COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Dracut Public Schools BSEA #08-8046
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on September 22 and 24, 2008 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Parents requested a hearing on June 19, 2008 and the hearing was scheduled to occur on July 24, 2008. A pre-hearing conference was held on July 14, 2008. During the pre-hearing conference the parties agreed to postpone the hearing until August 13, 14, and 15, 2008. On July 28, 2008, Dracut filed a Motion to Join the Department of Mental Retardation (DMR). On August 5, 2008, the hearing officer allowed DMR’s request for an extension of time to respond to the Motion to Join and to postpone the August 13, 14, and 15, 2008 hearing. On August 12, 2008, the hearing officer denied Dracut’s Motion to Join DMR and on September 2, 2008, the matter was scheduled to proceed to hearing on September 22 and 24, 2008. On September 18, 2008 the hearing was reassigned from Hearing Officer Rosa Figueroa to Hearing Officer Catherine Putney-Yaceshyn.
The hearing was held on September 22 and 24, 2008 at the Bureau of Special Education Appeals. At the close of the hearing Parent submitted a written brief and Dracut Public Schools requested a postponement to allow time for submission of a written closing brief. Parents did not object and the hearing officer set a deadline of October 8, 2008 for the submission of the brief. Dracut submitted its brief on October 9, 2008. Parents did not object to the brief being filed late and the record closed on October 9, 2008.
Those present for all or part of the Hearing were:
Mother
Father
Robert Augustine Advocate for Parents and Student
Anne Chastain Physical therapist, Massachusetts General Hospital
Sharon Serinsky Occupational therapist, Massachusetts General Hospital
Amy Morgan Neuropsychologist, Massachusetts General Hospital
Michelle Scott Service Coordinator, Department of Mental Retardation
Jean O’Brien Retired Coordinator of Learning Disabilities Program, Dracut Public Schools
Robert Fiore Physical therapist, Dracut Public Schools
Deborah Rizzo Intensive Special Needs teacher, Dracut Public Schools
Kim Kershlis Speech language pathologist, Dracut Public Schools
Alison Sandoval Speech language pathologist, Dracut Public Schools
Leigh Horne-Mebel Clinical social worker, Massachusetts General Hospital
James Generoso Principal, Dracut High School
Lisa Baker Nurse, Dracut High School
Colleen Santarpio Certified Occupational Therapy Assistant, Dracut Public Schools
Karen Hefler Occupational therapist, Dracut Public Schools
Thomas David Teacher of the visually impaired, Dracut Public Schools
Steven Stone Executive Director of Special Education, Dracut Public Schools
Kevin Murphy Attorney for Dracut Public Schools
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Parents’ exhibits marked P-1 through P-32, Dracut Public Schools’ exhibits marked S-1 through S-23, and approximately 10 hours of recorded oral testimony.
ISSUES
1. Whether Dracut complied with the statutes and regulations regarding independent evaluations during the 2006-2007 school year.
2. Whether Student’s section 504 rights were violated by Dracut’s failure to provide a wheelchair accessible bus on four occasions.
3. Whether Student was provided with a free appropriate public education during the 2006-2007 school year.
4. Whether Dracut reduced services to Student despite Parents’ rejection of the IEP proposed for the 2006-2007 school year.
5. Whether Dracut provided Student with a free appropriate public education in the least restrictive environment during the 2007-2008 school year.
6. Whether Dracut complied with the last accepted IEP during the 2007-2008 school year.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a seventeen-year-old student who resides in Dracut and has attended the Dracut Public Schools since turning three. She has global developmental delay that includes communication, visual, and motor deficits. Her medical history includes early onset of meningitis and seizures. Her developmental level is estimated to be in the moderate range of mental retardation. (S-12) She is considered functionally blind and her vision has become gradually worse over the past few years. (S-12, P-15) She is primarily nonverbal and presents with severely reduced functional communication abilities characterized by deficits in all areas, including initiation of use, preverbal and verbal communicative intent, and expressive and receptive language skills. (S-11, P-16) She has a gastrostomy tube that is used for nutrition at school. (S-11)
2. Student has had a history of significant visual difficulties, including high myopia and retinal detachments in both eyes. As of June 2006, when Dracut did its most recent Functional Vision Assessment, Student had no vision in her right eye and little functional vision in her left eye. She appeared to be able to track lights and locate objects through the lower left quadrant of the left eye. Student also experiences cortical visual impairments. (S-12) Currently, Student does not have any functional vision and her decrease in vision has impacted her skills. (Mother, Hefler)
3. Student’s last accepted IEP is for the time period from April 29, 2005 through April 28, 2006. Parent accepted the IEP in full on August 16, 2005. The IEP contained no services in the A grid or B grid. It provided for physical therapy 2 x 30 minutes per week1 ; vision 2 x 30 minutes per week; speech/language 2 x 30 minutes per week; occupational therapy “2×30 consult”; “Skills” 27 x 45 minutes per week; and extended year “29 days @ 4 hrs/day” from July 5, 2005 through August 12, 2005. Among Student’s listed necessary accommodations is a 1:1 aide. Additionally, Student reportedly learns best through a multi-sensory approach. On page 4 of 14, Present Levels of Educational Performance B: Other Educational Needs, the IEP indicates that Student has needs in the area of “Orientation and Mobility, Physical and Occupational Therapies.” The IEP indicates that she requires among other things, “Consult between mobility and PT instructors to insure appropriate travel techniques and use of adaptive equipment.” (P-4, S-19)
4. The Team convened on June 14, 2006 to propose an IEP for the 2006-2007 school year. The IEP proposed consultation with the vision specialist 1 x 30 minutes per week; consult with the occupational therapy staff 1 x 30 minutes per week; consult with the physical therapist 1 x 30 per week and an additional physical therapy consult 1 x 30 minutes per month. The IEP proposed direct services within the general education classroom in the areas of speech/language 2 x 30 minutes per week, in the area of vision 1 x 30 minutes per week, and in the area of physical therapy 2 x 10 minutes per week. Additionally, in the C Grid, the IEP proposed extended year “29 days @ 4 hours/day, life skills 22.5 x 50 minutes, and a paraprofessional 5 x 360.” The IEP also provided that a communication book would be provided by the parent and the specialists would record a note at each session. This IEP required a one to one aide be with Student at all times. (S-20) It was signed by the Team Chairperson on September 22, 2006. Steven Stone, Executive Director of Special Education for Dracut, could not explain why Student’s IEP for the 2006-2007 school year which was developed and signed by Dracut in June 2006 was not provided to Parents until September 2006 when they requested the document after Student returned to school without an IEP. He called it an egregious error. (Stone) The record is unclear as to whether Parents rejected the IEP or simply did not sign the IEP. Although the copy of the IEP in the record is unsigned, Mother testified that Parents rejected the IEP and Dracut referred to the IEP as rejected in its exhibit list. (S-20)
5. Deborah Rizzo has a Master’s degree in intensive special needs and is certified in early childhood and intensive special needs. She has been Student’s teacher in the Lifeskills program at Dracut high school during the past two school years. There are currently eleven students in the program2 . Student is the lowest cognitively functioning student in the class and there is one student functioning at the fourth grade level in some areas. Several students in the class have multiple disabilities and four are in wheelchairs. Six of the students have one to one aides. There is one other student who is new to the program who is blind. Ms. Rizzo has no prior experience working with visually impaired students and has received no formal training in working with such students. (Rizzo)
Ms. Rizzo described Student’s daily schedule. She is met by her one to one aide at the van each morning and is brought to the classroom in her wheelchair. She waits until the attendance is done and walks with her aide to bring the attendance to the office. She has free time/sensory time during which she touches objects. It is unclear whether she does this independently or with a staff person. She has “stander time” for up to twenty five or thirty minutes. Sometimes Student only lasts five minutes standing and if she begins to cry the staff takes her out of the stander. Student than has “exploration time” which is free time for her. The staff changes her at a certain time each day and they lay her down and stretch her during her changing time. Student participates in chorus. She mimics the sounds she hears and claps her hands. During her lunch time the one to one aide or speech language pathologist feeds her. During theater class Student sometimes gets out of the chair and does movements with the class. During pre-vocational time Student helps to deliver mail in her wheel chair and assists with errands. She sometimes sits in the school store, although she does not tolerate that well3 .
