Ms. Hildreth, Ross’ special education teacher since August 2006 and for the 2006-2007 school year, testified extensively regarding Ross’ educational and behavioral progress in her intensive resource room where Ross spent 2 hours daily from September 2006 through June 2007. Ms. Orr, Ross’ 3rd grade teacher, testified extensively regarding Ross’ academic, behavioral, and social progress in her regular education classroom where he is integrated with his peers at the beginning and end of the day, for science and social studies, and for all “specials” i.e., art, music, physical education and assemblies. Ms. DeGray testified in great depth regarding what she did with Ross for the entire school day as his 1:1 assistant in the intensive resource room, 3 rd grade class, speech-language therapy, occupational therapy, and physical therapy. Ms. DeGray also testified as to the progress she has observed in Ross over the 2 ½ years she has been Ross’ 1:1 assistant. Ms. Thomas was Ross’ May consultant for the last 2 school years – 2005-06 and 2006-07. Over this 2 year period Ms. Thomas has observed, interacted with, and instructed Ross, his teachers, therapists, and 1:1 assistant for 2 hours per week. Ms. Thomas also administered the ABLLS in 2007 and reviewed all ABLLS administered to Ross since 2003. Ms. Thomas testified extensively regarding the progress she has observed in Ross academically and behaviorally. (See also S-11, 28, 29, 30, 31, 32, 33, 34.) Ms. Thompson, the Green Meadow Elementary School principal for the last several years, had daily contact with Ross during the 2006-2007 school year and observed him in his intensive resource room with Hs. Hildreth, his regular education 3 rd grade classroom with Ms. Orr, and in those classrooms and other locations with Ms. DeGray. Ms. Thompson testified regarding the progress and improvement she has observed in Ross behaviorally, socially and academically over the 2006-2007 school year. (The detailed testimony of the HW witnesses took 5 full days. See testimony Ayers; Jones; Spanos-Gearing; Hildreth; Orr; DeGray; Thomas; Thompson; for their specific testimony regarding the progress they observed in Ross over their respective time periods with Ross academically, behaviorally, and socially in their specific disciplines.)
I place substantial weight in the testimony of the HW witness cited directly above. Ms. Ayers, Ms. Hildreth, Ms. Orr and Ms. DeGray have all instructed, interacted with, and observed Ross on a daily basis over extended periods of time with Ms. Hildreth and Ms. Orr each seeing Ross for 2-3 hours daily and Ms. DeGray being with Ross for his entire school day. Ms. Thomas has specifically observed, interacted with and instructed Ross for 2 hours per week for the last 2 years. Ms. Spanos-Geary and Ms. Jones each instructed Ross at least twice per week over the last 2 years. Therefore, these witnesses have worked with Ross extensively and intensely over extended time periods and are in the best position to ascertain Ross’ progress over an extended period of time. Each of these professionals testified candidly within their areas of expertise and I found them to be competent, caring professionals and credible witnesses. I particularly cite the testimony of Ms. DeGray who has had a wonderful rapport with Ross; has interacted extremely effectively with Ross; and who impressed me as the most competent paraprofessional I have heard testify in my 29 year career as a Hearing Officer (See testimony, DeGray.) I was also particularly impressed with the knowledge and experience with autistic students and day to day oversight exercised by the Green Meadows principal, Ms. Thompson. (See testimony, Thompson.) Finally, I was impressed by the weekly, Friday after school meetings of several hours with Ross’s special education teacher, regular education teacher, and 1:1 assistant to plan for the next week so that Ross’ time in the regular 3 rd grade class could be optimized and work could be appropriately modified to enable Ross to most fully participate in his mainstreamed classes. (See testimony, Hildreth; Orr; DeGray.)
