BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Sebastian 1 v King Phillip Regional School District BSEA #09-1334
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred at the Catougno Court Reporting Offices in Worcester, MA on September 18, 2008 and September 22, 2008 and at the Bureau of Special Education Appeals (BSEA) in Malden, MA on September 25, 2008 and September 26, 2008. On September 26, 2008 the matter was continued to November 3, 2008 and November 10, 2008 to accommodate both School District and Parents’ remaining witnesses and both Counsels’ schedules. The matter was again continued for hearing on December 3, 20082. The Parties’ joint motion to continue the matter until January 5, 2009 was granted so that the Parties could receive and review the voluminous written transcriptions from the hearing.3 The record closed January 8, 2009, when written closing arguments were received from both Parties.4
Those present for all or part of the hearing were:
Marsha Stevens Educational Consultant
Suzanne Nixon Parent Advocate
Ann Marie Lasoski Parents’ Neuropyschologist
Barbara Woodland Out of District Coordinator, King Phillip Regional School District
Audrey Lacher Special Education Director, King Phillip Regional School District
Douglas Frazier Teacher, Cardinal Cushing School at Hanover (Cardinal Cushing)
Jean Fiske Former special education teacher, Bi-County Collaborative (BICO)
Barbara Sherman School District’s Nueropsychologist
June Smith Occupational Therapist, Cardinal Cushing
Lynn Lapointe Former vocational coordinator, BICO
Sam Shoenfeld Attorney for Parents
Regina Williams Tate Attorney for School District
Brenda Ginisi Court Stenographer, Catougno Court Reporting6
Judith Kent Court Stenographer, Wood Court Reporting, Cohasset
Maureen Pires Court Stenographer, Wood Court Reporting, Cohasset
Joan Beron Hearing Officer, BSEA
The official record of the hearing consists of Parents” Exhibits marked P1-P517 and School Exhibits marked S1-S158 and approximately 5 ½ days of stenographic-recorded oral testimony.
Did King Phillip Regional School District’s (KP) IEPs designating a program for a vocational and educational program at BICO for the 2006-2007 and 2007-2008 school years provide Seb with a free appropriate public education (FAPE) in the least restrictive environment (LRE)
If not, is Seb entitled to compensatory services?
Did KP commit procedural violations that denied Seb a FAPE?
If so, is Seb entitled to compensatory services?
If so, should any compensatory award be reduced or denied because Parents’ hearing request was not timely and/or because Parents did not give KP ten days notice of their unilateral placement at the Cardinal Cushing School (Cardinal Cushing)?
May compensatory services be in the form of tuition reimbursement and prospective services at Cardinal Cushing School (Cardinal Cushing)?
If so, was and is Seb’s program at Cardinal Cushing appropriately responsive to his special needs so that he can benefit educationally, thus entitling him to tuition reimbursement? 8
FINDINGS OF FACT
Sebastian (Seb), born May 1, 1986, is a friendly, handsome twenty-two year old resident of the King Phillip Regional School District (KP), interested in bowling, playing baseball, basketball and soccer, riding his bicycle, going out to eat and playing with the computer. He is also especially interested in cars (see S85, S49, S79/P25, S104 Mother, Nixon, Stevens, Lapointe). Seb has been a residential student since January 2, 2007 when his parents/ legal guardians unilaterally placed him at the Cardinal Cushing School at Hanover (Cardinal Cushing). When Seb is home on school vacations or holidays he resides with his Parents and legal guardians and elementary school age nephew and lives next door to his paternal grandmother (Mother, Grandmother, see also P50).9 Seb also has a 29 year old and a 27 year old half-brother and a twenty eight year old sister, all who no longer reside in the home; Id.
