COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Taunton Public Schools and Solomon1
BSEA #12-1212
Decision
This Decision is issued pursuant to 20 U.S.C. §1400 et . seq. (IDEA), 29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973), M.G.L.c. 71B (chapter “766”), M.G.L.c. 30A (The Massachusetts Administrative Procedures Act) and the regulations promulgated in accordance with these statutes.
The Hearing in this matter was held on November 30, 2011 at the Friedman Middle School in Taunton, Ma. Present for all or part of the proceeding were:
Mr. “S” Parent
Sheilah Reardon Director of Special Education, Taunton Public Schools
Amber Lavalley BCBA, Taunton Public Schools
Laura Mansfield Speech-Language Pathologist, Taunton Public Schools
Daniel Fagan Principal – East Taunton Elementary School
Marguerite Mitchell Attorney for Taunton Public Schools
Pauline Bailey Court Reporter
Lindsay Byrne Hearing Officer, BSEA
The official record of the Hearing consists of documents submitted by the Taunton Public Schools (School) labeled S-1 through S-41 and approximately 6 hours of recorded oral testimony.
The Parents appeared pro se through Mr. S. Ms. S did not attend the hearing. The Parents did not submit any proposed exhibits in advance of the Hearing. At the Hearing the Parent was unable to identify any documents previously known to the school and not otherwise contained in the administrative record that he wished to offer into evidence. Thus there are no Parent proffered documents in evidence. Furthermore, the Parent did not produce any witnesses and declined to give any sworn testimony. The Parent voluntarily left the proceedings during direct examination of the School’s first witness. Although invited to rejoin the Hearing in progress at anytime, the Parent did not return to the Hearing. The School, the moving party in this appeal, chose to continue presentation of its evidence on the issue on which it bore the burden of proof. At the conclusion of testimony of the School’s witnesses the school made an oral closing argument. The Hearing Officer determined that closing the Hearing record at the time was appropriate because 1) the Parent had not indicated that any relevant evidence supporting his position existed or could be produced within a reasonable period of time; 2) the Parent had not assessed the evidence on behalf of the School’s position nor requested additional time to formulate a response; 3) the Parent had exhibited an inability or unwillingness to conform to BSEA Hearing Rules and norms of decorum observed in quasi-judicial proceedings, and most importantly; 4) the student has been without a free appropriate public education since October 28, 2011. The Hearing Officer therefore determined that time is of the essence for resolution of this dispute, that delay in identification of an appropriate special education program for the student would pose a significant risk of educational harm to the student, and that holding the hearing record open for further evidence or action would serve no useful purpose. The Hearing record closed on November 30, 2011.
Procedural History
Taunton Public Schools requested this BSEA Hearing on August 10, 2011. The School sought a determination that the Student’s placement in a substantially separate classroom operated by the South Coast Collaborative, as set out in an October 2010 through October 2011 IEP accepted by the Parents, remained both the least restrictive appropriate special education program for the student and constituted his “stay put” placement. The Parents had withdrawn the student from the Collaborative program in June 2011 and had not sent him to the available summer program. The School requested a prehearing conference in lieu of the formal due process proceedings scheduled for August 29, 2011. At the prehearing conference the parties agreed to conduct an extended evaluation of the student at the Chamberlain School in Taunton. The matter was placed “off-calendar” pursuant to BSEA Rule IV. The student was placed in a substantially separate classroom for the diagnostic period. The proposed evaluations were completed and the Team reconvened on October 19, 2011. On October 24, 2011 the School proposed an IEP providing for the student’s placement in a substantially separate life skills classroom at the East Taunton Elementary School. The School then requested a prehearing conference, automatically removing this matter from “off-calendar” status. A prehearing conference was held by telephone on November 1, 2011. The parties agreed on the issues for resolution at the hearing (set out below) and set the hearing dates for November 30 and December 1, 2011. On November 4, 2011 the Hearing Officer issued a scheduling Order listing the issues and indicating that all proposed documents and witness lists were to be exchanged no later than November 18, 2011. On November 15, 2011 the Hearing Officer granted the Parent’s Motion to change the location of the Hearing to Taunton. On November 16, 2011 the Hearing Officer vacated the Parent’s request for issuance of subpoenae on the grounds of irrelevance and denied the Parent’s request for appointment of an independent observer on the grounds of lack of jurisdiction. On November 18, 2011 the Hearing Officer issued an order clarifying the student’s “stay put” placement at the previously accepted South Coast Collaborative classroom and denying the Parent’s request for an “Emergency Placement” with a certified ABA specialist from the ‘APEX’ agency.” On November 28, 2011 the Hearing Officer issued a PreHearing Order reiterating the issues for resolution at hearing, setting out evidentiary, procedural and behavioral expectations, and denying the School’s Motion to strike non-evidentiary written submissions from the Parent. On November 29, 2011 the Hearing Officer denied the Parent’s same day request for a postponement. The Hearing began on November 30, 2011. The Parent indicated that he had received all notices and Orders sent by the BSEA. He stated that he no longer wished to pursue the issues he had outlined during the November 1, 2011 prehearing conference, including a private out-of-district school placement for Solomon. Instead the Parent stated that he wished to receive financial assistance for home-schooling Solomon. Noting that the primary issue brought by the moving party remained one of the appropriate placement, that the student was not attending school and that no home schooling plan or request had been filed with the district by the Parent, the School objected to a change in issues on the day of the hearing. Noting that the Parents’ heretofore unpresented issue concerning home schooling support could be reserved for a different hearing should the Parent decide to pursue it, the Hearing Officer ruled that the hearing would proceed on the issues previously set out in the Pre-Hearing Orders. For the purpose of this Hearing the Hearing Officer notes that the Parent had stated his most significant concerns were: Solomon’s perceived lack of progress in speech acquisition and 2) perceived lack of “highly qualified” special education service providers.