I find it highly significant that no professional who has either taught and/or evaluated Ross has recommended that his special education needs require an out of district placement. Indeed, even Dr. Anderson, who independently evaluated Ross in August 2007 and knew that he was attending RCS, did not recommend that Ross required an out of district placement. (See S-66.) Subsequently, when Dr. Anderson was asked by Parents’ attorney to provide a written summary of the recommendation after her attendance at Ross’s October 2007 team meeting, Dr. Anderson again did not recommend an out of district placement for Ross. (See P-51; S-83.)6 Dr. Magiure, who testified on behalf of Parents, performed no evaluations of Ross and has never taught Ross (testimony Maguire).
There is nothing within the voluminous exhibits that indicates any educational or clinical recommendation that Ross required an out of district placement prior to the commencement of this hearing. The only 2 witnesses to testify for Parents were Mother and Dr. Maguire. No one from RCS testified at this hearing. Dr. Maguire testified that he did not become involved in this case until October 2007, which was after Ross had already been unilaterally placed by Parents at RCS for the 2007-2008 school year (testimony, Maguire). Therefore, based upon written exhibits and oral testimony presented at this hearing, Parents placed Ross at RCS for both the 2007 summer and the 2007-2008 school year with no professional recommendation that Ross required an out of district placement.
As stated directly above, Dr. Maguire did not become involved in this case until October 2007, some two months after the hearing request was filed. Dr. Maguire performed a records review. He briefly visited Green Meadows School on October 24, 2007 and received a tour of the building and the areas Ross had worked in when he was a student there. Dr. Maguire attended the 2 nd session of Ross’ team meeting on that same date, October 24, 2007. Dr. Maguire did not attend the 1 st session of the team meeting on October 11, 2008. Dr. Maguire observed Ross at RCS for a total of about 1 ½ hours over two dates on November 2, 2007 and January 15, 2008. He also interviewed RCS personal who provided services to Ross. Dr. Maguire wrote a review of HW’s proposed October 2007 to October 2008 IEP. He also wrote a program review of both the HW and RCS programs for Ross. Dr. Maguire found problems/deficiencies in HW’s IEP and found RCS to be appropriate for Ross. Dr. Maguire’s primary concern at HW was the lack of empirical and objective data collection – baseline data, written protocols and current behavioral and performance data. (See testimony, Maguire; P-54, 58.)
Dr. Maguire has impressive behavioral credentials and has extensive experience as a behaviorist (P-55; testimony Maguire). However, he was unable to observe Ross at Green Meadows because Ross had already been placed at RCS. When Dr. Maguire attended the second session of Ross’ team meeting on October 24, 2007 he had never even met Ross. Except at that team meeting Dr. Maguire never spoke with any of Ross’ service providers or evaluators from HW, nor with Dr. Anderson, the independent evaluator. He first observed Ross on November 2, 2007 at RCS and over 2 dates on November 2, 2007 and January 15, 2008 only for a total of 1 ½ hours. As stated above, he has never evaluated Ross (See testimony, Maguire.) Given the above amount of involvement with Ross, all occurring essentially “after the fact”, I am unable to accord Dr. Maguire’s testimony and recommendations significant weight.
Although HW did not compile the type and degree of data that Dr. Maguire, as a behaviorist, believes was necessary, I find that HW did, in fact, collect considerable data on Ross, both academic and behavioral, baseline and comparable over time, some data based upon standardized measure, some anecdotal. The HW exhibits are replete with data taken regarding Ross’ behavioral and academic progress over time. (As examples but not to constitute a complete list, see S-1 through S-11; S-18, 22, 23, 24, 28, 29, 30, 31, 32, 34, 38, 41, 60, 63, 65, 66, 74, 78, 82, 85, 86, 88, 91.)