Seb has been eligible for special education services since he was three years old due to developmental delays falling at the moderate mental retardation level, delays in fine-motor/gross-motor and expressive, receptive and social language and visual perceptual deficits, (see generally S1-S15, S22, Mother). He received accepted special education and related services10 in preschool and elementary school pursuant to IEPs for a partial inclusion model that emphasized a multisensory approach, concrete and consistent functional learning with repetition and review (see S4, S11, S22/P26).
In the fall of 6th grade (SY 1998-1999), Seb moved to a partial inclusion program in the junior high with services in the resource room. He was not able to keep up with the work and as a result was placed at the Bi-County Educational Collaborative’s (BICO) Work Lab I program pursuant to an accepted IEP (Mother, see generally S15).11 Seb remained in the Work Lab I program until the end of the summer 2001 and did well there. There was good communication and coordination between the home and school so that Mother was aware of any behavioral issues and the things that Seb was working on in school (Mother, see S23).
Seb received a multidisciplinary independent evaluation at the Braintree Hospital on August 23, 1999 and August 24, 1999 (Mother, Lasoski). At the time of the assessment Parents noted that Seb had a tendency to imitate negative behavior of other children and engage in some physical aggression and tantrums that required repetitive low key feedback and occasional restraint to deescalate although behavior had improved due to Seb’s increased language skills (S21/P26, S22/P26, see also Mother). At the time of testing Mother also informed the Occupational Therapist (OT) that Seb continued to require assistance with manipulating a knife and fork simultaneously and with thoroughly brushing his teeth (S16/P22). Although Seb’s hearing was within normal limits, he scored at the 1st percentile in auditory discrimination tests and showed weaknesses in auditory decoding and short-term memory (S19/P22, see also S22/P22). Seb also showed decreased balance, strength and coordination as well as decreased motor planning skills and difficulty with visual perceptual and visual motor skills (S16/P22, S20/P22, S22/P22, see also Mother). Speech/language testing also showed that Seb had a significantly reduced ability to attend, process, comprehend, sequence and recall oral language (S17/P22, see also S22/P22). Seb also displayed expressive language skills at about a 3 ½ -4 year old level and deficits in pragmatic skills, characterized by poor topic maintenance, off-topic verbal interjections, perseveration and inappropriate laughter (S17/ P22, S22/P22, see also Mother). On neuropsychological testing by Dr. Lasoski, Seb showed social and activities of daily living skills (ADL) at the four to five year old level and on cognitive testing on the WISC III, Seb received a verbal score of 46, a performance score of 46 and a full scale score of 46, placing him in the moderate level of mental retardation (MR) (S22/P22, Lasoski). Dr. Lasoski noted that this level of functioning meant that Seb would benefit from some vocational training with moderate supervision. She also noted that those with moderate MR could attend to their personal care and could also benefit from training in social and occupational skills. She further noted that those with moderate MR may learn to travel independently to familiar places but would be unlikely to progress beyond the 2nd grade level (S22/P22).
As such, the Braintree Hospital team recommended a special education program that emphasized and targeted functional skills necessary for obtaining daily living and safety skills, with multisensory strategies to enhance language and auditory processing skills. These strategies included repetition, rehearsal, chunking, and simple and functional language that incorporated the use of scripts to aid in social skills training (P22/S22, S16-21). The Braintree Hospital team also recommended that Seb continue receiving Adaptive physical education (APE) and school based functional OT for two thirty-minute sessions a week to address fine motor and daily living issues, short-term outpatient OT to improve sensory processing, bilateral coordination and upper extremity and hand strengthening; continuation of speech/language therapy that would focus on functional communication and pragmatic skills and behavioral consultation (P22/S22, S16-21, Lasoski). Dr. Lasoski also recommended that Parents contact the Department of Mental Retardation (DMR) for financial support and additional resources such as respite care, and that Parents request that DMR provide access to a psychologist who is a behavioral consultant who could consult with the parents in the home and in the school as necessary (S22/P22, Lasoski).
