Decision this decision is issued pursuant to the Individuals with Disabilities Education Act 20 usc 1400


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COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals


In Re: Amherst-Pelham Regional School District BSEA #12-1264



DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on April 3 and 4, 2012 in Springfield, MA, and on April 10, 2012 in Amherst, MA before William Crane, Hearing Officer. 1 Those present for all or part of the proceedings were:
Student

Student’s Sister

Student’s Mother

Student’s Father

Elisabeth Doyle Educational Consultant to Parents

Kelly Chase Former IEP Team Chairperson and Special Education Department Chairperson, Amherst-Pelham Reg. High School

Norma Mackey Supervisor, New England Business Associates

Martha Lewin Grants Case Manager, United ARC

Doreen Boyer Transition Services Coordinator, Massachusetts Department of

Developmental Services

Jacquelyn Smith-Crooks Educational Consultant/Parent Advocate

Tina-Lynn Agustin Liaison to Developmental Studies Program, Amherst-Pelham Regional High School

Julie Tanguay BCBA Consultant, Amherst-Pelham Reg. Sch. Dist. (RSD)

Diane Chamberlain Assistant Principal, Amherst-Pelham Regional High School

Jeanne Millar White Student Services Administrator, Amherst-Pelham RSD

JoAnn Smith Interim Director of Student Services, Amherst-Pelham RSD

Fernand Dupere Attorney for Amherst-Pelham RSD

Debbie Leonard Lovejoy Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-41; documents submitted by the Amherst-Pelham Regional School District (Amherst) and marked as exhibits S-1 through S-25 and S-1A through S-11A; and approximately two and one-half days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on May 1, 2012, and the record closed on that date.
I acknowledge, with gratitude, the legal research assistance from BSEA legal intern Stephanie Berger.




ISSUES



The issues to be decided in this case are the following:


  1. Is the IEP most recently proposed by Amherst reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment?

  2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?

  3. If not, would a residential education placement satisfy this standard?

  4. Has Amherst violated Student’s right to FAPE; and if so, are compensatory services due?



FACTS
Student’s Profile and Currently-Proposed IEP
Student is a twenty-year-old young man who lives with his Parents in Amherst, MA. His Parents have been appointed to be his guardian. Testimony of Mother; exhibit P-31.
Student is kind, cheerful, trusting, friendly and generally cooperative. He appears to enjoy social contact, particularly with certain familiar people and other students. Student has severe and pervasive learning deficits that are not in dispute. He is diagnosed with Autism, Pervasive Developmental Disorder, Severe Mental Retardation, Chronic Encephalopathy and von Willibrand Syndrome. Exhibits P-22, P-23, P-27, S-23, S-6A, 11A.
Student’s deficits have had (and continue to have) a profound effect on his educational development. Currently, he has extremely limited functional communication abilities, and even with the assistive technology being used for Student, he cannot consistently indicate his choices. Because of his limited communication skills, attempts to assess his intellectual ability have not been successful. Student has bowel and bladder incontinence, and at school, he is currently on a toilet training program in which he is scheduled to go to the bathroom every fifteen minutes. He has extremely limited social, self-care and independent living skills. He also has mobility, coordination and balance challenges that require constant supervision in order to avoid falling when he is on his feet. Nearly all instruction is provided on a 1:1 basis. Staff typically combine voice direction together with hand guidance while he performs a particular task. Testimony of Mother, Tanguay, Agustin, Doyle; exhibits P-22, P-23, P-27, S-23, S-6A.
Through its most recently-proposed IEP (exhibit S-11A), Amherst has proposed that Student receive the following direct special education services during the school year:


  • adaptive living skills instruction from a special education teacher or special education paraprofessional for 269 minutes on a daily basis;

  • two hours per week of adaptive living skills instruction from a behavior analyst or behavior therapist;

  • an hour per day of vocational training from a vocational coordinator or special education paraprofessional; and

  • extended day services from the New England Business Associates (NEBA) staff for 150 minutes each day.