Ms. Rizzo explained that her students go on field trips to a local grocery store. Prior to going to the store they plan a menu for a monthly luncheon. They make a list and the students go to the store and gather and purchase the items they will need at the store. Ms. Rizzo acknowledged that during the 2006-2007 school year there were four occasions on which a wheelchair van was not available. On those occasions the students in wheelchairs were left at school and the other students went on the field trips. She raised the issue to Mr. Generoso, the current principal, and there have not been any times during this school year or last school year that she has not been able to secure a wheelchair van for a field trip.
6. On February 16, 2007, the day before February vacation, Mother received a telephone call from the school nurse, Lisa Baker, informing her that Student’s aide had brought Student to her office with an injury. The aide told Ms. Baker that Student had arrived at the classroom with the injury. Ms. Baker described the injury as a moderately raised abrasion or a small “goose egg” with what looked like a rug burn on Students forehead. Ms. Baker testified that when Student was in her office she was clapping and smiling and seemed to be okay. She was not concerned about Student remaining in school. Ms. Baker explained that Student tends to hit herself and she has seen her bleed from the mouth from hitting her own face on prior occasions. Later in the afternoon Mother called Ms. Baker and told her that the bus monitor who had brought Student to the classroom that day had not seen any mark on Student’s forehead. Ms. Baker wrote an incident report regarding Student’s injury on the day she returned from February vacation. (Baker)
Mother explained that in addition to the injury to Student’s forehead, part of her lip was bleeding. She stated that Ms. Baker had informed her that the Student arrived at school with the injury and it must have happened on the bus. Mother questioned the bus driver and the bus monitor and they assured her that the injury did not happen on the bus. Mother requested a meeting with all of the people who were present on the day Student was injured including the bus driver, monitor, substitute teacher (Ms. Rizzo was absent), and substitute aide because nobody could explain how Student was injured. Despite Parents’ repeated requests, the meeting never occurred. (Mother)
7. The Team convened for the annual review on March 28, 2007. The IEP proposed a vision consult 1 x 30 minutes per week; a physical therapy consult 1 x 30 minutes per week, an occupational therapy consult 1 x 45 minutes per week, and an additional physical therapy consult 1 x 30 minutes per week. In the B grid, the IEP proposed communication 2 x 30 minutes per week with the speech/language staff; vision 1 x 30 minutes per week with the vision specialist, and physical therapy 2 x 10 minutes per week. The C grid included life skills 22.5 x 50 minutes per week, a paraprofessional 5 x 360 minutes per week, extended year speech services 1 x 30 minutes per week from June 21, 2007 through July 26, 2007, and extended year services with the special education staff 25 days x 110 minutes from June 21, 2007 through July 26, 2007. The IEP was signed by the Special Education Chairperson on April 11, 2007. The record is unclear as to whether Parents rejected the IEP or simply did not sign it. Although the copy of the IEP in the record is unsigned, Mother testified that Parents rejected the IEP and Dracut referred to the IEP as rejected in its exhibit list. (P-2)
8. The Parents again tried to get answers about how Student was injured in February. Dracut did not provide Parents with a copy of the incident report and was unable to explain how Student was injured. Parents feared for her safety in Dracut and decided to keep her at home after the meeting. Student did not return to school for the remainder of the school year. She did not receive any home services nor did she receive any summer services. The only contact that Parents had with Dracut was a phone call from the vice-principal a few days after Parents removed Student from school. In June Mother tried to contact Dracut staff to discuss getting Student back to school. She contacted Jean O’Brien, Deb Rizzo, and Steven Stone and received no response. She did not receive any response from Steven Stone until she contacted the superintendant and informed her that her e-mails and letter to Mr. Stone had gone unanswered. (Mother)
9. In August 2007 Parents and Leigh Mebel, a social worker from Massachusetts General Hospital, (hereinafter, “MGH”), met with Mr. Stone and Mr. Generoso, the high school principal. Parents still had not received a copy of Ms. Baker’s incident report and they wanted a resolution of the matter so they could determine whether it was safe for Student to return to school. Parents were also concerned that Student’s services had not been provided in accordance with Student’s last accepted IEP. (Mother) The parties agreed that Dracut would fund independent evaluations and that the Team would consider an outside placement if the evaluations supported such a placement. (Mother, Stone) The occupational therapy, physical therapy, and speech language therapy evaluations were completed in January and the vision evaluation was done in February or March. (Mother)
James Generoso has been the principal of Dracut High School since July 1, 2007. He became aware that Student remained out of school because Parents were concerned about her safety shortly after he came to Dracut. Mr. Generoso was aware of policies that Dracut typically followed when students were absent including calling home each day of a student’s absence and writing a letter to the student’s parents. However, he did not try to ensure Student’s return to school because Dracut and Parents were in the process of negotiating conditions for her return. Based upon his August meeting with Parents he knew Parents were upset about the incident. He spoke to Ms. Rizzo and Mr. Stone about Student’s safety. He wrote a memo to Parents listing the “safety measures4 ” that Dracut agreed to provide. It took him a few months to provide the memo to Parents because he wanted to make sure Ms. Rizzo and Mr. Stone could do the things he promised Dracut would do. The memo, dated September 28, 2007, memorialized the agreement Dracut reached with Parents as follows.