Seb moved from the BICO Work Lab I program to the Work Lab II program in the North Attleboro High School in the fall of 2001. This change was effectuated because Seb was, at that time, fifteen years old and the TEAM felt that a high school vocational program was more appropriate for him (Lapointe, see S28, Mother). During this time and until approximately the end of the 04-05 SY Seb was in the exploratory phase of program working at jobs on campus such as the BICO office and the BICO cafeteria. He also participated in business tours at a nursery, a few animal facilities, and a supermarket. In addition people from the community came in to speak to Seb and his class about the different jobs that were available12 (Lapointe, S26, S80, S37, S39). Seb also went out into the community to the library, post office, local restaurants and businesses, attended career fairs in 2002 and 2004 and participated in job shadows, business tours and internships before participating in paid work (Lapointe, S80). The purpose of the exploratory phase of the program was for BICO staff is to get an idea of what each student’s stamina was and what their interests were (Lapointe).
Mother felt that when Seb moved to the Work Lab II program communication between home and school decreased. (Mother). Mom asked for more communication and BICO agreed to monthly meetings. BICO also provided daily communication sheets at Mother’s request that fairly consistently listed the skills that Seb worked on in each area of that day,13 the description of the work he did and the time period that the skill was worked on (Woodland, Lapointe, see P14). The communication log also provided a section for things to follow up at home and for parent comments, Id. BICO occasionally provided written communication regarding home/school follow up and Mother less occasionally provided comments (see P14, Mother). BICO also sent Parents required progress reports and felt that they gave Mother information at TEAM meetings that indicated that Seb was progressing with his goals and objectives with accommodations such as verbal cues and prompting.14 (Woodland, Lapointe, see also S25, S26, S27, S28, P14). However Mother did not feel that she received sufficient information to know what Seb was doing or where his weaknesses were, or what Parents could do at home to follow through on what they were doing at school (Mother, but see Woodland, Lapointe, Fiske, P14). BICO also provided progress reports that showed that Seb was making steady progress commensurate with his ability (see e.g. S25, S28). However Mother did not agree with the progress reports because at home Seb could not do many of the things listed on the progress reports. For example progress reports said that Seb could count and subtract, but at home Seb was not always able to distinguish between different amounts of money and Mother never saw him make change. In addition, Seb’s communication skills appeared to be higher at school than at home (compare Mother, S28).
BICO administered a three-year reevaluation of Seb during May and June of 2002 (see S29-S35). At the time of this evaluation, Seb was 5 feet, 8 inches tall and weighed 203 pounds (S30). The OT noted that Seb’s range of motion and strength had improved from a diminished state to within functional limits since the last evaluation in November 1998 (compare S15, S29). The 2002 OT evaluation also showed that Seb continued to have visual motor and visual spatial deficits, scoring between a four year, eleven month level and a six year, two month level in these areas (see S29, S34).
Seb’s receptive language skills at that time were approximately at a six to seven year level if presented with simple material; however when presented with complex or lengthy material such as understanding of time, money and sequencing or longer paragraph comprehension, Seb scored at a two year, eight month old level (see S32). Seb also displayed some deficits in pragmatic/social conversation skills at times being off topic or displaying inappropriate laughter with difficulty maintaining eye contact (S32, S33). However, when compared with the MR population, Seb displayed average to above average skills in community independence (S35).
Educational testing showed that Seb continued to exhibit delays in all areas, scoring in the mid first to mid second grade level in language arts and the low 3rd grade level in math skills (S31). The BICO evaluator found that Seb continued to learn best in a one-to-one or small group situation with new material presented using a multisensory approach and new skills broken down into small concrete steps with numerous opportunities for practice in an extremely structured environment with clear expectations and consistently applied consequences to maintain age appropriate behaviors (S31).