This proposed IEP also calls for the following related services:


  • physical therapy for a half hour, twice per week;

  • occupational therapy for a half hour, twice per week; and

  • speech-language therapy for a half hour, three times per week.


The IEP also proposes extensive consultation services, including monthly consultation for an hour from the special education team, fifteen minutes per week from the Assistive Technology Coordinator, an hour six times per week from the Behavior Analyst or Behavior Therapist, an hour per week from the Vocational Coordinator, fifteen minutes per week from the occupational therapist, fifteen minutes per week from the physical therapist, and a half hour per week from the speech-language therapist. Full-day summer services are also proposed, including an hour per day from the Behavior Analyst or Behavior Therapist and related services of physical therapy, occupational therapy and speech-language services.
Although Parents have not accepted this IEP, Amherst appears to be providing the services reflected in the service delivery grid. Testimony of Tanguay.
Factual Background
Student has been educated by the Amherst Public Schools for his entire educational career, beginning when he was three years old. It is anticipated that he will continue to be eligible for special education services until his 22nd birthday in December 2013. Testimony of Mother.
Student’s early educational history is described within a BSEA decision, dated May 14, 2007. In that decision, Hearing Officer Rosa Figueroa resolved a dispute between the parties regarding the appropriateness of Amherst’s proposed IEP. In her decision, Hearing Officer Figueroa determined what special education and related services were needed in order for Student to receive FAPE. The dispute at that time challenged the appropriateness of Amherst’s school-based program. Parents did not seek residential placement but instead asked the BSEA to order Amherst to “fund, supervise and coordinate a home/community-based program … designed by Parents and New England Business Associates”. Exhibit S-2, page 10 (Hearing Officer Figueroa’s decision).
Hearing Officer Figueroa found Amherst’s proposed IEP for the 2006-2007 school year (Student’s 9th grade) to be appropriate, with certain modifications. These modifications included the addition of services of an autism specialist, and ABA direct services and consultation (the decision did not specify the amount of these services). The Hearing Officer also required Amherst to increase the occupational therapy (OT) and physical therapy (PT) services, with the result that Student would receive OT for a half hour, twice per week; PT for a half hour, twice per week (in addition to daily PT carryover by special education staff); and speech-language services for a half hour, four days per week. No change was made in the extended day services of 150 minutes each day. Exhibit S-2, pages 35, 55.
The Hearing Officer’s decision provides a comprehensive description of Student and his educational history, including relevant evaluations, through the dates of the evidentiary hearing on March 2007. I therefore will not repeat this part of Student’s educational history, except that I note, below, one evaluation (the Assistive Technology evaluation) which has particular relevance to the instant dispute and one evaluation (by Dr. Pawlikowski) that had been completed but was not considered in the previous dispute.
On November 2, 2006, Student had an Assistive Technology Evaluation at the Collaborative Center for Assistive Technology and Training. The purpose of the evaluation was to help Student’s Team increase Student’s social interactions and communication. Patricia Walsh Cassidy, CCC/SLP and Dale Gardner-Fox, MS, RPT conducted the evaluation and recommended continued implementation of the Picture Exchange Communication system (PECS), and expanding it by adding auditory input into the symbols used as well as engineering the environment by placing individual talking buttons close to preferred activities. They found Student to be a candidate for use of a voiced output communication device, and recommended creating “core words” and “activity specific” overlays. An easel presentation should be used when Student was working with writing utensils. The use of a padded armchair with more hip and trunk support was recommended. They stated that in order for the augmentative communication to be effective, Student would have to be immersed in it. Exhibits P-26.
On October 10, 2006, October 31, 2006 and November 14, 2006, Parents’ private psychologist (Elizabeth Pawlikowski, PhD) conducted a psychological evaluation, which consisted of observation at school and home, staff interviews and review of evaluations and reports over the previous ten years. Dr. Pawlikowski issued a written report that included the following recommendations:


  • Student “needs evidence based treatment on a daily basis”.