1) A monitor will be available for Student on the van both to and from school;
2) A Dracut High School staff member will meet the van each day and escort Student into the building; likewise at the end of the day, a Dracut High School staff member will escort Student to the van;
3) During the school day there will be a full time aide, dedicated to working with Student. The full time aide assigned to Student will be constantly with Student for the entire time Student is at Dracut High School;
4) Ms. Rizzo will ensure that one of her other aides will be available during breaks for the full time aide;
5) Student will return to Dracut High School when everybody agrees that all of these steps are in place. (P-28(29))
Student did not return to school until October 10, 2007 when Dracut had agreed to put safety measures in place. Mr. Generoso did not see any reason why the agreement for Student to return to school took so long and saw no reason why it could not have been done in April, shortly after Parents removed Student from school. (Generoso)
Mr. Stone acknowledged that Student’s services were not all in place when Student returned to school in October 2007. Student returned to school on October 10 and received her first speech and language therapy session on October 22. She received her first occupational therapy session on October 22 as well. As of October 22, Student had already missed two sessions of physical therapy. (P-28(34)) Student did not receive vision services until December 2007 despite the fact that Thomas David, Dracut’s teacher of the visually impaired, began working in Dracut in October.5 (P-28(33, Stone)) She did not begin receiving two sessions of speech language therapy per week until January 2008. Additionally, Student was only receiving half of the speech language therapy required by her last accepted IEP as Dracut had a shortage of speech language pathologists. (Mother, Rizzo, Stone) A speech language pathologist from another school came to see Student once per week. In January 2008 a speech language pathologist was hired and Student began receiving the required two sessions per week. (Rizzo)
10. Student has not been injured at school since 2007, although Ms. Rizzo explained that Student hits herself in the face causing bruises and pounds on her chest a lot. Ms. Rizzo noted that these behaviors have increased since Student returned to school and she believes it is a “sensory thing” and that Student is doing it to self-stimulate. (Rizzo)
11. On or about February 26, 2008, Dracut received reports of Student’s evaluation results from MGH. A Pediatric Team Comprehensive Evaluation was completed by Patricia Anne Chastain (physical therapist), Michelle Psillos (speech language pathologist), and Sharon Serinsky (occupational therapist) on January 2 and 16, 2008. The evaluators observed that Student continuously engaged in sucking and chewing behaviors on objects within her reach including a bib tied around her neck, the straps on her wheelchair and objects and toys presented to her. She maintained an open mouth posture with copious drooling. Parents reported that Student’s ability to ambulate had deteriorated in the last few years and she was walking much less than she used to. The evaluators noted very low muscle tone in Student’s face and the muscle tone in her trunk and extremities appeared to be within normal limits. However, Student’s limb and trunk strength were lower than expected for her age and her limbs were very thin with considerably reduced muscle bulk. (S-11, P-16)
A formal assessment of Student’s oral motor functions and speech sound development was not conducted due to the absence of verbal output during the evaluation session. Student did produce unprompted laughs and open vowel vocalizations on multiple occasions. Student had received a complete Oral Motor/Feeding Evaluation at MGH in 2004 which recommended a coordinated school-based feeding program involving speech and language therapy and occupational therapy. The evaluators noted that Student had become less tolerant of textures and foods and that she used abnormal sucking and drinking patterns. They also noted that when Mother was instructed to push up firmly on Student’s lower lip to achieve lip closure, Student tolerated the input and swallowed some of her saliva. Ms. Psillos determined that Student’s expressive language skills appeared to be at the three month old level with skills emerging up to the six month age level. She showed signs of preverbal communicative intentions and attention-seeking behaviors. She also made an approximation of the sign for “more” in response to music. Student demonstrated awareness of others in her environment. She was inconsistent in responding to her name, but by report, does identify people by voice. She reportedly understands single word words, and upon hearing her mother comment on brushing her teeth, Student turned toward her Mother and opened her mouth. She responded to the verbal prompts “Stand up” “Let’s Go” and “Clap.” (S-11, P-16)
Student’s play skills were noted to be significantly reduced, clustering in the three month range with skills emerging in the six to nine month range. Her skills were severely limited by visual impairment. The evaluators noted that Student is able to bear weight spontaneously on her upper extremities in a variety of positions, but does not “weight bear” on a fully opened hand. They reported that Student constantly engaged in oral motor behaviors by bringing most objects to her mouth or by sucking on her tongue. She enjoyed rocking back and forth using her own body movements. She occasionally threw toys and accidentally hit her parent in the face while moving her arms. Her sensory skills are limited in terms of using sensory input for adaptive and functional means. (S-11, P-16)
The evaluators made detailed recommendations for Student including that an alternate educational placement be considered for her. They noted, “[I]t is of critical concern that [Student]’s functional mobility has deteriorated in the last few years. She has lost flexibility in knees and ankles, putting her at grave risk for losing her ability to stand and walk.” They urged that every effort be made to assist Student in regaining her flexibility so that she does not become wheelchair bound. They recommended the use of a passive stander to get her back on her feet with more frequency and consistency. (S-11, P-16)
The evaluators noted Parents’ report that Student’s oral motor feeding skills have regressed in the last year and Student is less receptive to different food textures. Additionally, they observed that Student drools excessively and has significant limitations in her oral motor skills. They noted that several reports since 2004 recommended that Student receive a therapeutic oral motor feeding and stimulation program. Although they acknowledge that Student may never become an oral feeder, “at the very least, she should be able to demonstrate improvement in her ability to control saliva enabling an improved quality of life for her.” (S-11, P-16)
The evaluators noted that Student’s “severe visual impairment makes it necessary for her to rely on tactile and auditory stimuli for receiving information. Mother reported a marked decline in speech and language skills over the past years, possibly due to recurrent seizures.” The evaluators recommended a more functional communication plan be put in place. Due to the complexity of Student’s needs, the evaluators recommended that Student be educated in an environment that offers expert therapeutic intervention and that fosters team collaboration throughout Student’s day. The program should also support carryover of skills into the home and community. (S-11, P-16)
The evaluators recommended that Student receive speech and language therapy a minimum of 3 x 30-45 minutes per week using a total communication approach to address the development of preverbal and verbal functional communication skills and speech sound production. Therapy goals and objectives should include a plan that develops functional communication skills to allow Student the ability to express basic needs and wants. Services should be provided in a one-to-one setting and within the classroom. Additionally, a home program should include choice-making activities for carry-over in the home. The therapists recommended a number of goals for speech therapy including “active stimulation”, giving Student regular opportunities to control toys and objects in her school and home using switch activation. They recommended using voice output devices to encourage socialization; choice making for functional communication; vocalization and gestures for recurrence of an activity; and manual signs. They also recommended that Student be provided with clear beginnings and endings of activities and the use of routine scripting for communication. (S-11, P-16)
The therapists indicated that a mobility-vision specialist “is an absolute must for school.” They recommended a daily stretching program to maintain lower extremity flexibility. They recommended a daily standing program due to concern over Student’s low tolerance for bearing weight on her feet. They recommended frequent position changes during Student’s day. They suggested that Student be seated in a Rifton chair, preferably with her feet resting firmly on the floor during desktop work. Additionally, they suggested that Student be assisted to ambulate several times a day between activity stations. (S-11, P-16)
Due to changes in Student’s oral motor functioning, the therapists recommended that an Oral Motor/Feeding re-evaluation be completed to assess feeding safety at school and home. They recommended a “structured, purposeful sensory motor program at home and at school” to improve her oral motor skills provided by an occupational therapist with experience in sensory integration. They noted that allowing Student to “randomly move from one sensory experience to another without demanding adaptive responses within her repertoire is not recommended.” (S-11, P-16)
12. Mother testified that she observed Student’s program in January 2008. She observed from 10:15 a.m. until 1:15 p.m. and Student remained in her wheelchair for the entire time other than a diaper change and free time on the floor. Mother believes that Student’s skills have regressed during the past two years. She believes that Student’s feeding skills have decreased and that currently an aide feeds Student instead of providing Student hand over hand guidance to feed herself as she was previously able to do. She also believes her ability to walk has decreased and that Student had not been walking very much at school prior to her January observation. Student’s communication skills are a concern to her especially because her vision has decreased to the point that she can no longer see and teaching methodologies should be adjusted to reflect her loss of vision. (Mother)
