ME DOE #00.011: Parent v. Sanford -...

Stephen G. Ulman

P.O. Box 687

Caribou, ME 04736

Special Education Due Process

Hearing Decision

“Parents v. Sanford School Dept.”

CASE NO. #00.011

COUNSEL FOR PARENT: Eric Herlan

COUNSEL FOR SCHOOL: Richard O’Meara

HEARING OFFICER: Stephen G. Ulman

THIS HEARING WAS HELD AND THE DECISION WRITTEN PURSUANT TO TITLE 20-A @ 7207, et. seq., 20 USC, @ 1415 et. seq., AND IMPLEMENTING REGULATIONS.

On January 14, 2000, the Department of Education received a request for a Due Process Hearing from parents.

The pre-hearing conference was conducted on February 9, 2000 by telephone. All documents were entered into the record and numbered. The Hearing convened on February 16, 17 & 29, 2000 at the Sanford superintendent’s office.

Five witnesses gave testimony for the parents and four witnesses testified on behalf of the school. The hearing officer took official notice of the Report of the MADSEC Autism Task Force March 1999. The record was held open until March 10, 2000 to allow for written closing statements.

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I. Preliminary Statement

The student is xx years old (dob), lives in Maine with his mother, father and brother, and attends kindergarten. He receives special education services because of special educational needs associated with autism. The student’s first two years of pre-school were at Child Development Center (CDC) in New Hampshire (1996-1997, 1997, 1998). As the result of an evaluation at Ervin Children’s Clinic in Waterville, Maine in 1998, it was recommended that the student be educated using a program called Applied Behavioral Analysis (ABA). ABA uses discrete trial therapy which is a 1:1, mass repetition program. CDC implemented ABA at the rate of 10 hours per week during the 1998-1999 school year. During the summer of 1999 the student continued to receive ABA programming, first at CDC in July and then at Sanford’s Carl J. Lamb School in August, where he received 15 hours of ABA per week.

The student’s Individualized Educational Program (IEP) for the 1999-2000 school year ordered 12.5 hours of ABA per week as well as regular classroom time, 2 hours per week speech-language therapy, and 1.5 hours per week occupational therapy.

On December 17, 1999 the Pupil Evaluation Team (PET) reconvened and modified the September 24, 1999 IEP to address issues in two of the AM kindergarten classes, namely circle time, and work jobs. On December 20, 1999 the students full-time one on one aide resigned. On December 22, 1999 SSD reconvened the PET and ordered the student placed in the Spurwink Program for a 30-day period for diagnostic work. On January 10, 2000 the SSD reconvened the PET, modified the IEP goals and placed the student in the Spurwink Program. On January 14, 2000 the parents requested a Due Process Hearing. On February 10, 2000 the Hearing Officer ordered “Stay Put” as the September 24, 1999 IEP. On March 16, 2000 the SSD reports that they complied with that “Stay Put” order.

The parents have kept the student at home following the 1999 Christmas vacation.

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II. Issue for Hearing

Do Sanford School Department’s (SSD) proposed January 2000 Individualized Educational Program (IEP) and placement fail to provide the student with a free appropriate public education by reason of SSD’s procedural violations, including SSD’s failure to base its proposed IEP upon an evaluation of the student’s unique educational needs, SSD’s failure to adhere properly to the Pupil Evaluation Team Meeting (PET) process, and/or Sanford’s predetermination of the student’s placement in the Spurwink classroom due to lack of district staff to implement the student’s program?

Do SSD’s proposed January 2000 IEP and placement fail to provide the student with a free appropriate public education by reason of their failure to be reasonably calculated to confer meaningful benefit in the least restrictive environment appropriate to meet the student’s unique educational needs?

Is SSD in violation of the student’s rights under the “stay put” provision of the IDEA and parallel Maine law by reason of its failure or refusal to implement the student’s last agreed-upon program and placement during the pendency of due process proceedings?

Is the student entitled to compensatory educational services, reinstatement of his September 1999 program and placement, and/or relief by virtue of the above?