ISSUES
1) Whether the October 2011-2012 Individualized Education Plan proposed by Taunton Public Schools is reasonably calculated to provide a free, appropriate public education to Solomon?
2) If not, whether Solomon requires an individually tailored special education program consisting of one-to-one ABA services in a private setting delivered by a non-employee contracted service provider and one-to-one speech/language therapy in a private setting delivered by a non-employee contracted service provider with a minimum of ten years of experience working with students with disabilities similar to those of Solomon, in order to receive a free, appropriate public education?
3) Whether Taunton Public Schools failed to deliver a free, appropriate public education, or committed any procedural violations of the IDEA and/or M.G.L.c 71B and/or Section 504 resulting in a deprivation of a free, appropriate public education to Solomon since May 2011? and if so
a) Whether those procedural violations were related to discrimination on the basis of Solomon’ disability, or
b) Whether those procedural violations were related to retaliation for the Parent’s protected advocacy activities?
Statement of the Evidence
The Parent did not produce any evidence at the hearing. Therefore the Hearing Officer viewed the admissibility and the probative value of the School’s proferred evidence with heightened scrutiny. A summary of the pertinent evidence follows:
1. Solomon is an 8 year old Taunton resident. Solomon is eligible to receive special education services as a result of diagnosed disabilities of intellectual impairment, communication impairment and autism spectrum disorder (S-4). Overall, Solomon functions at a 12-24 month cognitive/communication level. He is not verbal but has some emerging communication skills using gestures, eye gaze and pulling. Solomon also uses augmentative communication systems such as PECS and the Mercury Speaking Dynamically Pro. He can match and sequence the alphabet and numbers to 30. Both fine and gross motor skills are below age expectations. Solomon demonstrates weak sensory regulation skills which interfere with his attention and functional performance. He is not toilet trained. He feeds himself but does not use utensils. He demonstrates inconsistent attention to familiar adults, but no awareness of peers. Solomon has shown the capacity to make slow progress in the acquisition of foundational functional academic, communication and behavioral skills since he began receiving special education services through the Taunton Public Schools in preschool. (S-3; S-9; S-10; Mansfield)
2. During the 2010-2011 school year Solomon attended a substantially separate class operated by the South Coast Collaborative in the Palmer River School. In addition to the functional academic/social/behavioral instruction in the classroom, Solomon received direct 1:1 speech/language therapy for three thirty minute sessions per week, direct 1:1 occupational therapy for two thirty minute sessions per week and 1:1 adaptive physical education for two thirty minute sessions. The service providers reported that Solomon was making progress at the expected rate in that setting. (S-3; S-9; S-10).
3. In June 2011 the Parents withdrew Solomon from the Collaborative program after a disagreement about the requirement for a physician’s order for school-based administration of Tylenol. They notified Sheilah Reardon, Director of Special Education for Taunton, that they would not return Solomon to the Collaborative or to any public school program. Solomon did not attend either the extended year component of the Collaborative program or the special education summer program available through the Taunton Public Schools. (Reardon)
4. Taunton held a Team meeting on July 13, 2011 to address the Parents’ concerns about the Collaborative program. The Parents attended but objected to the presence of Collaborative staff. The Parents left the meeting early. The Team discussed Solomon’s then current functioning and programming alternatives. The accepted IEP for Solomon ran through October 2011. Taunton proposed that Solomon continue to receive the accepted special education services in a different substantially separate classroom operated by a different Collaborative. On July 29, 2011 Taunton sent the Parents an N-1 form summarizing the discussion held at the July 13 th Team and requesting their consent to release information about Solomon to two other Collaboratives: Pilgrim Area Collaborative and BiCounty Collaborative. The consent forms were not returned. (Reardon; S-23; S-24; S-25; S-26)
5. Taunton filed a request for a BSEA Hearing on August 10, 2011 seeking a determination that the then current accepted IEP for Solomon would provide him with a free appropriate public education. (Administrative Record) The Hearing date of August 29, 2011 was converted to a pre-hearing conference at Taunton’s request. At the prehearing the parties agreed to an extended evaluation of Solomon to be conducted by Taunton personnel at the Chamberlain Elementary School beginning the first day of the new academic year. Solomon was placed, with a 1:1 paraprofessional assistant, in a substantially separate second grade classroom geared toward students with developmental delays. During the diagnostic period Solomon was formally evaluated in the areas of: psycho-educational functioning, activities of daily living; applied behavior analysis; speech/language; occupational therapy and adaptive physical education. (S-27; S-28; S-29; S-30; S-31) He continued to receive the direct special education services set out in the last accepted 2010-2011 IEP, including 1:1 ABA services 2½ hours per day. (S-32; Lavalley2 )
