COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Tyrell1 & Duxbury Public Schools
BSEA# 09-0295
DECISION
This Decision is issued pursuant to 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, M.G.L. c. 71B and 30A, and the regulations promulgated under those statutes. A hearing was held in the above entitled matter on September 23 and October 15, 2008, at 11 Dartmouth Street, Malden, MA. Those present for all or part of the proceedings were:
Mr. & Mrs. X Parents
Robert Hair Education Director, Perkins School
Ellen Mazel Consultant Teacher of the Visually Impaired
Nora Hughes Special Education Teacher, Duxbury Public Schools
Elizabeth Scandone Teacher of the Visually Impaired, Duxbury Public Schools
James Shillinglaw Interim Special Education Director, Duxbury Public Schools
Nancy Manske Director of Family Services, Evergreen School
Joshua Krell Attorney for Evergreen School
Bob Augustine Advocate for Parents
Paige Tobin Attorney for Duxbury Public Schools
Lindsay Byrne Hearing Officer
The official record of the Hearing consists of: documents submitted by the Parent labeled P-1 through P-12; documents submitted by the School labeled S-1 through S-5; and approximately six hours of recorded oral testimony. Both parties submitted written closing arguments by November 3, 2008 and the record closed on that date.
Issues
1. Whether the September 2008-September 2009 Individualized Education Plan proposed by Duxbury, which calls for Tyrell’s residential placement at the Evergreen School, is reasonably calculated to provide a free, appropriate public education in the least restrictive setting ? or
2. Whether the Parents’ preferred placement at the Perkins School, is the least restrictive, appropriate residential educational option for Tyrell at this time?
During the 2007-2008 school year the parties began to recognize that Tyrell would benefit from continual, intensive interventions to improve his sensory perception, develop his communication skills, strengthen his memory and increase his motor control. Beginning in February 2008, the Parents actively sought residential educational programming. (Parents; P-1; P-2) After the Team reconvened in May 2008, Duxbury proposed continuing Tyrell in the Duxbury intensive special needs program but adding a one-to-one aide, additional home consultation, and a longer summer program of related services. The Parents rejected the proposed IEP and requested a residential placement. (P-6) On September 2, 2008, Duxbury developed a 2008-2009 IEP providing for intensive educational services to be delivered in a residential setting. The parties agree on the type, frequency, and setting of the educational services that are necessary to meet Tyrell’s learning needs. They also agree that the goals, objectives and methodologies contained in the proposed 2008-2009 IEP are appropriate for Tyrell. They disagree on the hierarchy of Tyrell’s learning needs. They also disagree about which of the proposed residential educational programs can ensure that Tyrell makes educational progress consistent with his potential in the least restrictive setting. Thus the issues in this matter are very narrow:
Summary of the Evidence
There is little disagreement between the parties concerning the operative facts in this matter. Therefore, they may be briefly summarized.
1. Tyrell is an eight year old student with multiple complex and intensive special education needs. He is profoundly developmentally delayed, functioning between a nine and twelve month developmental level in various domains. He has a cortical visual impairment. His leukemia is in remission after a 2 year course of treatment. Tyrell does not have a recognizable communication system. He is good natured and likes water play and music. Tyrell has unpredictable behaviors which can, at times, be dangerous to himself or attending adults, such as biting, hair pulling, striking out and flopping down. Tyrell needs a full day, full year residential education program to meet his learning needs and to make effective progress. (Mother, Hughes, Scandone; P-1; S-1; P-9)
2. Tyrell has received special education services through the Duxbury Public Schools since he was three. Nora Hughes has been his primary special education teacher since he was four years old. Ms. Hughes testified that when she began teaching him, Tyrell had little response to visual or auditory stimulation, relying primarily on touch to interpret his environment. Overall he functioned at a four month level, with extremely limited attention span, extremely limited memory, and little awareness of his body in space. With intensive routinized physical, sensory and educational training, sometimes involving thousands of repetitions of strategies, Tyrell has been able to achieve approximately one month’s developmental growth per calendar year. At this time he can follow or imitate some play schemes, can recognize his cup, anticipates one song used during the morning routine, has a “self-sign” for “more”, can use a gait trainer with assistance and crawl with supervision. He continues to exhibit significant difficulty mastering object permanence; storing and retrieving information and using more than one sense at a time to take in information. (Hughes; P-1, S-1)
Ms. Hughes testified that Tyrell’s primary educational need is improving his cognitive functioning. Her class concentrated on laying down the neural pathways in the brain so that Tyrell can develop the capacity to receive, process, store and retrieve information. She recommends that Tyrell continue in a more intensive educational setting designed to increase his neurological and cognitive abilities through consistent routines, one-to-one teaching, constant repetition and practice, integrated and consultative delivery of related services such as physical therapy, occupational therapy, speech therapy, and vision therapy, and continual assessment of his physical and health status. (Hughes; P-7; P-1; S-1) In particular, according to Ms. Hughes, Tyrell’s next educational placement should concentrate on lengthening his attention span, increasing his sensory capacity, increasing his proprioceptive capacity, improving his object recognition skills and improving his attention to and recognition of auditory input. Based on her close work with Tyrell over the past four years, Ms. Hughes would rank his learning needs in the following order of priority: cognitive / intellectual development; physiological functioning and resultant behaviors; communication; visual impairment. Ms. Hughes explained that Tyrell’s learning overall is mediated/ dictated by his skills in the storage and retrieval of information; the mode of input is less important. Currently, he can take in information through only one sense at a time, which slows his rate of new learning.