A significant amount of testimony revolved around a June 4, 2007 incident which greatly upset Mother (testimony, Mother). On that date Ross perseverated on an item/task in his regular education 3 rd grade classroom, was unable to overcome it, and his behavior esculated. Ms. Thomas, consultant from May was observing that day. It was decided that Ross should be escorted out of the classroom, down the corridor and into the principal’s air conditioned conference room which had 3 doors and lots of windows. Ross was accompanied down the corridor and into the conference room by his 1:1, Ms. DeGray, Ms. Thomas, and Ms. Orr. In the conference room Ms. Orr was replaced by Ms. Hildreth. Ross remained in the conference room for about 40 minutes with Ms. DeGray, Ms. Thomas, and/or Ms. Hildreth talking to him until he calmed down and finished his work. He then had lunch and returned to class. This was the only such incident over the entire 2006-2007 school year in HW with Ross. (See testimony, Thomas; DeGray; Orr; Hildreth; Thompson.) I find nothing improper in the way this incident was handled. In fact, I conclude that it was handled in a low key, respectful manner.
In summary, I conclude that HW’s October 2007 to October 2008 IEP (S-81) and January 2008 IEP Amendment (S-95) are/were appropriate to address Ross’ special education needs so as to provide him FAPE in the least restrictive educational environment – that is/was, a partial inclusion program at Green Meadows Elementary School. Numerous teaching methodologies (including ABA, direct teaching and incidental teaching) are utilized along with a number of different teaching systems (including Edmark-reading and Touch-math) all of which have been effective with Ross in the past. Ross would spend approximately ½ of his day receiving special education instruction in the intensive resource room and approximately ½ of his day integrated into regular 4 th grade where he can continue his progress in peer modeling and interactions, socialization skills, and generalization of skills. I conclude that HW’s IEP/IEP Amendment comprehensively and intensively addresses Ross’ special education needs while allowing him to be educated in the least restrictive educational environment consistent with the provision of FAPE. HW’s IEP/IEP Amendment is entirely consistent with state and federal special education law.
II.
Because I have determined that HW’s program for Ross is appropriate, I need not make any findings regarding the appropriateness of RCS for Ross. However, I make the following observation. Ross lived in Wilbrahm. RCS is located in Natick. Mother testified that it took her 1 ¼ hours to drive from her home in Wilbrahm to RCS in Natick and about 1 ¼ hours to return from RCS to home at the end of the school day (testimony, Mother). Therefore Ross spends a minimum of 2 1/2 hours per day commuting to and from RCS. Even Dr. Maguire had some reservations about the length of Ross’ commute. (See testimony, Maguire.) I note that 603 CMR 28.08(8) Transportation Services provides:
1. the district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team. The Team shall document such determination on the IEP. Emphasis added
III.
From the expiration of Ross’ last accepted IEP in March 2007 until Ross’ new IEP was promulgated in October 2007 Ross was without either an accepted IEP or a proposed IEP which, absent mitigating circumstances, would constitute a procedural violation. However, 20 U.S.C. (f)(3)(E)(2) (ii) as amended in 2004 provides:
Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free and appropriate public education only if the procedural inadequacies –
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate public education to the parents’ child; or
(III) caused a deprivation of educational benefits.
A school district that violates a student’s procedural rights under federal and state
special education law may be liable for compensatory services only where the procedural irregularities have compromised the pupil’s right to an appropriate education or caused a depivation of educational benefits, Roland M. v. Concord School Committee 910 F.2d 983 (1 st Cir. 1990). Compensatory services are basically a remedy to make up to a student what was lost as a result of not having received the requisite special education services, and is an equitable remedy involving discretion in determining what relief is appropriate after considering all aspects of the case. Phil v. Mass. Dept. of Education 9 F.3d 184 (1 st Cir. 1993). Violations that do not deprive a child of FAPE do not entitle parents to compensatory relief. Murphy v. Timberlane Regional School District 22 F. 3d 1186 (1 st Cir. 1994); Pihl v. Mass. Dept. of Education , supra. The development of an IEP is a collaborative effort and it is not proper to hold a school district liable for the procedural violation of failing to complete an IEP when such failure was caused by the lack of cooperation and obstruction of the parent of the IEP process and such obstruction can relieve a school from its obligation to have an IEP in place. MM v. School District of Greenville County 303 F. 3d 523 (4 th Cir. 2002); Lessard v. Wilton Lyndelborough 518 F. 3d 18 (1 st Cir. 2008); Roland M. v. Concord School Committee , supra.