6. Laura Mansfield is the speech-language pathologist responsible for both evaluating Solomon as part of the diagnostic placement and for providing his direct speech-language services in the Chamberlain school placement. Ms. Mansfield received her Masters degree in speech-language pathology in 2001. She pursued additional coursework in working with students with moderate-severe disabilities, leading to advanced licensure. She has a certificate of Clinical Competence (CCC) through the American Speech and Hearing Association (ASHA). She has worked at the May Institute in a residential program for students with autism, at the Braintree Rehabilitation Center, providing direct outpatient speech-language therapy to both child and adult clients, at the Mansfield Public Schools where she set up a classroom geared to students with autism spectrum disorders, and for the past 5½ years at Taunton Public Schools where she has been responsible for providing direct services, evaluation and consultation for students in both ASD and life skills programs. Ms. Mansfield developed the first PECS book Solomon used, and still uses. (Mansfield)
7. Ms. Mansfield testified that during the diagnostic period in September and October 2011 she worked 1:1 with Solomon in a separate setting. They concentrated on targeting sound production and working on improvement in following directions and indicating needs/wants. She also worked to improve Solomon’s use of the PECS system and to assess responses to augmentative communication devices and software. She consulted with the classroom teacher four to five times over the course of the diagnostic period. She worked daily with Solomon’s 1:1 paraprofessional, with his 1:1 ABA therapist and with the supervising BCBA (Board Certified Behavioral Analyst). Ms. Mansfield stated that the 2010-2011 South Coast Collaborative progress reports accurately set out Solomon’s communication strengths and weaknesses. (S-9; S-10) His severe language deficits affect all areas of receptive and expressive communication and comprehension. Solomon has emerging concrete communication skills at the 12-26 month level. He can request a preferred activity by eye gaze or pulling. He could imitate some vowel sounds and could use the PECS system consistently. He responds to his name and to greetings. He also uses unconventional and self-injurious behaviors (e.g., crying, hitting head) to communicate displeasure or frustration. He has limited verbal output, as well as motor planning deficits which affect his capacity for speech production. Solomon does not communicate meaningfully for information or social exchange. (Mansfield; S-6)
8. Ms. Mansfield explained that she introduced a few augmentative communication devices to Solomon. In particular they worked with the Mercury programmed with Speaking Dynamically Pro and the Ipad programmed with a simple communication board, tic-pix, and a video recorder. Solomon demonstrated immediate progress in learning and communicative efficiency. He used the Mercury more successfully than the Ipad and than PECS alone. She recommended further evaluation of his augmentative communication needs in order to select a device that would help him grow over an extended period of time. (Mansfield; S-6; S-34; S-35; S-36)
9. Based on her direct work with Solomon, her formal speech-language evaluation, as well as her consultations with other service providers and evaluators, Ms. Mansfield concluded that Solomon was making progress commensurate with his disabilities in the fall 2011. She recommended that Solomon be placed in a classroom which would consistently address the development of functional communication skills across settings and activities. The classroom and service providers should use a multi sensory, total communication approach to develop Solomon’s intentional communication skills. He does not need daily direct speech-language therapy; he needs daily and consistent use and practice of language skills. Consistent with ASHA’s professional standards, which set out “best practices” for working with students such as Solomon whose communication skills fall within the severely impaired range, Ms. Mansfield recommended that Solomon receive 60-90 minutes of direct speech-language therapy per week with additional speech/language consultation time. (Mansfield; S-6)
10. Dr. John Dorn, a clinical and neuropsychologist for the READS Collaborative, conducted a diagnostic evaluation of Solomon on October 4, 2011. Based on his interview and observation of Solomon, the results of standardized intellectual functioning tests and the Parents’ responses to a standard Adaptive Behavior Scale, Dr. Dorn concluded that Solomon functioned in the lowest one percentile of the tested population and that Solomon’s intellectual impairment was the most significant influence on his academic and communication progress. Dr. Dorn also found that Solomon meets the criteria for Autism Spectrum Disorder. Dr. Dorn recommended that Solomon attend a specialized classroom program with a low student-teacher ratio and peers who have diagnoses and functioning levels similar to his. He also wrote that access to a sensory room and equipment would be an important component of an appropriate educational placement for Solomon. The classroom should use an ABA approach and there should be opportunities for discrete trial techniques. Finally Dr. Dorn recommended regular classroom consultation with Solomon’s speech-language pathologist. (S-4; Mansfield) Dr. Dorn shared his findings and recommendations with Taunton School staff at a scheduled post-evaluation meeting (S-33). The Parents declined to attend. (Mansfield)
11. On October 11, 2011 Ms. Mansfield met with Dr. Dorn. The Parents were invited to the post-evaluation consultation but telephoned that morning to say they would not attend. Ms. Mansfield agreed with Dr. Dorn’s conclusion that the primary disability affecting Solomon’s language acquisition is intellectual impairment. (Mansfield)
12. As part of the comprehensive extended evaluation Trevor Gagnier conducted an adaptive physical education assessment. He found that Solomon functioned in the below average range in both locomotor and object control skill development. He recommended that Solomon participate in adaptive physical education twice a week for thirty minute sessions (S-7).