Ms. Hughes visited both the Evergreen School proposed as an educational placement for Tyrell by the Duxbury Public Schools and the Perkins School sought by the Parents. Although she did not see the residential portion of the Evergreen School, Ms. Hughes found the Evergreen classroom proposed for Tyrell to be appropriate for him. It was quiet, with dimmed lights and useful books and toys. The teachers spoke to the students softly and kindly. The students in the classroom appeared to have needs similar to Tyrell’s. Ms. Hughes noted that although Evergreen uses an integrated service model, as she recommends, the classroom experience would not be as “rich” as at Duxbury because the service delivery is spread out over a longer day and week.
Ms. Hughes visited the Perkins School when no children were present. She noted obvious accommodations for individuals with vision impairments, but believed the acoustics and the space utilization would be difficult for Tyrell to negotiate. She testified that Tyrell enjoyed the physical changes (i.e. light, wind, etc.) associated with transitions. Ms. Hughes concluded that Evergreen’s “normalization” of the separations of home and school, along with the continuity of care for weekends and the summer holiday, made it a stronger educational program for Tyrell than the Perkins School. (Hughes; see also P-7)
3. Elizabeth Scandone has been the Teacher of the Visually Impaired for the Duxbury Public Schools for nine years. She has known Tyrell since he was 3 years old, and has provided direct and consultative services to Tyrell and his classroom. She stated that at age three, Tyrell responded to deep physical pressure. He did not respond to light, auditory input or objects. During the 2007-2008 school year, when he was seven years old, Tyrell could respond to materials, could glance from one color to another, and could inconsistently track an object. Tyrell’s cognition is limited and his rate of progress is slow. For example, he can mouth or bang a preferred object. Ms. Scandone testified that she, Ms. Hughes and the teacher’s aides have worked to develop Tyrell’s “object permanence” for many years, moving him slowly toward the 6-12 month developmental level. Tyrell has not yet reached the point where he can remember an object once it leaves his field of vision. Ms Scandone testified that the environmental and instructional modifications pertinent to Tyrell’s visual impairment are “low tech” and can be implemented by anyone across all settings. Once a teacher of the visually impaired sets up a vision training program it can be implemented by a teacher, a physical therapist or an aide. She noted that she developed the goals, objectives and accommodations listed on Tyrell’s proposed IEP. (P-1; S-1) Ms. Scandone could oversee the implementation of those services in another setting using a consultative model.
Ms. Scandone visited both the Evergreen School and the Perkins School. Both schools would use a consultative teacher of the visually impaired for Tyrell; neither would provide direct teacher of the visually impaired or vision therapy services in the classroom. Ms. Scandone testified that she, preferred the environment at Evergreen School for Tyrell. On her visit it was quiet, had few visual distractions, and had wide-open accessible space for the activities that Tyrell likes. Ms. Scandone testified that having a home component physically separate from the classroom would benefit Tyrell because the environmental changes (air, temperature, light) would trigger brain recognition of time and schedule and stimulate brain functioning. On the contrary, Ms. Scandone testified, the Perkins School was too visually distracting for Tyrell, was too small a physical space, and had limited opportunities for normalization. (Scandone)
4. Gretchen Timmel, a licensed psychologist and regular education elementary teacher, observed Tyrell in his Duxbury classroom, and attended his May Team meeting. In her report dated 5/7/08 Ms. Timmel echoed the recommendations of Tyrell’s teachers. She wrote that Tyrell needs
: a systematic environment to develop and respond to nonverbal communication;
: integrated related therapies;
: a functional communication system;
: medical consultation throughout the day;
: systematic approach to presentation of visual materials;
: placement with students with similar learning profiles;
: direct or consultant services from a teacher of the visually impaired.