  • A “Functional Analysis of Behavior … needs to be completed as soon as possible.”

  • “[Student] needs to develop self help skills in the toileting, dressing, self feeding, and basic communication areas, and can realistically do this in the coming 12 months, once the ABA classroom is up and running.”

  • “Once basic self help skills are developed, a plan to generalize them to home, and where appropriate, to public situations needs to be in place.”

  • “[Student] needs to learn at least a few practical ways to indicate ways to indicate needs—most individuals of his level of functioning can learn to use at least a few American Sign Language signs for basic needs such as toileting.” [Exhibit P-23.]


On December 5, 2007, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an IEP for 12/5/07 to 12/4/08, which Parents rejected because Parents wanted additional services during the school day, a longer extended day, additional summer services and a different placement. Exhibit P-32.
In the spring of 2009, Amherst conducted its three-year re-evaluation of Student, including a speech-language evaluation, occupational therapy evaluation, physical therapy evaluation, and an evaluation by Amherst’s BCBA (Elizabeth Smith, MEd, BCBA). Exhibits S-24, S-3A, S-4A, S-5A.
The evaluation, conducted by the BCBA (Ms. Smith) is the most instructive of these 2009 evaluations. In her report dated May 22, 2009, Ms. Smith stated that she conducted a thorough record review of Student’s entire tenure in the Amherst Public Schools (which began when he was three years old). Ms. Smith noted that there have been successes at school for Student and that “[i]t is worth noting that the success can be attributed to consistent approaches and delivery of service.” Exhibit S-4A, page 1.
With respect to communication, Ms. Smith’s report explained that Student does not yet appear to request items but is being instructed in the use of the sign “want” in order to build a foundation for requesting items. Ms. Smith then stated: “Ideally, his program will allow for the introduction of a broader communication approach—one that allows his [sic] to acquire communications tools (signs and approximations) while continuing to focus on shaping and eliciting his picture and vocal repertoire.” Exhibit S-4A, page 4. In her recommendations, Ms. Smith added: “[Student] should have a communication approach that allows his [sic] to be rapidly fluent in a system that he can control and manipulate in order to make his communication intents clear.” Exhibit S-4A, page 8.
With respect to eating, Ms. Smith’s report explained that Student “is able to feed himself with a modified (stabilized) bowl and spoon but requires adult prompting to limit the pace of his eating and the completion of each bite.” Exhibit S-4A, page 7.
With respect to toileting, Ms. Smith’s report explained that Student “is able to follow a toileting schedule with adult prompting and direction. He is less likely to indicate a need to change a soiled or wet diaper, but has remained accident-free for the majority (89%) of measured intervals.” Exhibit S-4A, page 7.
For the 2009-2010 school year, Corrina Trude was Student’s special education teacher. Testimony of White.
On September 30, 2009, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an IEP for 10/1/09 to 10/1/10. Exhibit P-41.
Through this IEP, Amherst proposed that Student receive the following direct special education services during the school year:


  • adaptive living skills instruction from a paraprofessional for 150 minutes on a daily basis and for 243 minutes on a daily basis from special education teacher or special education;

  • an hour per day, two days per week, of vocational training from a vocational teacher and one hour per day, two days per week of community skills from a vocational coordinator or special education paraprofessional; and

  • extended day services from the New England Business Associates (NEBA) staff for 150 minutes each day.


This proposed IEP also called for the following related services:


  • physical therapy for a half hour, twice per week;

  • occupational therapy for a half hour, twice per week; and

  • speech-language therapy for twenty minutes each day.