13. Traci Silvia, a registered occupational therapist, conducted a formal occupational therapy evaluation over the course of three days in September 2011. She also provided direct occupational therapy services consistent with the previously accepted IEP during the diagnostic period. Ms. Silvia observed that Solomon could follow one step directions with verbal and physical prompts and that he engages in hand flapping or other self stimulatory behavior when not engaged in a task. Solomon can feed himself and prefers crunchy food. Solomon has good posture. Range of motion, muscle strength and midline cross are within the normal range. Although his sensory processing and modulation skills are impaired, Solomon enjoys deep pressure, proprioceptive input, and touch. Solomon does not demonstrate command of basic spatial or object characteristics . He requires assistance for all self-help skills. Ms. Silvia concluded that Solomon would benefit from fine motor strengthening activities. In addition to direct occupational therapy services twice weekly, Ms. Silvia recommended that Solomon have a consistent, structured routine, sensory activities, and paired visual/verbal cues prior to new activities.
14. Amber Lavalley has been a Board Certified Behavioral Analyst (BCBA) since 2008. She has more than ten years of professional experience and has worked with more than 1,000 students with autism spectrum disorders. After receiving a Master’s degree in Applied Behavioral Analysis from Northeastern University, Ms. Lavalley worked at the Center for Autism and Related Disorders in England. She then worked for two years in the Wisconsin early autism program, for 15 months as an assistant teacher at the May Institute (a school for students with autism spectrum disorders), 7 years as Regional Director of Beacon Services, a provider of community and school based ABA services, and 18 months as a BCBA for Applied Behavioral Learning Services. Ms. Lavalley joined the Taunton Public Schools in August 2010. She is responsible for: coordinating ABA services for students; supervising the district’s ABA programs; conducting assessments and planning programs for individual students; developing IEPS; conducting FBAs (functional behavior assessments); consultation to staff/classrooms; and training personnel. Ms. Lavalley worked directly with Solomon for one hour daily in accordance with the August 29, 2011 agreement between Taunton and the Parent. Ms. Lavalley testified that it was unusual for a BCBA to work directly with a student as that is typically the role of the ABA therapist under the supervision of the BCBA. In addition to her direct work with Solomon, Ms. Lavalley conducted a formal Applied Behavior Analysis Assessment known as “ABLLS” during the diagnostic period. Ms. Lavalley also worked on a daily basis with Solomon’s 1:1 paraprofessional, with his 1:1 ABA therapist, and with the classroom teacher. Ms. Lavalley consulted extensively with Ms. Mansfield, the speech-language pathologist, incorporating communication goals and augmentative communication devices into the ABA services. (Lavalley; S-5)
15. Ms. Lavalley testified that Solomon functions in the moderate range of autism spectrum disorders. He demonstrates relative strengths in cooperation, visual performance, motor imitation, receptive language and responsiveness. He demonstrates relative weaknesses in the areas of: vocal imitation, requesting, social interaction, play and self-care. Ms. Lavalley used the ABLLS format to assess Solomon in 24 skill areas. (S-5) In addition Ms. Lavalley collected data daily on goals set out in the governing IEP and on goals foundational to those goals or otherwise appropriate for Solomon (such as data on self-injurious behaviors and on augmentative communication system preferences) during the extended evaluation. (S-11; S-12; S-13; S-14; S-15; S-16; S-17; S-18; S-19; S-20; S-21; S-22) Ms. Lavalley testified that all the data was useful in developing goals and strategies for inclusion in Solomon’s new IEP. In particular, the data showed Solomon’s functional academic skills to be at the toddler/preschool level. It also showed that Solomon demonstrated no independent self-care skills, that his social skills with an adult communicator were far superior to his peer social skills, and that although he could use both, he preferred an augmentative communication device to the PECS system. Ms. Lavalley explained that data collection showed that Solomon made progress over the course of the diagnostic period in discrete skills taught and measured through the approach. She concluded that Solomon benefits from an ABA approach to teaching and that he needs both 1:1 instruction and practice, as well as the generalization, modeling and practice available through structured exposure to a group of similarly situated peers. Ms. Lavalley recommended that Solomon be placed in a substantially separate classroom with students at a similar-functioning level. The classroom should have a low student: teacher ratio, and a focus on developing self-care, communication, social, leisure and functional academic skills. The classroom should use an ABA approach to learning as Solomon has demonstrated that he learns effectively with this model of instruction. Ms. Lavalley initially recommended that Solomon receive 1 hour daily of direct 1:1 ABA services from an ABA therapist. (S-5) After the discussion at the Team meeting held on October 19, 2011 at which the results of the extended evaluation were presented, Ms. Lavalley changed her recommendation to 3 hours daily of direct ABA services. She explained that she increased the direct service hour recommendation to three hours daily because Solomon had demonstrated clear progress in learning with three hours daily during the diagnostic period and there was no reason to change. Ms. Lavalley, as the supervising BCBA, would continue to provide consultation, assessment and training to Solomon and his service providers for one hour weekly.
16. The Parents did not observe the setting or services for Solomon during September or October 2011. They did not request any additional information from the service providers. They did not attend the psychoeducational evaluation conference on October 11, 2011. (Mansfield, Lavalley, Reardon)
17. The Team convened on October 19, 2011 to consider the results of the extended evaluation. The Parents attended the beginning of the meeting but left during presentation of the first evaluation results. (Reardon, S-2; S-37) The remaining Team members discussed the formal evaluation results and the informal observations of staff who had worked directly with Solomon during the diagnostic period.