(P-9)
5. Ellen Mazel, a Teacher of the Visually Impaired for 31 years, testified that she considers cortical visiton impairment the primary learning issue for multi-handicapped students because 90% of all learning is through vision. She stated that “CVI” manifests differently in each individual and instruction for students with cortical vision impairment is highly individualized. There are no standard instructional practices or techniques geared to cortical vision impairment; most interventions are environmental. Ms. Mazel testified that the instructional strategies and environmental accommodations listed on Tyrell’s proposed IEPs are appropriate for a student with CVI. (S-; P-1; P-2) Ms. Mazel has not met Tyrell or visited the Evergreen School. She does not provide any direct or consultative services to the Perkins school.
6. Nancy Manske, for 16 years the Director of Family Services and Admission at the Evergreen School, described the school. There are two programs servicing 89 students aged 6-22 with severe developmental disabilities. One, The Center for Basic Skills, is thought to be appropriate for Tyrell. It is a community based residential educational program designed to serve students with complex cognitive and physical needs. The main goal of the ABA based program is for each student to be as independent as possible for that individual. The educational center is located in a single floor, barrier free building. In addition to classrooms the building has a gym, an art room, occupational therapy rooms, vocational training settings, two cafeterias and an accessible playground. There are 7-8 students per classroom. Each classroom has a teacher(s) and teacher aides sufficient to maintain a 1 staff to 2 student ratio at all times. The classroom student group lives together in a community residence off the school grounds.
The educational staff also includes an adaptive physical educator, a speech-language pathologist, an occupational therapist, a physical therapist, a behavioral therapist, a music therapist, and 5 full-time nurses. The program uses ABA principles. Data collected on each student at least every half hour during all awake hours is used to develop, implement and assess an individualized behavior plan. There is direct activity of daily living instruction and practice throughout the day. Each student has an IEP liaison and a health planner assigned to coordinate services and planning. Classroom instruction runs from 9:00 a.m. to 2:30 p.m. Instruction and practice centers on development of life skills, functional academics and vocational training. Each student has an individually designed feeding program, toileting program and bathing program. Adaptive Physical Education is provided three times per week. The students receive music and art instruction once weekly.
At 2:30 the classroom group boards a van to return to one of the 11 residences set in surrounding communities. The day staff transitions the students to the residence staff. The residence staff continues to work on the students’ IEP goals and behavior plans through residence, community and leisure activities. (Manske; S-2)
Ms. Manske testified that although she had been contacted by Duxbury Public Schools concerning a potential placement for Tyrell, and had met with his parents, no formal application for admission had been submitted as the parents had not consented to release of information to Evergreen. (Manske)
7. Robert Hair, Principal of the Perkins School, testified that Tyrell and his parents visited the Lower School in July 2008, and immediately applied for admission. Tyrell was accepted at the end of July 2008. Perkins has not developed a formal plan of education for Tyrell. Mr. Hair described the educational program available to Tyrell at Perkins.
Fifty-four students ages 7-15 attend the Lower School, 13 on a residential basis. The school and residence are in the same building on the Perkins School Campus and all residential activities take place on campus. Classes are in session for a typical 180 day school year and a five week summer program. No educational programming is offered on weekends. A nurse is available during the day. No nursing staff is on duty in the evenings. The evening program is devoted to play and leisure. Most lower school students have visual impairments in addition to other disabilities. Five students have cortical vision impairment. All the current students with CVI receive direct vision therapy either with their classroom teacher or a vision therapist. The students are placed into one of 14 groups based on reading/ math/ communication levels and behavioral issues. Typically there are four students per classroom with one teacher and 1 or 2 paraprofessionals.