13. Amy Morgan, Ph.D., conducted a neuropsychological evaluation of Student on January 30, 2008. During the evaluation she noted Student communicated primarily with gestures, but used occasional vocalizations. Dr. Morgan noted that Student responded to voices, particularly her mother’s, and would smile and attempt to block her parents’ hands when they said, “tickle tickle.” Student demonstrated that she understands the meaning of “no” or “stop.” Dr. Morgan noted that Student engages in a variety of self-stimulatory behaviors, some of which cause her to injure herself. She hits herself on the chest and sometimes on the face and has caused damage to one of her eyes through this behavior. (S-12, P-15)
Dr. Morgan determined, based upon her use of the Vineland Adaptive Behavior Scales, that Student has some skills that are at an approximately two year old level. Relative strengths for Student include receptive language. She used a limited number of gestures and vocalization to communicate. Dr. Morgan concluded that given that Student is socially responsive “with important foundation abilities…for building her communication skills it will be critical to help build her communication skills.” Building her communication skills could then facilitate development of her cognitive abilities. (S-12, P-15)
Dr. Morgan recommended that Student’s education program provide comprehensive educational, therapeutic and support services. She recommended that instruction be provided by individuals trained in working with children with brain injuries. She further recommended that appropriate supports be provided to accommodate Student’s vision impairment. She also recommended Student receive services to improve her sensory processing to help her to reduce self-injurious behaviors. She suggested Student receive daily, systematic multi-sensory, individual tutorials for skill development, using skills that Student’s family and education team deem most important for Student’s development. Dr. Morgan recommended that Student’s school program take place twelve months per year five days per week to avoid regression of abilities that can commonly occur in children with neurological conditions when services are reduced or withdrawn. She also recommended home services for approximately ten hours per week to encourage Student to use her emerging skills in other settings. (S-12, P-15)
14. The Carroll Center for the Blind conducted a “Learning Media Assessment” which consisted of a teacher of the visually impaired observing Student in Dracut on February 12 and 28, 2008. The report included minimal recommendations including continued services from a teacher of the visually impaired. It recommended that service providers always reintroduce themselves to Student after working with a different student and using a tactile object such as a watch or bracelet to represent a new staff person. The report also recommended that staff persons always give Student a point of reference when she is in the classroom or hallway to help her to understand where she is in space. The report suggested a number of materials from the American Printing House for the Blind which could be used with Student.6 (P-17, S-13)
15. The Team convened on April 29, 2008 to develop Student’s IEP and review the independent evaluations. The service delivery grid proposed consultation in the following areas: speech/language feeding consultation 1 x 10 minutes per week; communication consultation provided by the speech/language pathologist 1 x 15 minutes per week; vision consult provided by the vision specialist 2 x 30 minutes per week, physical therapy consults 1 x 40 minutes per month and 1 x 20 minutes per month, and occupational therapy consult 2 x 30 minutes per week. The C grid contained physical therapy 2 x 10 minutes per week; special education support with a paraprofessional 5 x 375 minutes per week; life skills with the special education teacher 5 x 205 minutes per week, communication with the speech/language pathologist 3 x 30 minutes per week; vision services 2 x 30 minutes per week and extended year services with the special education staff 25 x 180 minutes per week from 7/7/08 until August 8, 2008. Parents rejected the IEP in full and rejected the placement on June 13, 2008. The Parents accepted extended year services for Student. (S-22)
16. Robert Fiore has a Master’s degree in physical therapy and is licensed in Massachusetts. He has worked with Student since 2003 and sees her twice per week for thirty minutes. He goes to her classroom and stretches her either before or after walking with her. Student is able to walk approximately 800 feet. He suggests Student receive daily stretching, twice per week with him, and the other days with her aide. He has trained Student’s aide to stretch Student. He testified that that should be happening every day7 . Mr. Fiore stated that the only regression he notices is when Student returns from summer vacation. He stated that it takes about two weeks to get Student back in the mode of walking, but that she picks it “right back up” again. Mr. Fiore does not have any experience working with students who have a visual impairment other than Student and one other student with whom he currently works. He has never consulted with Thomas David, Dracut’s teacher of the visually impaired, but consulted with the prior teacher of the visually impaired, Theresa Morin. He believes that Student’s physical therapy services should be purely consultation. He indicated that her stretching should be done daily at home. He agrees that she should walk throughout the day, but does not believe that she needs physical therapy services for this purpose. He stated that Dracut Public Schools is able to provide and is currently providing the physical therapy services recommended by MGH. (Fiore)
17. Colleen Santarpio is a certified occupational therapy assistant who works at Dracut Public Schools pursuant to a contract between her employer, Rehabilitation Therapy Associates, and the Dracut Public Schools. She has worked with Student since September 2004. Ms. Santarpio provides consultation 2 x 30 minutes per week. She stated that she interacts directly with Student and collaborates with the teacher and other therapists. She meets with Ms Rizzo twice per week and her recommendations have been “activity and sensory based.” Ms. Santarpio consults with the teacher of the visually impaired, Thomas David, a lot. He has provided Student with a lot of manipulatives and activities that she uses to work on Student’s functional gross motor and fine motor skills. She agreed with the recommendation of the MGH occupational therapist that Student be provided with a full sensory motor program and stated that Dracut Public Schools is currently providing her with that. She agreed with the MGH recommendation for the use of active switches and stated that Student had them at the end of last year, but she had not introduced them to Student this year. (Santarpio)
18. Karen Hefler is a Massachusetts certified occupational therapist. She provides consultation to Ms Santarpio, but is not her direct supervisor. She has done four of Student’s evaluations at Dracut and is familiar with the services provided to Student. She observed Student’s classroom at least once this year and has spoken to Thomas David once or twice. She explained that Student’s decreasing vision has impacted her skills and her progress. She noted that prior to losing her vision Student used to have a visually directed reach. Now she does more searching when reaching for objects. (Hefler)
19. Kim Kershlis is a Master’s level speech language pathologist licensed in Massachusetts and New Hampshire and holding ASHA-CCC certification. She works for an agency that contracts with Dracut. She has provided services to Student since January 2008. She feeds Student twice per week pursuant to her understanding of Student’s last accepted IEP. Student’s last accepted IEP’s measurable annual speech language goal indicates “Student will participate in language stimulation activities such as singing, clapping, tapping, hand gestures, tolerating textures and oral stimulation.” The Benchmark/Objectives indicate “[Student] will tolerate various textures (i.e. soft, hard, rough, smooth) for up to 15 seconds”; “[Student] will participate in language stimulation activities for five minute or more”; and “[Student] will participate in oral stimulation exercises.” (S-4, P-19)
Ms. Kershlis tries to increase the textures Student tolerates. Student pushes the spoon away and bites down while she is feeding her. She has seen a regression in Student’s feeding skills, specifically a decrease in Student’s ability to tolerate certain foods. She tries to encourage Student to keep her hands down while she feeds her. Student takes larger pieces of food out of her mouth now whereas she used to try to chew larger pieces. Ms. Kershlis explained that Student’s vision and lack of imitation skills makes it difficult to work with her. Student cannot see to imitate the therapist’s actions. Student has become much more defensive to touching. When Ms. Kershlis reaches out to touch Student she pulls away from her. Student’s vision interferes with her feeding. Ms. Kershlis did not report having consulted with the teacher of the visually impaired. (Kershlis)
20. Alison Sandoval is also a Master’s level speech language pathologist with ASHA certification and Massachusetts licensure. She provided summer services to Student in summer 2006 consisting of feeding 2 x 30 minutes per week. She introduced a vibrating massager with a spoon attachment. The spoon made a buzz that cued Student and she would lean forward toward the spoon to reach to get the food. Ms. Sandoval explained that Student hits her chest and moves her hands around while she eats. She described the actions as self-stimulating. Ms. Sandoval provided services to Student beginning in October 2007 when Student returned to school. She mostly provided feeding and some days did some speech communication services which she described as exploratory. Ms. Sandoval did not have much success trying new things with Student with the exception of the vibrating spoon. Ms. Sandoval agreed with the MGH evaluators that Student requires oral motor services.