Ms. Mansfield recommended further evaluation in the area of augmentative communication. She also recommended increasing the amount of direct speech-language service Solomon would receive under a new IEP from her initial recommendation of three thirty minute sessions to four thirty minute sessions to ensure sufficient time for work on augmentative communication goals. This recommendation exceeds ASHA standards. Ms. Mansfield elaborated that Solomon does not need daily direct speech-language service for vocal communication. He does, however, need daily opportunities for practice. She agreed with the Team’s recommendation for placement in a classroom with students of similar functional level and learning needs, a focus on functional communication and academics, an emphasis acquisition of daily living skills, and access to a sensory room. (Mansfield; see also ¶6, 7, 8, 9, 10).
Ms. Lavalley also increased her recommendation for direct ABA services from 1 hour daily to 3 hours daily based on Solomon’s progress and the Team discussion. (Lavalley; see ¶14, 15) She agreed with Ms. Mansfield’s recommendation for an augmentative communication evaluation. She also agreed that Solomon would learn best in a small group classroom among students with similar functioning levels in which instruction would focus on activity of daily living skills, functional communication and functional academics. (Lavalley)
Both Ms. Mansfield and Ms. Lavalley testified that Solomon would derive greater educational benefit from participation in a classroom program than from solely 1:1 instruction because of the greater opportunities for realistic practice and generalization, and the capacity to address the weaker skills area such communication with peers. Both Ms. Mansfield and Ms. Lavalley recommended against home-schooling because of the lack of a peer group and the lack of experienced, highly skilled special educators that Solomon’s learning needs require. Both witnesses stated that it would be inappropriate and not educationally beneficial to continue Solomon’s placement in the substantially separate classroom he attended during the diagnostic period at the Chamberlain school. Both Ms. Mansfield and Ms. Lavalley endorsed Solomon’s placement in the Life Skills classroom at the East Taunton Elementary School. Both witnesses were familiar with the classroom having provided direct and consultative services to the classroom teacher and to prior or current students in the class. (Mansfield; Lavalley; S-2).
18. On October 20, 2011 Taunton sent the Parents a copy of the Team meeting notes and an “N1” summary of the Team meeting (S-2; S-38) Taunton also requested the Parents’ consent for an Augmentative Communication Evaluation to be conducted by Children’s Hospital (S-39). Consent was received on November 21, 2011. (Reardon)
19. On October 24, 2011 Taunton sent the Parents a copy of the IEP it developed at the October 19, 2011 Team meeting. The proposed IEP calls for Solomon’s placement in the substantially separate life skills program at East Taunton Elementary School on an extended year basis. Under the IEP Solomon would have a dedicated one-to-one paraprofessional. He would also receive: direct individual ABA services 3 hours per day; direct individual speech-language services thirty minutes per day, four days per cycle; direct individual occupational therapy twice weekly for 30 minutes; and direct individual adaptive physical education twice weekly for 30 minute sessions. The BCBA, speech/language therapist and occupational therapist would also provide supervision and consultation to the classroom. The evaluators developed new goals which were incorporated into the IEP (S-1). The Parents have not responded to the proposed IEP. They have not observed or asked any questions about the proposed program. (Reardon)
20. Daniel Fagan, Principal of East Taunton Elementary School, described the Life Skills classroom proposed for Solomon. The teacher, Lisa Aleixo, has more than 19 years experience teaching life skills programs. She is certified in early childhood and K-3 education, as well as special education K-9. There are two dedicated classroom paraprofessionals. Currently 11 students attend the program; two of them have 1:1 paraprofessionals. All students have primary cognitive impairment. Most also have a diagnosis on the autism spectrum and/or a physical disability. The range in cognitive functioning is from approximately 18 months to 1 st grade. A speech language pathologist and an occupational therapist split their time between the life skills class and a class geared toward students challenged by autism. They provide individual, small group and whole class instruction both in and outside the classroom. An adaptive physical educator and a physical therapist also provide services for individual students according to their IEPs. There is a resident BCBA in the building and many individual ABA therapists. A music teacher visits the classroom weekly. High school students spend 70 minutes per day in the class. Fourth grade students are “mentors” at least one hour daily. All life-skills students eat lunch in the regular cafeteria and attend school-wide assemblies. Some are integrated into classes with mainstream peers.
The classroom is very large and has multiple learning areas: a table large enough to accommodate 12-14 students; a blackboard/overhead and rug area; a cluster of individual desks; a sink/refrigerator/food prep area; a computer area; a play center; and a bathroom. The classroom has computers, Ipads, dyno-vox and walking devices. There is a large, fully equipped, sensory room attached to the classroom. It has a ball pit, trampoline, tubular maze, swing and spinning cone. Classroom instruction focuses on developing the students’ functional living and communication skills. It is highly structured with a predictable routine and schedule. The day begins with breakfast to encourage independent eating and social skills. The class then moves through calendar, story time, language arts, math, rug activities, and individual therapies. (Fagan)
Mr. Fagan has not met Solomon, but he reviewed the fall 2011 evaluations and the proposed IEP. Mr. Fagan testified that the life skills classroom appears to be an appropriate placement for Solomon and that all the services listed on the proposed IEP can be delivered within that classroom and East Taunton Elementary School. (Fagan)
21. Sheilah Reardon, Director of Special Education for the Taunton Public Schools, testified that Taunton followed all relevant special education regulations and complied with all applicable timelines with regard to Solomon and his parents since Solomon was removed from the South Coast Collaborative placement in June 2011. Taunton has offered to meet with Solomon’s parents at any time to discuss their concerns about his education (See e.g. S-26; S-39). Taunton has offered multiple school placements for the Parents to observe and/or select from (S-26; Administrative Record; Reardon). Solomon has not attended school since October 28, 2011. Taunton has begun truancy proceedings (Reardon).