III. Finding of Fact and Stipulations

Facts

Issue #1

In SSD there is only one teacher trained to do ABA discrete trial and the student often stays home when the teacher is absent. PW-3, SW-1

No second educational technician was trained to do ABA in the event that the regular educational technician was absent or resigned. SW-1

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The Spurwink program services up to 8 children with special needs. SW-1, SW-4

The 12/24/99 PET was held with less than 7-day notice and after the parent indicated discomfort about their lack of help and without the parents signing a waiver of the 7-day notice. SW-1, 25

The SSD Special Education Director did not ask the student’s educational technician to stay on until a replacement could be trained. SW-1

The Spurwink program was full up until December and could not have taken another student. SW-4

Issue #2

The student’s December 22, 1999 IEP was changed based on staffing issues. PW-2, 3, #1

Goals and objectives on the January 10, 2000 IEP were changed based on needs of Spurwink classrooms. PW-2, 1, P3-P10, 49

Spurwink placement was not discussed at the 12/17/99 PET. SW-1

The student has been receiving special help from professionals such as: physical therapist, speech therapists, and occupational therapists most of his life. PW-1, 228-229

The student was first identified as autistic at 4 years of age (1997) by Dr. Pinto-Lord, M.D. PW-1, 174

The Applied Behavioral Analysis Program (ABA) was first recommended by Maine General Medical Center, Developmental Evaluation Clinic in May of 1998. PW-1, 132, 133

The ABA program was successful and the student made significant progress during the 1998-99 school year. PW-1, 73, PW-3, PW-4, SW-1

The 1998-99 school year was a full day program beginning at 8:30 a.m. until 2:30 p.m. PW-1

The student needs mass repetition. PW-1

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The student’s kindergarten program was delivered at the Child Development Center (CDC) under contract with the SSD. PW-1, SW-1

The May Center provided special education consultation @ 6 hours per month under contract to SSD. PW-2, PW-3

The May Center consultant was responsible for breaking the Individualized Educational Program (IEP) goals down into teaching strategies to be implemented and child change to be measured by the Educational Technician III (ET-3) PW-2

The student was mainstreamed in kindergarten with the educational technician for ½ day during the fall of 1999. PW-2, SW-1

By October 27, 1999 the student’s behavior was interfering with his learning and an Assessment and Behavioral Plan was developed by the consultant from the May Center. PW-2, 29

The student was having difficulty during “circle time” and “work job time” during morning kindergarten in the fall of 1999. PW-2, SW-1

The mainstream program (1999-2000) at SSD was needing some tweaking, but was coming together and was of educational benefit. PW-2

The May Center consultant recommended that another person be trained to fill in for the educational technician if needed. PW-2

During the fall of 1999 the student was beginning to get acclimated to kindergarten and the other students were getting use to the student.

PW-2, 24

The Spurwink classroom does not do ABA. PW-2, SW-1

During the fall of 1999 the student’s IEP called for 12.5 hours per week of ABA time with the one on one educational technician in the p.m. PW-2

SSD tried regular bus transportation, however, the student received warning slips for kicking his sneakers off and taking off his seat belt. PW-1, P-86

The school offered transportation on a regular education van with a monitor. PW-1

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The student’s IEP was modified on December 17, 1999, to include: one on one time outside class during “circle time” and “work jobs”. On December 20, 1999 the student’s educational technician resigned and on December 22, 1999, the IEP was again modified to diagnostic placement at Spurwink Autism classroom. The December 22, 1999 PET also decided to advertise for an educational technician to replace the one who resigned. PW-1, 28, 26, P-88

During the fall of 1999 the student’s mother kept the student home three times because of concerns about untrained substitutes. PW-1

The student’s special education consultant recommended reversed mainstreaming to help bridge the difficulty with “circle time” and “work jobs”. PW-1, PW-2, 28, 31

The kindergarten class that the student attended (1999-2000) was caped by Sanford at a maximum of 12 students. PW-1, PW-2

The student learns best one on one then generalize into regular classroom. PW-3

The student needs an inclusion model rather then self-contained model. PW-3

The student’s mother is very committed to what she feels best for her boys. SW-1, PW-1

The SSD Director of Special Education recognized that the school needed to work with the student’s mother for many years and was willing to make special concessions to the mother in an attempt to get along. SW-1

The mother was adamant about what she wanted. SW-1

Children with autism, such as the student, generally experience difficulty with transitions. SW-1, SW-4

In 1998-99 the ABA program at CDS was for 10 hrs/wk. PW-4, SW-1

The September 24, 1999-2000 IEP called for 12 hrs/wk ABA, but SSD delivered about 4 hrs/wk ABA. SW-1, SW-2, 48

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The SSD Special Education Director does not believe ABA learned behavior generalizes. SW-1