Also, academic support was to be provided by a paraprofessional in the regular education classroom for an hour each day.
Parents rejected the IEP, principally for the reason that Parents requested direct services from an ABA specialist. As compared to a previous IEP that included four hours per week of adaptive living skills instruction from a behavior analyst or behavior therapist (see exhibit P-32), this IEP included no direct services from a behavior analyst or behavior therapist. This IEP as well as the previous IEP called for six hours per week of consultation from a behavior analyst or behavior therapist. Parents also rejected the proposed placement. Exhibit P-41.
Between January 26, 2010 and February 12, 2010, Amherst’s psychologist (Patricia Schumm, PhD) conducted a school psychological assessment, through observation of Student, interviewing Mother, review of records and administration of the Stanford Binet Intelligence Scales (5th edition) and the Vineland Adaptive Scales (2nd edition). The “School Concerns” portion of the assessment included the following statement: “The classroom teacher indicated that she would like [Student] to have a formalized means of communication, i.e., through assistive technology, and /or to learn to communicate through signing, which might then enable staff to teach him to do more for himself.” During the assessment, Student “was not able to point with any degree of consistency to indicate his responses.” The assessment report concluded that “[b]ecause of [Student’s] very limited skills of communication, formal testing was attempted but not successful. This psychologist was not able to establish that [Student] understood the instructions at all, even when simplified, as in ‘Pick up the block.’” The assessment report concluded that attempts to assess Student’s intellectual ability “were not successful”. Exhibits P-22, S-6A.
The assessment report’s recommendations included the following:


  • “Increased communication, i.e. hand gestures, social stories with picture books; assistive technology.”

  • “If and when more effective communication is attained, other skills may be taught, i.e., increased independence with daily living skills.”

  • “Support [Student’s] relative strength in socialization skills by increasing his activity in community as well as by training him to participate at his ability level in community”.

  • “Vocational training may be attempted if and when a more effective and consistent mode of communication has been reached with [Student].” [Exhibits P-22, S-6A.]