21. Thomas David has a Master’s degree and is a certified teacher of the visually impaired with approximately twelve years of experience. He met Student last December when he began providing her services. He described Student as being totally blind and found her to be a sensory learner. In working with Student he started by trying to attract her to tactile and auditory stimuli. He works on getting her to reach for things. He has provided equipment such as toys that make noise and he consults with the teachers and service providers as needed. As of the second day of hearing (September 24, 2008) when he testified, Mr. David had yet to begin providing Student’s services for the 2008-2009 school year. School had started September 2, 2007. The reason that he has not yet begun providing Student’s services is that he did not get his contract to Mr. Stone at the beginning of the year. When he does begin working with Student he will work on auditory location and tactile stimulation.
When Mr. David works with Student he talks to her constantly and is very descriptive about what he is doing and about their surroundings. He stated that the constant description is very important to Student. He has consulted with the occupational therapist, the speech language pathologist, and Deb Rizzo. Mr. David is not a mobility specialist and is not qualified to recommend mobility services. He thinks that the services that he provides Student (2 x 30 minutes per week) are sufficient to meet her needs. (David)
22. Steven Stone is the Executive Director of Special Education for the Dracut Public Schools. He has a Master’s degree in special education and a C.A.G.S. in special education administration/educational leadership. He is familiar with Student due to her complex presentation. He was aware of Student’s injury in February 2007. On March 27, 2007, he asked the principal for information about the incident and did not hear anything for the rest of the year. From March 2007 until the end of the school year he was not aware that Student was out of school. When he learned Student had been out he was concerned, but did not consider filing a request for a hearing at the Bureau of Special Education Appeals. He believed Student was being denied a free appropriate public education during this time. He acknowledged that there was a delay in setting up the MGH evaluations and the Carroll School evaluation that he agreed to fund. He attributed the delay to the “usual back and forth” between the school department and billing departments. He was not concerned that the evaluations took so long because in his experience and as he always advised parents, it always took several months when Parents sought evaluations in Boston. (Stone)
Mr. Stone is aware that Student’s communication ability is quite limited and that she responds to auditory communication that goes on around her. He was aware that the speech language pathologist and teacher were not working on communication skills with Student. He stated that the Team tried to rectify that with the most recently proposed IEP that had been rejected. Mr. Stone also acknowledged that Student’s last accepted IEP contained a speech language objective that Student was to engage in language stimulation exercise for five minutes or more per session. He was aware that that had not been happening and that the speech language pathologist working with Student has just been feeding Student.
Mr. Stone heard most of Dracut’s service providers who work with Student testify that Student engages in behaviors including hitting her face so hard that she causes bruising and sometimes bleeds from the mouth and pounds on her chest. He is not aware of Dracut ever having assessed this behavior. Additionally, he was not aware of any formal vision assessment being done of Student since the prior teacher of the visually impaired was in Dracut, despite the fact that Student’s vision had decreased. Thomas David had not done any formal assessment of Student and had not written any report because the Carroll Center for the Blind was assessing Student. Mr. Stone was concerned that Mr. David had recently told him that the Carroll Center had not provided as much information as he had anticipated. Mr. Stone planned to speak to Mr. David to determine whether Dracut needed to have an additional evaluation done of Student’s vision needs. He said he would defer to Mr. David’s recommendations for a service provider but would likely use the Perkins School for the Blind or some institution other than the Carroll Center to do the evaluation.
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)8 and the state special education statute.9 As such, she is entitled to a free appropriate public education (FAPE). Neither her status nor her entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs10 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).
Additionally, the student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs11 . 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.
As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student12 , through “personalized instruction with sufficient support services …”13 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Parents are seeking relief, and thus have the burden of persuading the hearing officer of their position.
Student’s eligibility for special education services is not in dispute, nor is her profile. The dispute centers on the appropriateness and sufficiency of the services provided to Student during the 2006-2007 and 2007-2008 school year and whether Dracut complied with state and federal law with respect to evaluations and IEPs. Additionally, Parents assert that Student’s 504 rights were violated when Dracut failed to provide a wheelchair accessible van on four occasions during the 2006-2007 school year.
The first issue raised by Parents pertains to the independent evaluations Dracut agreed to fund by MGH and the Carroll Center. Parents allege that Dracut did not comply with mandated timelines for completing the evaluations. In fact, Dracut agreed to fund the evaluations in August 2007 and the MGH evaluations did not take place until January 2008 and the Carroll Center evaluation was done in February 2008. The Massachusetts regulations pertaining to independent education evaluations require that “Whenever possible, the independent education evaluation shall be completed and a written report sent no later than 30 days after the date the parent requests the independent education evaluation.” 603 CMR 28.04(5)(e). Clearly, the evaluations took longer than the 30 days suggested by the regulation. However, Parents were not able to meet their burden of showing that Dracut caused the delay in the evaluations. Although their exhibits contained e-mails between Mother and Mr. Stone regarding the length of time it was taking for the contracts between Dracut and the providers to be signed, the e-mails did not establish that Dracut, and not the providers, caused the delay.