The student stayed at school (after the other kindergarten students had gone home) for his ABA, speech-language therapy, and occupational therapy. SW-1

The student could have attended and benefited from the special education kindergarten for circle time and work jobs, but the PET chose a more restrictive setting with the one on one aide. SW-2, SW-3

The educational technician resigned because of her frustration with the lack of responsiveness to the student’s lack of a working IEP. SW-2

The student did not do work jobs in the classroom, but could do work jobs in the one on one setting. SW-2

The student became less disruptive during recess and lunch, but did not interact with other students or adults. SW-2

The regular kindergarten students would try and engage the student, but the interest was not returned. SW-3

The Spurwink program needs family involvement to be most successful. SW-4

The children in the Spurwink program go into the mainstream for lunch, recess, and gym. SW-4

SSD has reservations about whether or not ABA works and should be used in public school. SW-1

The Spurwink program was specially designed and implemented by SSD specifically for students with special needs similar to the needs of the student. SW-1

Issue #3

It takes between 6 and 12 hours to train an educational technician in doing ABA with the student. PW-2, PW-3, 93, 108

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The student’s December 22, 1999 IEP was changed based on staffing issues. PW-2, 3, #1

Goals and objectives on the January 10, 2000 IEP were changed based on needs of Spurwink classrooms. PW-2, 1, P3-P10

The Director of Special Services first learned of the educational technician resignation on 12/21/99. SW-1

Advertisement for replacement educational technician ran week of 12/27/99 in two local papers and was posted in all SSD buildings. SW-1

The December 22, 1999 IEP determined to advertise for a new ABA educational technician. PW-1, 28, 26, P88

Stay put was identified as the September 24, 1999 IEP and ordered implemented by the Hearing Officer on February 10, 2000. SW-1

It took the special education consultant two weeks (about twelve hours) to train three instructors to provide discrete trial and back-up at CDC for the student’s 1998-1999 school year. PW-4

The new educational technician for “stay put” was hired as of 2/28/2000 and was expected to be trained and working by 3/13/2000. SW-1

SSD learned of the resignation of the student’s ABA educational technician on December 21, 1999 and on December 22, 1999 the PET determined to advertise for a replacement.

Issue #4

When there is an interruption in services the student regresses. PW-1

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V. Conclusion

Issue #1

The PET interrupted the implementation of the goals and objectives of the September 24, 1999 IEP (as modified by the determinations of the December 17, 1999 PET meeting) when on December 22, 1999 a 30-day diagnostic placement was ordered at the Spurwink classroom. The preponderance of the evidence indicates that this placement change was ordered, not because of the PET determination of the student’s need for a placement change (they had just met on December 17, 1999 and reaffirmed with slight modification the September 24, 1999 IEP), but by the resignation of the only trained ABA educational technician on staff. At that time SSD could have talked to the resigning educational technician and asked her to stay on until a replacement was trained or contacted the May Center to provide the 6-12 hours of training necessary to train the other educational technician who was currently working with the student. They did not. Rather, they chose the educational option of diagnostic placement in the Spurwink classroom over the objections of many of the December 22, 1999 PET members. This option would not have been available earlier in the year as the Spurwink classroom was at its maximum of 8 students until December 1999 when a tuition student returned to their home district. On January 10, 2000 the PET reaffirmed the Spurwink placement without diagnostic information supporting the need for change of placement.

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The Spurwink placement was made by SSD, not based on the educational needs of the student, but rather the administrative needs of SSD. This action is in violation of the Maine Special Education Regulations @ 1.3 where they state:

“1.3 Free Appropriate Public Education

The guarantee of equal educational opportunity entitles each student with a disability residing in the State, including students with disabilities who have been suspended or expelled, to be provided with a free appropriate public education that emphasizes special education and supportive services designed to meet their unique needs and prepare them for employment and independent living. This education includes special education and supportive services.”

and again at:

“11.2 Criteria – Least Restrictive Educational Alternative

Each Individualized Education Program shall be developed in accordance with the principle of the least restrictive educational alternative. Criteria for the determination of the least restrictive educational alternative shall include the following:

A special education placement shall be based on the student’s Individualized Education Program and shall be reviewed at least annually;

A student with a disability shall be educated with non-disabled peers and be provided an opportunity to participate in non-academic and extracurricular activities to the maximum extent appropriate.”