According to Mr. Hair the teacher selected for Tyrell were he to attend Perkins is particularly good with students with behavioral issues such as biting. She is certified in special education but is not a teacher of the visually impaired. The three students currently in the designated classroom have learning challenges similar to Tyrell’s, although they are all making progress within their age range. No direct vision therapy is proposed for Tyrell. Perkins provides some family training on blindness issues, though none particular to CVI. (Hair; S-5)
8. The Parents testified that they believe that Tyrell’s cortical vision impairment is his primary disability, and targeting services at improving his visual skills will improve his overall functioning. The Mother testified that the Evergreen School does not have the necessary services or expertise to provide appropriate vision services to Tyrell. The Father stated that while the Evergreen School works primarily on student behavior, the Perkins School staff is passionate about remediation of vision. The father also objected to the residential component of the Evergreen School, noting that he would prefer that Tyrell be included in “normalization” and community-based activities in his real home community of Duxbury, rather than the towns in which his school/ residence is located and to which he has no meaningful connections. (Parents)
9. The Parents visited the Perkins School with Tyrell for a full day in July 2008. The Parents visited the Evergreen School for two hours in August 2008. They did not observe the residential component. They also visited or considered four other residential educational placements for Tyrell. (Parents)
Findings and Conclusions
There is no dispute that Tyrell is entitled to receive a free, appropriate public education pursuant to 20 U.S.C. § 1401 et seq ., and M.G.L. c.71B. Nor is there any disagreement that he needs a full year, highly structured, residential educational program that provides an integrated, systematized teaching approach, health management, vision services, and functional communication, mobility and sensory skills development in order to ensure that he makes educational progress consistent with his potential. The only question here is where should that educational program take place?
After careful consideration of the entire record I this matter I find first that the IEP developed by Duxbury meets the recommendations of Tyrell’s teachers and evaluators and contains all the elements of an appropriate educational program. Unfortunately I am unable on this record to determine where that program should be delivered to Tyrell. The Parents did not consent to the release of records to the Evergreen School, and did not complete their tour of the facilities there. The Evergreen School could not, therefore, make a reasonable determination about whether it could implement Tyrell’s IEP. While the comparison of the proposed 2008-2009 IEP with the description of available services offered by Evergreen’s Director of Admissions appears to indicate a good match, I defer to Ms. Manske’s judgment that admission cannot be offered to Tyrell, or to Duxbury, without completion of the entire admissions process, which the Parents have declined to pursue.
On the other hand, the record demonstrates that the placement requested by the parents, the Perkins School, has service shortcomings. Most notably, The Perkins School does not intend to provide direct or specialized vision services to Tyrell, despite the Parents’ identification of vision therapy as their first priority for Tyrell’s education. Perkins also does not provide continuous education throughout the day, over the weekends or for the course of a full year. Neither of Tyrell’s current teachers, both of whom I found to be highly experienced, thoughtful, and committed to Tyrell and his education, supported his placement at the Perkins School. The record does not establish with any certainty whether direct services geared toward cortical vision impairment will address the most pressing educational need for Tyrell. Neither of the proposed placements offers such services on their own initiative. Neither party presented an independent expert opinion concerning Tyrell’s complex profile, and potential for educational progress. To fairly identify a hierarchy of educational need, and to develop the information critical to selecting an appropriate residential educational placement for Tyrell I find that two things must first occur: (1) a comprehensive evaluation of both Tyrell’s current status and placement options and (2) parents consent to release of Tyrell’s educational records to the Evergreen School.
The evaluations must be conducted by an expert in the education of students with visual impairments along with complex learning challenges. The evaluation should include, at a minimum: a review of all of Tyrell’s educational records; observation(s) of his current functioning in school and at home; interviews with his service providers and parents; and an assessment of the two residential educational programs identified here. The evaluator must produce a written report and participate in a Team meeting. With this information the record may be sufficient to permit an informed conclusion as to whether the residential educational placement proposed by Duxbury is reasonably calculated to provide a free, appropriate public education for Tyrell.
Order
This hearing is continued and the record is left open for receipt of additional information. The parties shall each submit a list of 3 potential independent evaluators with expertise in the education of students with visual impairments and other complex learning needs who are willing to conduct a comprehensive publically funded student and program evaluation in accordance with the parameters set out in this decision. The parties shall submit the lists to the Hearing Officer no later than December 22, 2008. Unless the parties agree on one willing individual or facility the Hearing Officer will select the evaluator. At the conclusion of the evaluation process the hearing will reconvene, if necessary, to take additional evidence limited to the parameters of the evaluation and the conclusions of the independent expert evaluator.
Lindsay Byrne, Hearing Officer
1
“Tyrell” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.