The record shows that Dracut received the MGH evaluations on February 28, 2008 and received the Carroll Center evaluation on April 14, 2008. (S-12, S-13) The Team convened to consider the reports on April 29, 2008. With respect to the requirements for reviewing the evaluations, the regulations require that
[w]ithin ten school days from the time the school district receives the report of the independent education evaluation, the Team shall convene and consider the independent education evaluation and whether a new or amended IEP is appropriate. 603 CMR 28.04(5)(f)
Due to the April vacation schedule, Dracut met the deadline with respect to the Carroll Center evaluation. However, with respect to the MGH evaluations, Dracut was approximately six and one half weeks late in convening the Team. There is no evidence that the Parties agreed to the late scheduling of the Team meeting. This is a clear violation of state regulation by Dracut.
The second issue raised by the Parents is whether Dracut violated Student’s section 504 rights by failing to provide a wheelchair accessible van on four occasions during the 2006-2007 school year. Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794, prohibits discrimination on the basis of disability in programs or activities that receive federal funding, including public elementary and secondary educational programs. In pertinent part, the statute states:
[N]o otherwise qualified individual with a disability… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….
29 USC Sec. 794(a); 34 CFR Sec. 104.4(a)
To establish a Section 504 violation, a plaintiff must show:
(1) that the student is disabled;
(2) that the student is “otherwise qualified” to participate in school activities;
(3) the school or the board receives federal financial assistance; and
(4) the student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.
A.S. and W.S. v. Trumbull Board of Education , 414 F.Supp.2d 152 (D.C. Conn. 2006) ( citing Gabel ex rel. L.G. v. Board of Educ. of Hyde Park Central School Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005) (citing D’Amico v. City of New York, 132 F.3d 145(2d Cir. 1998)). Whereas the IDEA focuses on the content of a student’s educational program, Section 504 combats discrimination and safeguards “equal access to the school’s programs.” J.D. ex rel. J.D., 224 F.3d at 70; see Gabel ex rel. L.G., 368 F. Supp. 2d at 333-34.
Dracut conceded that it did not provide Student with a wheelchair accessible van on four occasions during the 2006-2007 school year. As such, it has admitted that Student was not provided with “equal access to the school’s programs.” Since that time, Dracut has remedied the situation by assuring that there is a wheelchair accessible van available every time there is a field trip in the Lifeskills class. Both Mr. Generoso14 and Ms. Rizzo testified that the violation had occurred and that Dracut had taken steps to ensure that it would not happen again. Parents have not requested any specific relief for this violation other than a finding that Dracut violated Student’s rights on these four occasions which I so find.
The third issue before me is whether Dracut provided Student with a free appropriate public education during the 2006-2007 school year. Since there was not a great deal of evidence specific to the service delivery during this school year, a good starting point is the incident in which Student was injured on February 16, 2007 and Dracut’s actions and inaction following the injury. When Student was injured at school and Dracut was not able to inform Parents of how she was injured, Parents were understandably concerned. Student is non-verbal and is not able to see. She was not able to tell Parents what had happened to her. Dracut was not responsive to Parents when they continuously raised their concern for Student’s safety. Parents continuously requested a meeting with all of the staff who had been with Student on the morning of the injury. Dracut continuously informed Parents that certain staff members were absent or that others were no longer employed by Dracut or the bus company. Dracut did not even provide Parents a copy of the incident report until August 2007, although Parents had requested the report since February 2007.
Parents informed Dracut of their intention to remove Student from school due to their concerns for her safety during the March 28, 2007 meeting. Dracut did not take any steps to assure Parents that Student could be educated safely if she returned to school. In fact, the only contact Dracut initiated with Parents after Student stopped attending school was a phone call by the vice-principal reporting that Student was not at school shortly after she stopped attending. Student did not receive any services from Dracut from March 29, 2007 until October 10, 2007 when she returned to school.
Mr. Stone testified that he was not even aware that Student had not returned to school after March 28, 2007 until some time in the summer of 2007. However, even when he became aware of Student’s lengthy absence, he took no action. He did not return Parents’ phone calls or e-mails until Mother contacted the superintendent to report his unresponsiveness. Parents had to repeatedly request a meeting before one was finally scheduled in August.
Even after Parents met with Mr. Stone and Mr. Generoso in August 2007, nothing was done to ensure Student’s prompt return to school. Student was not offered any home-based therapies despite having been out of school for all of April, May, and June and not receiving any summer services. Mr. Generoso testified that he did not know why it took so long for Dracut to prepare for Student’s return to school. He also candidly stated that he saw no reason why the agreement reached with Parents could not have been made in April, immediately after Parents removed Student from school. His only explanation for the amount of time that it took for him to commit to providing “safety measures” was that he was new to Dracut High School (he was hired in July 2007) and he did not want to commit to anything that Mr. Stone and Ms. Rizzo “could not or would not do.”
School districts have a duty to assure that eligible special education students are provided with a free appropriate public education. Massachusetts special education regulations require that if the school district is unable to obtain parental consent to a placement in a special education program subsequent to the initial placement, or the parent revokes consent to said placement the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.0815 .
In the instant case, Dracut did not comply with the regulation. It did not consider either with or without parental input whether Student’s remaining out of school would result in a denial of FAPE to the Student. Even if Parents had been unwilling to engage in discussions with Dracut, which they were not, Dracut was obligated to make use of the dispute resolution procedures at the Bureau of Special Education Appeals to ensure that Student would receive a free appropriate public education. Mr. Stone testified that he did not know Student had been out of school until the summer. He then testified that when he learned she had been out of school he was concerned and that he believed Student was being denied FAPE when she was out of school, but he did not consider filing with the BSEA. Instead, Dracut allowed Student to remain out of school without any services for the last three months of the 2006-2007 school year, the summer of 2007 and approximately six weeks in the beginning of the 2007-2008 school year. This was a significant procedural violation, especially given Student’s significant needs. It is also my basis for determining that Dracut failed to provide Student with a free appropriate public education during the 2006-2007 school year.
Even when Student returned to school on October 10, 2007, Dracut was not able to provide all of the services required by her last accepted IEP16 . Mr. Stone testified that Dracut High School did not have a speech language pathologist until January 200817 . He was able to obtain the services of a speech language pathologist from another Dracut school to provide services to Student once per week. However, that speech language therapist did not begin providing services to Student until October 22, 2007. Although Student’s last accepted IEP required two sessions of vision therapy per week, Dracut did not begin providing Student’s vision services until December 2007, two months after Student had returned to school after receiving no services for four months. Dracut’s former teacher of the visually impaired had retired and although Dracut assured Parents in a September 12, 2007 letter that it had hired a teacher of the visually impaired, Student did not receive his services until December 2007. (P-28(33)) Student received her first occupational therapy consult on October 23 and missed her physical therapy session on the first two Mondays she was in school.