Findings and Conclusions
There is no dispute that Solomon is a student with special learning needs as defined by 20 U.S.C. § 1400 et . seq . and M.G.L.c. 71B, and is thus entitled to receive a free appropriate public education. The question for decision in this matter is whether Taunton Public Schools has fulfilled its obligation to offer Solomon a free appropriate public education. After careful consideration of all evidence presented, and of the arguments made or raised by the Parties, it is my determination that Taunton has met all procedural and substantive obligations imposed under federal and state special education law. My reasoning follows:
a) Legal Standards
State and federal statutes relating to the education of students with disabilities set out a comprehensive web of procedural and substantive obligations designed to ensure that those students have meaningful access to public education. Chief among these obligations is that of developing an Individualized Education Program (“IEP”) that is tailored to address the individual student’s unique learning needs and is reasonably calculated to permit the student to receive educational benefits and to make effective progress commensurate with the student’s educational potential.3 Here, Taunton seeks a determination that the most recent IEP it developed for Solomon would provide him a free appropriate public education. The School also seeks a ruling that it followed all required procedures and met all statutory timelines in developing the proposed 2011-2012 IEP. As the moving party seeking relief on these issues, the school bears the burden of proof. Schaffer v. Weast , 546 U.S. 49 (2005). No other significant legal issues were presented for decision.
b) School’s Issue: Whether the proposed 2011-2012 IEP is reasonably calculated to provide a free appropriate public education to Solomon?
The evidence in this matter is unequivocal. Solomon is a student with severe global developmental delays and an autism spectrum disorder. (¶1, 10, 11) The most recent comprehensive expert evaluations show that Solomon requires special education and related services geared to improving his functional communication, functional academic, social activity of daily living, fine and gross motor skills. (¶ 9, 11, 12, 13, 14). The evaluators uniformly recommended that Solomon receive special education services with a small group of similarly functioning peers in a “life skills” classroom that can accommodate his ongoing parallel need for direct ABA services, augmentative communication devices and sensory input. (¶9, 11, 14) There is no evidence to the contrary. The 2011-2012 developed IEP by Taunton meets the recommendations of the evaluators. It proposes that Solomon be placed in a “life skills” classroom with a group of 11 similarly functioning peers. The classroom has all the characteristics determined to be appropriate for Solomon by the evaluators: low staff-student ratio; emphasis on life skills instruction; access to augmentative communication equipment; access to a specialized sensory room; instructional participation and consultation by a BCBA and by a speech-language pathologist; appropriate facilitated exposure to mainstream peers (¶14, 19, 20). In addition to the classroom placement, the proposed IEP reflects the evaluators’ recommendations for direct one-to-one services in applied behavior analysis, speech-language therapy, occupational therapy and adaptive physical education. It is noteworthy that the discussion at the October 19 th 2011 Team meeting led two of the evaluators/service providers, Ms. Mansfield and Ms. Lavalley, to recommend an increase in direct ABA and speech-language therapy, and that the resulting IEP reflects that increase. This fact points to flexibility and responsiveness on the part of both the direct service providers and Taunton’s special education administrative staff, thus incorporating the best intent and practice of IEP development regulations. Furthermore, the unrebutted evidence that Solomon was making demonstrable, effective educational progress during September and October 2011 with the type and amount of direct related services that would continue to be provided under the proposed IEP, persuades me that the IEP is likely to provide meaningful educational benefit to him. There are no expert recommendations in the record for any placement other than the life skills classroom. There are no expert recommendations in the record for any type or amount of related service that is not reflected in the proposed IEP. There is no evidence to support a finding that the proposed IEP cannot be implemented as written. Therefore, I find that Taunton Public Schools has carried its burden of proving that its proposed IEP is uniquely tailored to Solomon’s documented educational needs and reasonably calculated to provide him a free, appropriate public education.
In reaching this conclusion I rely heavily on the testimony of both Ms. Mansfield and Ms. Lavalley. Both witnesses demonstrated an extraordinarily high degree of professionalism in their work with Solomon during the diagnostic period, in their advocacy on his behalf during the development of the proposed IEP, and during the hearing proceedings. Their evaluations were thorough and thoughtful. Their direct service provision to Solomon and consultation to other staff were creative and purposeful. Their commitment to Solomon and to his educational progress is evident.