On or about June 2002 the TEAM met to review the three-year reevaluations and conduct an annual review. KP proffered an IEP for substantially separate academic, speech/language, vocational and social emotional services and continued OT and adaptive physical education that were accepted by Parents (S36, Mother). Progress reports for the 2002-2003, the 2003-2004 and the 2004-2005 school years continued to show that Seb was making steady progress commensurate with his ability (S37, S38, S39, S41, S43, S44, S45, S46, S50, S51, S52, S53, S54, S55, P9, P10). Mother continued not to believe these progress reports because Seb was not doing many skills independently at home. She did not however tell the TEAM that she disagreed with the IEPs for continuation at the BICO Work Lab II program and accepted all the IEPs for the 2002-2003 school year (SY), the 2003-2004 SY and 2004-2005 SY including a March 2004-March 2005 IEP that eliminated Seb’s half hour a week of vision services to consultation four times per year (S40, S42, S41, S42, S48, S49, Mother).15
In approximately late 2002-2003, Seb began moving from school-based work experiences to community work experiences found by Mother (Mother, Lapointe). (Mother, Lapointe). One such experience was with Sisters 16 House of Pizza folding pizza boxes Id. This remained a private placement. In 2002 Mother also found Seb a job at the Double Con Company (Double Con) located next to her place of employment. Seb began there for a two-hour period one day per week (Mother). Seb’s job at Double Con was to run paychecks through a stamping machine and to perform some light cleaning responsibilities such as vacuuming and emptying the trash (Lapointe, Mother, S85). At school, Seb continued to engage in functional academics, and engaged in career awareness opportunities, such as participating in business tours, exploring the community, job shadows,17 and work on campus (Lapointe, see S80, S28, S36, S39). Ms. Lapointe and BICO also worked with Seb on functional communication skills addressing this area through concrete directions, a social skills group with the adjustment counselor, and retrieval strategies as well as vocational skills such as preparing a resume and interviewing. Seb was not able to prepare a resume, interview or some other prevocational skills independently but with assistance, modeling, verbal cuing and/or repetition with gradual fading over time he did make gains requiring less cueing (Lapointe, S85, see e.g. S28, S41)
During approximately this time period, BICO also began travel training through the Dial a Ride program so that Seb could access off-site vocational experiences (Lapointe). The Dial a Ride program is a community-based public transportation service for the elderly and disabled (Lapointe, Mother, Fiske). Dial a Ride busses are van-sized vehicles that only had a capacity of eight to ten people and usually carried no more than four passengers. Often Seb would be riding the bus by himself or with one other person (Lapointe). Before passengers were allowed to access the Dial a Ride program, the transportation company required eligibility approval to use it (Lapointe, Fiske). The transportation company also required that drivers pass criminal record checks. Seb knew the three or four bus drivers and most of the riders because they consistently traveled the same route at the same time and the drivers (and Seb) knew where Seb needed to exit (Lapointe).
In addition, BICO required that students receive training on how to access the transportation and received frequent reports about the students’ use of the system (Lapointe, Fiske). If, as in Seb’s case, the Parent(s) consented to having a student use the transportation and the student was approved to ride the bus, the student would get trained to use the bus (Sherman, Lapointe). For Seb, this meant that he was monitored by BICO staff regarding getting on and off the bus, given role play, training in class and repeated practice regarding paying the bus driver.
BICO also coordinated the travel training with its banking program. The banking program was set up so that Seb (and his classmates) would go to a credit union once a week, and with assistance, withdraw money for his needs, including bus transportation (Lapointe, Mother, Woodland, Fiske, see also P18, S85). The Dial a Ride program was also coordinated with Seb’s social skills training where BICO staff would give Seb a written script for accessing, canceling or otherwise changing the bus transportation, sit with him and cue him regarding what telephone numbers to dial and what to say if needed (Lapointe, see also Mother, S85).18
In addition, the transportation program was coordinated with a safety awareness program in the classroom (Lapointe, see S85). When students first began travel training, they would be given maximum assistance, and, depending on their needs, this assistance would fade where staff would shadow the student by following the bus in a BICO van. Although Parent at hearing indicated that she was afraid that Seb would not be safe on the bus because he did not have appropriate understanding of strangers or street awareness, she did not voice concerns about his safety to either BICO or KP staff. Nor did Parents, or later on her Advocate, make any requests to remove Seb from the Dial a Ride system (Mother, see also Nixon). Seb always got to his job site and no safety incidents occurred on the bus. In addition, Seb was not required to cross any streets (Mother, Sherman, Lapointe, Fiske). In addition, reports from the Dial a Ride program indicated that Seb was appropriately behaved on the bus (Sherman, Fiske).