Although inability to fill vacant positions poses a difficulty for districts, it does not release them from their obligation to provide a free appropriate education. In some circumstances the provision of compensatory services to a student in the future is an appropriate solution to a staffing dilemma. However, it is not an appropriate solution when a Student with significant needs has already been deprived of services for a period of time as in this case. Dracut had sufficient time to prepare for Student’s return to school. When Dracut realized that it did not have sufficient staff to provide for Student’s necessary services it should have either offered an alternative placement that could meet Student’s needs or sought out private therapists to provide the needed services. Dracut was not even prepared to provide Student services with their existing staff of therapists. Given the amount of time that transpired between August, when Parents met with Mr. Stone and Mr. Generoso, and October, when she returned to school there is no excuse for Dracut not being able to provide her all of the therapies she required immediately upon her return.
In addition to the aforementioned shortcomings, I find that Dracut did not comply with the last accepted IEP during the 2007-2008 school year. Ms. Kershlis began providing services to Student in January 2008. She testified that she feeds Student twice per week pursuant to her understanding of Student’s last accepted IEP. However, Student’s last accepted IEP includes goals for Student to participate in language stimulation activities and oral exercises. It also indicates Student will tolerate various textures for up to 15 seconds. It does not include any goals pertaining specifically to feeding. Ms. Sandoval, who provided services once per week from October until December 2007 noted that she had mostly provided feeding services and some days provided some exploratory communication services.
The last accepted IEP requires a consult between the mobility and physical therapy instructors. There is no indication that a mobility instructor has ever consulted with the physical therapist or anybody else at Dracut during the time period before me. This is especially concerning considering Mother’s testimony that she has seen regression in Student’s mobility skills during the past two years. Additionally, the MGH evaluators recommended that a “mobility-vision specialist is an absolute must for school.” Although Student has received some services from a teacher of the visually impaired, he testified that he is not a mobility specialist.
Based on the foregoing, I find that Dracut did not comply with Student’s last accepted IEP during the 2006-2007 school year.
Parents also assert that Dracut did not provide the Student with a free appropriate public education during the 2007-2008 school year. Dracut argued that it was constrained in what it could provide by the inadequacy of the last accepted IEP. To determine the validity of this argument, I look to the sufficiency of the IEP proposed for the 2007-2008 school year and rejected by the Parents. I find that even if Parents had accepted the 2007-2008 IEP, it would not have provided appropriate services for Student. Although the B grid contains services in communication 2 x 30 minutes per week, the goal and benchmarks indicate that communication was not actually contemplated by the IEP. The annual communication goal relates to oral stimulation and toleration of textures. The benchmarks all relate to feeding and not communication. Despite Student’s complete lack of any means of communication, her IEP failed to address her significant need.
Based upon the testimony of Student’s direct service providers, there are many areas of concern with respect to the provision of services to Student. Perhaps most striking, is the lack of information about how Student’s vision impacts her ability to learn and function, especially in light of testimony that she previously had some limited functional vision until approximately two years ago. Karen Hefler had done four occupational therapy evaluations of Student and noted the difference in Student’s reach now as opposed to when she had limited vision. She noted that student’s decreasing vision has impacted her skills and her progress. Ms. Kershlis testified that Student’s vision interferes with her feeding. She found that Student’s lack of vision and resultant lack of imitation skills make it difficult to work with her. She did not indicate that she had received any consultation from the teacher of the visually impaired. In fact, most of Student’s direct service providers have no prior experience working with a student with a visual impairment.
Although Dracut is now providing Student with services from a teacher of the visually impaired, Mr. David, it was not clear from his testimony that he is fully aware of the extent of Student’s needs. He has not formally assessed her because Dracut was awaiting the Carroll Center evaluation. In response to the hearing officer’s query as to whether the MGH and Carroll Center evaluations provided Dracut with sufficient information to provide an appropriate program for Student, Mr. Stone indicated he had one concern. He explained that Mr. David had recently informed him that the Carroll Center evaluation had not provided as much information as he had anticipated. When asked what he intended to do about the lack of information regarding Student’s vision-related needs Mr. Stone indicated that he would determine whether Dracut needed to do an additional evaluation in that area. He stated that he would not use the Carroll School for such an evaluation, but would use the Perkins School for the Blind or another institution. (See testimony of Steven Stone)
Another area of critical concern is the lack of any kind of communication services being provided to Student. Although Dracut argued that it attempted to rectify the lack of communication services with the most recent IEP (for the 2008-2009 school year) that IEP is not before me. Additionally, as I have found, communication is an area that should have been consistently addressed in each of her prior IEPs and was not. Student is seventeen years old, non-verbal, and does not have any functional means of communicating her needs, feelings, or desires. Dracut did not even adequately assess Student’s needs in this area prior to 2008 when it agreed to fund Parents’ independent evaluation at MHG. Prior to the MGH evaluation, the most recent three-year evaluation of Student’s speech language needs was completed in May 2006. The report of the evaluation was less than one page long, contained no reference to any formal evaluations completed and contained no recommendations. Instead, it recited Student’s profile, contained approximately four sentences describing Student’s receptive and expressive language skills and recommended that she receive speech and language services once per week for thirty minutes, focusing on communication and eating/swallowing. (See S-19) It is no wonder that Student’s speech and language needs were not being adequately addressed given the perfunctory evaluation with which the Team drafted Student’s 2006-2007 and 2007-2008 IEPs.
Many of the witnesses from Dracut and MGH testified that Student often hits herself in the face and pounds on her chest. Ms. Rizzo noted that Student often hits her face and leaves bruises and pounds her chest a lot. She indicated that this behavior has increased since Student returned to school in 2007. Ms. Baker mentioned that Student has bled from the mouth from hitting her face and has previously injured her eye. Ms. Sandoval noted that Student hits her chest and that she moves her arms around a lot which interferes with her feeding. Both Ms. Rizzo stated that these behaviors are a “sensory thing” and were self-stimulatory. Despite the many service providers who noted this self-injurious behavior, Dracut never sought to assess or to improve this behavior. Ms. Santarpio did not mention working on this sensory issue during her consultation. Additionally, Ms. Kershlis noted that Student has become more defensive to touching, but did not indicate that she had sought any further evaluation of this new behavior that interfered with her ability to provide services to Student.
All of the independent evaluators and some of Dracut’s staff mentioned Student’s copious drooling. However, Dracut has not assessed this issue or tried to reduce it. The MGH evaluators recommended an oral motor feeding and stimulation program as a means of reducing Student’s drooling.
Based upon the foregoing, I find that Dracut did not provide Student with a free appropriate public education in the least restrictive environment during the 2007-2008 school year. I further find that Dracut failed to assess Student in all areas of suspected need.
Having found that Dracut failed to provide Student with a free and appropriate public education during the 2006-2007 and 2007-2008 school years and having found that Dracut failed to implement Student’s last accepted IEP during the 2007-2008 school year, I now turn to the appropriate remedy. Parents’ closing argument indicates that they are seeking a day placement of Student at the Perkins School for the Blind. However, Parents did not present any evidence regarding the Perkins School for the Blind other than that Mother had visited it. They presented no evidence about the programs offered by Perkins nor any testimony from any clinician recommending the Perkins School for the Blind as an appropriate placement for Student.