Based upon the facts and circumstances of this case, I find that HW has no
liability for the March to October 2007 time period when no IEP was in place for Ross. Parents’ actions cancelling team meetings at the last minute or simply not attending scheduled team meetings for which they received adequate notice (and when all other team members were already assembled), and Parents not attending a resolution meeting that was specifically requested by their own attorney, were precisely the reasons that no IEP was proposed for Ross in a timely manner. (See HISTORY/STATEMENT OF THE CASE , above; testimony, Tobias; Mother.) Further, Ross continued to function under his expired but last accepted IEP and he continued to receive all such services until the end of the 2006-2007 school year. This last accepted IEP (P-35; S-18), like prior IEPs, had a provision for extended school year services (summer services) which Parent could have accessed but chose not to, instead placing Ross at RCS for the 2007 summer. In summary, this time gap and HW’s actions in postponing the team meetings in order to ensure Parents’ participation did not impede Ross’ right to FAPE, impede Parents’ right to participate in the team process, or deprive Ross of educational benefit. Therefore, HW owes no compensatory services or reimbursement for this period.
IV.
20 U.S.C. §1415 (f)(3) provides for a two year statute of limitations under the IDEA. Parents can reach back two years from the date of the filing of the hearing request. Therefore, all claims prior to August 3, 2005 are barred by the above statute of limitations.
Further, except for the current, rejected October 2007 to October 2008 IEP in dispute, all of Ross’s prior IEPs were accepted by Parents and they all have expired as accepted IEPs . Both the courts and the BSEA have repeatedly held that Hearing Officers are precluded from revisiting/re-opening accepted IEPs that have expired where parents have participated in the development of the IEP; parents have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and parents have never rejected the IEP during its term. See Chris A. v. Stow Public Schools , 16 EHLR 1304 (MA 1990), affirmed on appeal, Amann v. Stow School, System 982 F.2d 644 at 651 (1992). See also Burlington v. Department of Education , 471 U.S. 359 at 373 (1985); Amherst-Pelham Regional School District v. Department of Education , 376 Mass. 480 at 483 (1978). Manchester School District v. Christopher B. , 19 IDELR 143 at 147 (DNH); In re: Marblehead Public Schools , 7 MSER 176 at 180 (SEA Mass 2002); In re: Fairhaven Public Schools , 12 MSER 95 (SEA Mass 2006). In re: Hopkinton Public Schools 13 MSER 234 (2007).
Based upon the above, HW is not responsible to provide compensatory services/reimbursement to Parents for parentially obtained private services back to August 3, 2005.
ORDER
I. The Individual Education Plan proposed by the Hampden-Wilbraham Regional School District for Ross for the period of October 24, 2007 to October 23, 2008 was/is appropriate to address Ross’ special education needs so as to provide him with a free and appropriate public education in the least restrictive education environment.
II. Hampden-Wilbraham Regional School District is not financially responsible for any part of Parents’ unilateral placement of Student at Realizing Children’s Strenghs Learning Center.
III. Based upon the facts and circumstances of this case, HW has no liability for the time period that no IEP was proposed for Ross from March 2007 until October 2007.
IV. HW is not responsible to provide compensatory services/reimbursement for Ross back to the summer of 2005.
By the Hearing Officer Dated: September 19, 2008
______________________
Raymond Oliver
1
Ross is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
By the conclusion of testimony in this case, Ross had turned 11 years old. Ross and his family now reside in Wellesley, MA (Parents closing brief).
3
Mother testified of having no knowledge regarding this May 23, 2007 team meeting. (See testimony, Mother.)
4
Two other dates were scheduled but not utilized due to Parents’ attorney’s: 1) illness in family and 2) being called into court on an emergency matter in which she was issued a protective order by the court.
5
Ross’ 3 rd grade regular education teacher during the 2006-2007 school year was Ms. Orr who was also certified to teach grades 1-6.
6
Interestingly, Dr. Anderson was not called as a witness at this BSEA hearing.