During the 2003-2004 School year, BICO began moving Seb from the exploratory phase of the BICO program to more community-based experiences (Lapointe, Fiske, S80, S42, S49). In April 2004 Ms. Lapointe set Seb up with an interview at the ABC Corporation and Seb was one of the students selected for a position to do painting and some light janitorial tasks (Lapointe, Mother). In approximately October 2004, Ms. Lapointe received a call from the employer who told her that he felt that Seb was not interested in the work and the pace of Seb’s work was not up to his capacity. Ms. Lapointe talked to Seb who told her that he didn’t care if he kept working at the ABC Corporation. Ms. Lapointe contacted the employer and together they decided that the employer would meet with Seb and Ms. Lapointe to explain why he was being let go (Lapointe). When Ms. Lapointe asked Seb if he understood what the employer was telling him, he told her “yeah I think I just got fired”. 19 Seb did not appear either at the exit interview or thereafter to be upset about being let go (Lapointe).
On September 24, 2004, Seb was, pursuant to the Dial a Ride suspension policy, suspended for thirty days from using the Dial a Ride because he owed fares totaling $6.25 for failing to show up or cancel rides on July 13, 2004, July 14, 2004 and September 23, 2004 (P18). The Dial a Ride company sent Seb a copy of the suspension policy and a written letter regarding this. Seb was not able to comprehend the letter because the wording was too advanced for him (Lapointe, Mother, see also Stevens, Lasoski). However, Ms. Lapointe verbally went over the reasons why Seb was suspended and he understood why he could not take the bus. Ms. Lapointe and Seb worked on a letter for Seb to send to the bus company. Parents knew about the letter and did not object (Lapointe). The letter was sent so that Seb could understand why he was suspended and for him to take accountability for his actions (Lapointe). On October 1, 2004, Seb typed and signed a letter that Ms. Lapointe assisted him with that said:
Im (sic) sorry for the delay in my payment of the bill. I forgot to give you the money. I would like to have my transportation back because I like going to work in Attleboro. Here is my check….
[Sebastian (last name)].
Seb was able to resume bus transportation and did not have any incidents since that time (Lapointe, Mother, see S53).
However, after the suspension incident, Mother began to feel that the BICO program was inappropriate for Seb, and she began not to trust BICO because she felt that Seb’s progress reports indicated that he was achieving goals and objectives independently and he was not doing this at home (Mother). However, the progress reports, communication logs, and IEPs during this time indicated that Seb continued to need assistance to pay for bus transportation (Mother, see also S49, S50, S52, S53, S54, S55).20 Although Seb occasionally was able to bring his paycheck and independently fill out his deposit slip, he more often required verbal prompts to bring his paycheck to the bank, fill out a deposit slip or look for his paycheck in his belongings (Mother, Lapointe, P14).21 There were many times that Seb was able to participate in the banking program with fading assistance (Lapointe). However, there were approximately nine occasions during his tenure with BICO that Seb did not have his paycheck with him or could not locate it, and on at least four occasions he was not permitted to go to the bank despite a request from Mother to have Seb withdraw the money from his savings account (Mother, see P14). Although Parents did not feel that the Work Lab II/Life Roles Transition program22 at BICO program was appropriate and/or being implemented for Seb, they accepted the March 31, 2004-March 31, 2005 IEP in full (Mother, Lapointe, Sherman, Woodland, see S49).