On the other hand, Dracut has failed to provide Student with a free appropriate public education for the 2006-2007 and 2007-2008 school years resulting in Student missing a significant amount of time from school and missing critical therapies. Dracut has failed to assess Student in all of her areas as need as evidenced by their failure to address Student’s communication skills, self-injurious behaviors, drooling, and to appropriately assess her vision needs. Although the 2008-2009 school year is not before me, I find it telling that although the school year had been in session for three weeks as of the second day of hearing, Student had yet to receive any services from the teacher of the visually impaired. I find that based upon its past and continuing actions, Dracut is unable or unwilling to provide Student with a free appropriate public education. Therefore, Dracut shall provide Student with an out-of-district placement.
Because Parents have not provided any information regarding the appropriateness of Perkins for Student, I am unable to determine whether Perkins is the appropriate placement to address all of her needs. Additionally, although the MGH evaluations provide helpful updated information regarding Student’s functioning in the areas of speech language, occupational therapy and physical therapy, the record does not contain any evaluations that address all of Student’s needs as a Student with multiple handicaps or an evaluation that addresses how to adapt instruction of Student given her loss of vision. Therefore, I am ordering Dracut to immediately arrange for an extended evaluation of Student at the Perkins School for the Blind or a similar facility. Although the record does not contain specific information about the Perkins School for the Blind, Mr. Stone himself indicated that he would have Student evaluated at Perkins or a similar institution if Mr. David deemed it necessary to obtain an additional evaluation of Student. Also, the MGH evaluators referred to Perkins as an institution that provides services to students with visual impairments. If Perkins is not able to complete an extended evaluation, Dracut shall confer with the MGH therapists to locate another facility that is capable of conducting an extended evaluation of the needs of a student with multiple disabilities and a visual impairment.
Additionally, Dracut shall provide Student with an independent Oral Motor/Feeding re-evaluation as recommended by the MGH evaluators. Parents and Dracut’s providers testified that Student’s feeding skills have regressed and this evaluation is necessary to determine how to address Student’s feeding needs. Dracut shall first determine whether Perkins is able to provide this evaluation as part of Student’s extended evaluation. If not, then Dracut shall look to another independent evaluator to complete the evaluation.
Dracut shall provide Student with an independent mobility evaluation. Student was not provided with the mobility services required by her last accepted IEP and the MGH evaluators recommended a mobility evaluation. Dracut shall first determine whether Perkins is able to provide this evaluation as part of Student’s extended evaluation. If not, then Dracut shall look to another independent evaluator to complete the evaluation.
The MGH evaluators recommended that Student receive a 12 month program. Dr. Morgan’s report indicated that Student requires a twelve month program to avoid regression of abilities that can commonly occur in children with neurological conditions when services are reduced or withdrawn. Dracut did not rebut this evidence. In fact, Mr. Fiore testified that after summer vacation it takes Student two weeks to return to “walking mode.” A twelve month program is appropriate given that Student is seventeen years old and has not received an appropriate education during the last two school years.
Many of Student’s direct service providers and evaluators noted that Student seems to respond to music. In fact, one of the members of the April 28, 2008 Team18 reported that music therapy may be beneficial for Student. He/she regularly sees Student clap her hands and vocalize during chorus. Therefore, Dracut shall provide Student with a music therapy evaluation and shall provide music therapy if the evaluator deems it beneficial to Student.
At the end of the extended evaluation, the Team, including service providers from the setting of the extended evaluation shall convene to revise Student’s IEP and to recommend out-of-district placements. Dracut shall place Student at the out-of-district placement deemed appropriate by the Team. If there is a lack of consensus among the Team, the recommendations of the extended evaluators shall prevail.
In addition, Student is entitled to compensatory services for the two years that I have found that she did not receive an appropriate education. Parents did not provide any evidence regarding what services would appropriately compensate Student for two years of insufficient services. I have no way of making this determination based upon the record before me. Therefore, at the end of the extended evaluation, the Team, including service providers from the extended evaluation site, shall convene to make recommendations as to the necessary services to compensate Student. If there is a lack of consensus among the Team, the recommendations of the extended evaluators shall prevail.
ORDER
Dracut shall immediately provide Student with an extended evaluation at the Perkins School for the Blind or a similar facility.
Dracut shall provide Student with an independent Oral Motor/Feeding re-evaluation.
Dracut shall provide Student with an independent mobility evaluation.
Dracut shall convene a Team consisting of Dracut personnel and the providers who implement the extended evaluation for the purpose of revising Student’s IEP and determining an appropriate out-of-district, twelve month program. If there is a lack of consensus between Team members, the recommendations of the extended evaluators shall prevail.
Dracut shall provide Student with compensatory services as recommended by the providers of the extended evaluation.
Dracut shall provide Student with a music therapy evaluation and shall provide music therapy if it is recommended by the evaluator.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: November 7, 2008
1
Week refers to a five day cycle.
2
Last year there were thirteen students in the program.
3
Ms. Rizzo testified that although Student doesn’t tolerate being in the school store well, she does it because it is part of what they do in the program.
4
The “safety measures” were all things that were either already in Student’s IEP or that Dracut was providing prior to Student’s injury. (Generoso, Stone, P-28(29)
5
There were no vision services available when she returned to school. Dracut’s previous teacher of the visually impaired had retired prior to the 2007-2008 school year. (Mother, Stone)
6
Mr. David ordered many of the materials suggested by the Carroll Center. However, he did not order them until January 22, 2008 for the 2007-2008 school year and the majority of items were ordered on June 24, 2008 for the 2008-2009 school year.
7
The aide did not testify. Ms. Rizzo did not testify as to whether the stretching was occurring on all the days that Mr. Fiore did not stretch Student.
8
20 USC 1400 et seq .
9
MGL c. 71B.
10
20 USC 1412(5)(A)
11
20 USC 1412(5)(A); 603 CMR 28.02(12)
12
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
13
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).
14
Mr. Generoso was not yet the principal of Dracut High School when the violation occurred, but was aware of the issue.
15
603 CMR 28.08 is the Continuum of Options for Dispute Resolution section of the Massachusetts special education regulations and includes a description of local school district procedures, state education agency procedures and Bureau of Special Education Appeals procedures (including mediation and hearings) for resolving disputes.
16
Although Parents refer to Dracut reducing Student’s services despite their rejection of the IEP, the issue is more clearly stated as Dracut being unable to secure the staffing necessary to provide services to Student as required by her IEP and thus failing to provide Student’s necessary services.
17
Mr. Stone sent Parents a letter, dated September 12, 2007, informing them that Dracut had not yet hired a speech language pathologist and assuring them that Dracut would keep track of the missed services and provide compensatory services once a speech language pathologist was hired.
18
The Team member’s name is illegible, his/her last name appears to be “Grande”. See S-10, pg. 5 of 7.