Similarly, the work of Sheilah Reardon as the administrator in charge of the educational planning process for Solomon should be acknowledged. Ms. Reardon ensured that Taunton responded promptly and effectively when the Parents initially withdrew him from the South Coast Collaborative at the end of the 2010-2011 school year. (¶21, 4) She offered several educational options to the Parents so that appropriate special education services could be resumed. She ensured that the extended evaluation occurred and that it was completed within the regulatory time frame, no easy task. 603 CMR 28.05(2)(b); 603 CMR 28.04(2). Despite unusually difficult circumstances, Ms. Reardon continues to encourage the Parents to participate in the IEP planning and implementation process, as she also ensures that Taunton meets its procedural obligations under the applicable special education and school attendance laws. (Reardon; ¶4, 21) The record shows that Taunton substantially complied with all relevant federal and state regulations concerning the evaluation and IEP development process for Solomon since May 2011. Contrary to the Parent’s argument, there is no evidence of any procedural irregularity.
As I have found that the 2011-2012 IEP proposed by Taunton in reasonably calculated to provide a free appropriate public education to Solomon, I need not reach the issues raised by the Parents. Indeed, due to the Parents’ decision to forego the hearing, their claims are considered abandoned. Due to the Parents’ pro se status, however, some discussion of the Parents’ positions and disposal of the issues previously raised may be useful. First I note that before leaving the Hearing the Parent stated that he wished to withdraw all previously identified issues and would seek financial assistance for home schooling. He left before clarifying or presenting evidence on that newly articulated issue. No evidence was submitted on any of the Parents’ previously identified issues. Therefore, after careful independent evaluation of all the evidence in the record and of the potential legal arguments that could be made on the Parents’ behalf, I find no credible evidentiary support for any of the Parents’ hearing issues. Furthermore I find no substantive merit to any of the arguments they raised in opposition to the School’s position. I discuss them in turn.
c) Parents’ Issues: Whether Solomon requires an individually tailored ABA based special education program delivered in a private setting in order to receive a free appropriate public education.
1. There are no educational, behavioral, psychological or communication evaluations which recommend that Solomon receive all his special education and related services in a 1:1 setting. There are no such evaluations which recommend that Solomon attend a particular private school, or any private facility. On the contrary, the recent evaluations by a neuropsychologist, a speech-language pathologist and a BCBA uniformly recommended that Solomon be placed in a specialized classroom with a small group of similarly-functioning peers. (¶9, 11, 14) Ms. Lavalley and Ms. Mansfield both testified credibly that Solomon would derive greater educational benefit from placement in a classroom than from full day 1:1 services. (¶ 14) Their testimony is convincing and uncontradicted. Thus I find there is no evidentiary support for the Parents’ request for the more restrictive and less educationally beneficial 1:1 placement in a private setting.
2. Whether Taunton failed to implement the last accepted IEP for Solomon?
The Parents bear the burden or proof on this issue. They did not produce any evidence which would permit a finding of noncompliance. On the contrary the evidence demonstrates that Taunton made all the services due to Solomon under the last accepted IEP available to him between May and November 2011. (S-25, S-26; S-32; Reardon; Mansfield; Lavalley) To the extent that Solomon did not receive the special education services outlined on the accepted 2010-2011 IEP it was due to the Parents failure to send Solomon to school in June, July, August and November 2011. (S-23; S-24; S-25; S-40; Reardon) Therefore I find that the Parents did not prevail on this issue and it is dismissed with prejudice.
3. Whether, since May 2011, Taunton committed procedural violations of the IDEA and/or M.G.L.c.71B and/or Section 504 which resulted in a deprivation of a free, appropriate public education to Solomon?
The Parents bear the burden of proof on this issue. They did not offer any evidence which would support a finding that Taunton committed any procedural violations in connection with Solomon’s special education, much less that Solomon suffered “egregious educational harm”4 as a result of Taunton’s action or inaction. On the contrary, credible evidence in the record established that Taunton complied with all applicable special education regulations concerning the development and implementation of IEPs and the conduct and timing of extended evaluations. Uncontradicted testimony indicated that Solomon made steady educational progress when he was permitted to attend school. There is no proof of any educational harm to Solomon. Although Ms. Lavalley observed that Solomon appeared to have had weaker attending skills in September 2011 than those reported by South Coast Collaborative in June 2011, this one area of potential regression is not associated with the failure of Taunton to offer appropriate special education services during the summer 2011 but rather to the Parents’ decision to decline them. Therefore I find that the Parents did not prevail on this issue and it is dismissed with prejudice.
4. Whether Taunton’s procedural violations were related to discrimination on the basis of Solomon’s disability?
As noted above, I find there is no evidence of any procedural violation in connection with the provision of special education to Solomon. Nor is there any evidence that Taunton engaged in any act of discrimination against Solomon on the basis of the nature or severity or existence of his disability. Therefore I find that the Parents have not prevailed on this issue and it is dismissed with prejudice.
5. Whether Taunton’s procedural violations were related to retaliation for the Parent’s protected advocacy activities?
As noted above I find there is no evidence of any procedural violation in connection with the provision of special education to Solomon. Nor is there any evidence of any act of retaliation for the Parent’s protected advocacy activities. The Parent’s argument appears to be based on his dissatisfaction with the school staff’s knowledge of his criminal record. He asserts that mere awareness of the nature of his conviction creates a hostile educational environment for his son. In this record there is no evidence of school staff awareness of the Parent’s status, no evidence of a hostile educational environment, no evidence of any failure to provide an agreed upon special education service to Solomon, and no evidence of any change of service, staff, placement, or any other school district action or intervention concerning Solomon related to school staff’s acquisition of knowledge of the Parent’s status. Even if there were such evidence there is no connection to a protected advocacy activity that would permit a BSEA finding favorable to the Parent. Therefore I find the Parents have not prevailed on this issue and it is dismissed with prejudice.