Amherst’s written progress reports at the end of the 2009-2010 school year (dated June 15, 2010) indicated that with respect to the functional academics goal, Student made minimal progress and did not meet any of the benchmarks/objectives. With respect to the personal management goal, Student made minimal progress and partially met some of the benchmarks/objectives. With respect to the vocational goal, Student made minimal progress and partially met one of the benchmark/objective because “at times” he was able to push a cart from one point to another. With respect to the functional life skills goal, Student made progress by pressing a switch to turn pages when a story is being read to him, by feeding himself using adaptive equipment and only needing “moderate assistance to stabilize his wrist position” when eating foods that may slip off his spoon, and by completing several of the laundry tasks with assistance. With respect to the communication goal, he made minimal progress and did not meet his benchmarks/objectives. By June 15, 2010, he was imitating mouth movements by approximating lip closure 30% of the time, and given a structured speech-language task, he was able to press an icon (to indicate his preference or choice) at a level of 20% independence and accuracy. With respect to the motor goal, minimal progress was reported, and it was unclear from the report whether he met any of his benchmarks/objectives. Exhibit S-3.
For the 2010-2011 school year, Keith Arnett was Student’s special education teacher, and Jackie Condon was Student’s BCBA. Testimony of White, Mother.
On September 22, 2010, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an IEP for 9/22/10 to 9/21/11. The IEP Team meeting included Parents and Amherst staff, including Ms. Chase. This IEP continued to include no direct services from a behavior analyst or behavior therapist. On October 24, 2010, Mother fully accepted the IEP but rejected the placement. Exhibits P-34, P-35, S-6. This IEP was substantially the same as the previous IEP, discussed above, for 10/1/09 to 10/1/10. Exhibit P-41.
On November 29, 2010, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an amended IEP for 9/22/10 to 9/21/11. The services proposed in this IEP are substantially the same as the previous IEPs, discussed above, except that this IEP includes direct services (to address adaptive living skills) from a behavior analyst or behavior therapist for an hour, twice each week. The IEP Team meeting included Parents and Amherst staff, including Ms. Chase. The record is unclear whether Parents accepted or rejected this IEP. Exhibit S-7.
An observation of Student on February 14, 2011 regarding his eating lunch in the cafeteria indicated that Student “demonstrates improved skills when feeding himself in a quiet, non-distracting environment with one or two people.” For example, on two occasions, he was able to scoop the food and bring it to his mouth independently. “Overall, … he required moderate to maximum assistance for eating.” Exhibit S-5.
Amherst’s written progress reports at the end of the 2010-2011 school year (dated June 6, 2011) indicated that with respect to the functional academics goal, Student made minimal progress and did not meet any of the benchmarks/objectives. The functional academic benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were substantially the same as the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). With respect to the personal management goal, Student made minimal progress and partially met some of the benchmarks/objectives. The personal management benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were substantially the same as the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). With respect to the vocational goal, there is no indication of what progress has been made. The vocational benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were substantially the same as the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). With respect to the functional life skills goal, Student’s level of performance was described, but it was unclear from this description what progress had been made. The functional life skills benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were substantially the same as the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). With respect to the communication goal, he made minimal progress and met several of his benchmarks/objectives—more specifically, Student was able to use a two-button assistive technology device to request an object or activity in three out of four opportunities; he was able to follow a verbal command (paired with a visual signal) to stop drinking or eating; and he was able to intermittently vocalize the word “hi”. The communication benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were similar to the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). With respect to the motor goal, minimal progress was reported; he met the benchmark/objective of “transition[ing] from different levels to standing with improved body control for greater safety with close supervision/contact guard 80% of the time.” The motor benchmarks/objectives for this IEP (9/22/10 to 9/21/11) were different than the benchmarks/objectives from the previous IEP (10/1/09 to 10/1/20). Exhibit S-4.
On June 9, 2011, Amherst held an IEP Team meeting for the purpose of discussing further evaluations of Student. Mother and Amherst staff, including Ms. Chase and Ms. White, attended this meeting. Exhibit P-12.
For the 2011-2012 school year, Tina Agustin was Student’s special education teacher. Jackie Condon was Student’s BCBA until November 2011 when Ms. Tanguay became Student’s BCBA. Testimony of Agustin, Tanguay.
On October 6, 2011, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an IEP for 10/6/11 to 10/5/12. Parents fully rejected this IEP by e-mail of October 25, 2011. The services proposed in this IEP were substantially the same as those proposed in the previous IEP (exhibit S-7), discussed above, except that Amherst increased vocational skills to an hour each day (from two hours per week) and added a second paraprofessional for community skills for two hours per week. In their rejection of the IEP, Parents took the position that Student was not being taught to generalize what he had learned across all settings, that Amherst had failed to keep Student safe and healthy, that Student has been a victim of “possible bullying”, that Student should have been toilet trained by now, and that Amherst has generally failed to adequately address Student’s educational needs. Exhibits P-3, S-9, S-11.
On October 23, 2011, Judith Imperatore, EdD, conducted an independent “Partial Transition Assessment and Vocational Evaluation” (italics in original). Amherst paid for this evaluation. As a result of her evaluation, Dr. Imperatore generated a written report that included a number of recommendations. She explained in the recommendation section of her report: “Because of his dependencies, he is greatly affected by his surroundings and vulnerable to those caring for him. Without communication, he is further dependent.” Exhibit S-23.
In her report, Dr. Imperatore emphasized that even a student with severe disabilities, such as Student, “unequivocally” can “exercise [his] right to be self-determining”. She went on to explain:
a critical piece that needs serious attention that relates to self-determination in a major way, is the communication aspect. A push button device that provides an “I want” or “all done” was mentioned; however, it was not observed being used. Indication of a sure YES or NO response, the foundation of self-determination, is missing. This needs to be addressed. [Underlining and bold in original.]
The IEP Team should consider ways in which self-determination skills can be developed in every aspect of [Student’s ] programming. [Exhibit S-23, page 32.]
With respect to life skills, Dr. Imperatore further noted:
Also, assistive technology (AT) is advancing at an incredible rate. The last AT report for [Student] is dated 11-2-2006 by Hampshire Educational Collaborative. It is highly recommended this be updated. [Exhibit S-23, page 36.]
An additional IEP Team meeting was held on October 27, 2011. This did not result in agreement by Parents who continued to fully reject the IEP and placement. Exhibits S-11, S-12.
Amherst has maintained data regarding task analysis and skills being taught to Student from 12/31/10 to 10/24/11, as well as data charts for periods of time in January 2012. However, many of the charts are undated or are dated without providing the year. Exhibits S-21, S-22, S-9A.
By letter of November 18, 2011, Amherst’s Assistant Principal (Ms. Chamberlain) advised Parents that Julie Tanguay, a BCBA, had been hired “to provide the Autism Consult services previously provided by the late Jacqueline Condon.” Ms. Condon, Student’s previous BCBA, had died earlier in November 2011 as a result of an automobile accident. Exhibit P-19.
By letter of December 9, 2011, Amherst’s Assistant Principal (Ms. Chamberlain) advised Parents that Keith Arnett, one of the liaisons and teacher for the Developmental Studies Program, “will continue to be on medical leave for the next two weeks.” By letter of January 6, 2012, Ms. Chamberlain advised Parents that Mr. Arnett had resigned immediately and that Amherst would recruit a new teacher as soon as possible. Exhibit P-19.
Amherst’s most recent written progress reports dated January 27, 2012 assessed Student’s progress using the IEP goals and benchmarks/objectives from the expired IEP for the period 9/22/10 to 9/21/11. These progress reports did not indicate what progress has been made with respect to the functional academics goal or the personal management goal. With respect to the vocational goal, minimal progress is reported and no benchmarks/objectives were met. With respect to the functional life skills goal, Student’s level of performance was described, but it was unclear from this description what progress had been made. With respect to the communication goal, no progress was reported beyond what appeared in the June 2011 progress reports, except that it was reported that Student is able to greet people with a smile or sound vocalization and will raise his hand and wave “with tactile/hand over hand cuing”. It is clear from this progress report how much Student enjoys social contact and interaction. With respect to the motor goal, progress was reported but it was unclear to what extent he had met the benchmarks/objectives. Exhibit S-4.
On January 24, 2012, Parents’ educational consultant (Elisabeth Doyle, MS) observed Student in his educational program during the school day, during the after-school program, and at home. Ms. Doyle’s written observation report noted that all staff spoke to Student “with care and respect at all times” and she further noted that concern for Student’s safety “appeared to be paramount to all staff/family members.” The report then included the following recommendations:


  • Student requires a residential educational program in order to “maintain previously acquired skills and progress further.”

  • “Intensive, cross-situational toilet training should be addressed immediately”.

  • “On-going communication-based and functional activities should be the focus of [Student’s] school program.”

  • “Staff consistency and coordination of [Student’s] needs and goals should be addressed coherently throughout his entire day.”

  • Student should “have more socialization opportunities during the school day. Spending his full school day in a separate room does not allow for interactions with others.” Student “should have opportunities for facilitated interaction with other students—both within the school building and within his classroom setting (and in the community). It is recommended that [Student] be given time in the larger communal classroom rather than only in the smaller work room.” Exhibits P-11, S-24.


On January 24, 2012, Ms. Doyle observed Student in his school program from 1:25 pm to 3:45 pm, and observed Student at home from 4:00 pm to 4:45 pm. During the school day observation, Student was working with a paraprofessional as well as Ms. Tanguay (Amherst’s BCBA). Ms. Doyle reviewed Student’s records and spoke with Ms. White and Mother. Testimony of Doyle; exhibits P-11, S-24.
On February 2, 2012, Amherst held an IEP Team meeting, which resulted in Amherst’s proposing an IEP for 2/2/12 to 2/1/13, which Parents rejected. Exhibits P-8, S-19, S-20. On March 15, 2012, the IEP Team met again and proposed the most recent IEP, which is discussed in detail above. Exhibit S-11A.
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