6. The Parents argued that Taunton Public Schools’ teachers and therapists who provide, or are anticipated under the proposed 2011-2012 IEP to provide, direct special education and related services to Solomon are not qualified to do so. On the contrary the credible evidence in the record amply supports the conclusion that Taunton Public Schools’ staff working with Solomon have the training, the professional qualifications, and the length and breadth of experience in their respective fields to meet any qualifications challenge. Indeed it is unusual to find such a strong collection of professional staff uniquely qualified in a variety of education related fields to provide direct services to a student with a low incidence disability. Ms. Mansfield, an ASHA certified CCC, has more than 10 years experience designing and implementing speech-language therapy services for school age children with developmental delays and autism (Mansfield; ¶6) Ms. Lavalley, a BCBA, has more than ten years experience designing and implementing behavioral and educational program for students with autism and developmental/behavioral challenges (Lavalley ¶14) I note that both the 1:1 paraprofessional and the ABA therapist demonstrated competence in implementation of the BCBA designed program, including data collection. (See e.g. S-21; S-22; Lavalley) Ms. Aleixo has more than 10 years experience directing a life skills education classroom for students with severe developmental delays, including those related to or associated with autism. (Fagan; ¶20) I find, therefore, that the Parents’ objection to Solomon’s placement in the Taunton Public Schools and to the 2011-2012 IEP developed by Taunton on the basis of inadequate professional qualifications is without merit.
7. The Parent stated that he could not trust Taunton Public Schools to implement Solomon’s IEP or to keep him safe in school as Solomon had been neglected and abused in prior Taunton classroom placements. There is no evidence in the record to substantiate the Parent’s claims in this regard. The witnesses I observed at the hearing demonstrated genuine concern for and commitment to Solomon’s education. I am persuaded by the evidence as a whole that they represent the rule rather than the exception in Taunton. Therefore, I find the Parents’ argument in this regard to be without merit.
8. The Parent asserted that Solomon had made no progress since he entered the Taunton Public Schools at age 3. The Parent contended that had Taunton taught him correctly Solomon would be talking now that he is 8 years old. The expert evaluators testified that Solomon is capable of making slow steady progress when presented with highly structured, consistent interventions using an ABA approach. The record shows that Solomon did in fact make steady progress in the acquisition of foundational behavioral and functional communication skills when provided with consistent ABA based educational interventions as he was during September and October 2011. The type and rate of progress is consistent with the severity of his disabilities. (Lavalley; Mansfield; S-11; S-12; S-13; S-14; S-15; S-16; S-17; S-18; S-19; S-20; S-21; S-22) There is no factual support for the Parent’s assertions that Solomon could have been using effective voiced verbal communication at age 8 had he been receiving a different type of educational intervention. Nor is there any factual support for the Parent’s assertion that Solomon has made no educational progress in the Taunton Public Schools.
9. The Parent asserted that a “private school” would provide a more appropriate educational environment for Solomon. The Parent did not identify any particular private school and introduced no evidence to support this claim.
10. The Parent asserted that home schooling would be more appropriate for Solomon than placement in the Taunton Public Schools. All expert evaluators recommended that Solomon attend a school based educational program in order to benefit from the expertise of the teachers and therapists, the consistency and intensity of interventions, the variety of educational, communication and sensory equipment, the opportunities for practice and generalization; and the exposure to both similarly situated and typically developing peers. There is no factual support for a home schooling program for Solomon in this record.
11. The Parents asserted that they were not permitted to participate in any educational planning or decision making for Solomon. This argument is without merit. The Parents have been invited to contribute their expertise at every appropriate decision making juncture since May 2011. They left the Team meetings on July 13, 2011 and October 19, 2011 before the conclusion. The Parents did not attend the evaluation conference to which they had been invited by Dr. Dorn. Mr. S. left the hearing without presenting evidence. Ms. S. did not attend at all. The Parents did provide some critical consents to services and evaluations for Solomon but declined to provide others, demonstrating active participation in some aspects of parental decision making contemplated under federal and state special education law. (See, e.g., S-29; S-27; S-32)
ORDER
The 2011-2012 IEP developed by Taunton is reasonably calculated to provide Solomon with a free appropriate public education. All other Hearing issues set out in the prehearing Orders of November 4 and 28, 2011 are Dismissed with Prejudice.
December 14, 2011 __________________________
Lindsay Byrne, Hearing Officer
1
“Solomon” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
In some documents or testimony the witness is referred to by a different surname: Meerbach
3
Lessard v. Wilton-Lyndeborough Coop. School District , 518 F. 3d 18 (1 st Cir. 2008); Lenn v. Portland School Comm ., 998 F. 2d 1083 (1 st Cir. 1993); Town of Burlington v. Dept of Education , 736 F. 2d 773 (1 st Cir. 1984) att’d., 471 U.S. 359 (1985).
4
Pihl v. Massachusetts Dept of Education , 9 F. 3d 184 (1 st Cir. 1993); Roland M. v. Concord School Comm ., 910 F.2d 983 (1 st Cir. 1990).