Issue #2

The educational programming used in the Spurwink classroom at SSD does not use ABA methodology, which to date is the only programming which has been demonstrated to work with this student. The Report of the MADSEC Autism Task Force of the Maine Administrators of Services for Children with Disabilities (MADSEC) March 1999 describes ABA as the only type of programming for students with autism that is “substantiated as effective based upon the scope and quality of research”.

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The student has not shown the level of growth at SSD that was reported at CDC, even though his September 24, 1999 IEP calls for an increase in ABA from 10 hours per week to 12.5 hours per week at SSD. Upon closer examination the preponderance of the evidence indicates that although SSD agreed to provide 12.5 hours of ABA per week, they only delivered about 5 hours per week during the fall of 1999.

For SSD to abandon ABA mainstream program and place the student in the Spurwink classroom without first implementing the September 24, 1999 IEP at appropriate levels would prove contrary to the principal of “reasonably calculated to benefit”. The mainstream/ABA program is reasonably calculated to benefit this student based on student history and MADSEC research. The Spurwink classroom benefit to this student is an unknown, and until such time as diagnostic information or student performance indicates a need for change to the type of programming offered in the Spurwink program, no placement change is needed.

The preponderance of the evidence shows that SSD did provide transportation in the LRE possible. Prior to changing the student’s transportation from the regular bus to a smaller van with a van monitor, SSD attempted to transport on the regular bus, but the student demonstrated a need to be transported in a more controlled environment. This process meets the requirements of the principles of LRE.

Issue #3

SSD learned of the resignation of the student’s ABA educational technician on December 21, 1999 and on December 22, 1999 the PET determined to advertise for a replacement. The advertisement ran in two local newspapers the week of December 27, 1999. On February 9, 2000 the Hearing Officer ordered “stay put” as the September 24, 1999 IEP. On February 18, 2000 the Hearing Officer ordered SSD to make a good faith effort to comply with the “stay put” order. (Hearing Officer’s letter to Mr. Herlan and Mr. O’Meara). On March 16, 2000 “stay put” was available to the student (letter dated March 8, 2000 Ms. St. Cyr to parents).

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The preponderance of the evidence indicates that “stay put” was ordered February 9, 2000 and by February 18, 2000 SSD was making a good faith effort to re-implement the goals and objectives of September 24, 1999 IEP.

Issue #4

Is the student entitled to compensatory educational services, reinstatement of his September 1999 program and placement, and/or relief by virtue of the above?

As concluded earlier under Issue #1 the placement changes made at the December 22, 1999 PET and reaffirmed at the January 10, 2000 PET were made based on administrative and not student’s needs and are therefore in violation of MSER (see Conclusions Issue #1). Lost educational time from January 3, 2000 until the implementation of “stay put” on March 16, 2000 are due the student as compensatory education.

The December 22, 1999 PET meeting was not valid because the student’s parents were not provided the required prior notice and because it ordered a placement change, as did the January 10, 2000, that placement change was not motivated by the needs of the student.

V. Order

Issue # 1

SSD will continue to implement the September 24, 1999 IEP as modified December 17, 1999 until such time as the PET determines that the student’s needs, based on diagnostic information, dictates a need for change. Annual IEP reviews will be made in accordance with MSER.

SSD will train a second educational technician to insure a continuance of service in the event one educational technician becomes unavailable.

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Issue #2

SSD will continue to use ABA methodology with the student until such time as diagnostic information (including classroom observation) suggest a needed change in methodology. Where and how this ABA methodology is delivered to the student will be based on the principles of Least Restrictive Educational Environment. (LRE).

Issue #3

SSD is in compliance with “stay put”. There is no order.

Issue #4

The PET will reconvene within 20 school days to design IEP modifications which compensate the student for educational time lost between January 3, 2000 and the date on which “stay put” was made available to the student. This compensatory education must be complete by April 1, 2000.

WITNESS LIST

PARENT’S

PW-1 Mother

PW-2 Kathryn Tyrell May Center ABA Consultant

PW-3 Jennifer Quiet Former May Center ABA Consultant (by telephone)

PW-4 Betty Hendrickson Education Technician at Child

Development Center

PW-5 Diane McManus Teacher at Child Development Center Father

Dr. Mark Steege USM, Behavioral Consultant

Nichole LaHaie Speech-Language Therapist

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WITNESS LIST

SCHOOL’S

SW-1 Elizabeth St.Cyr Director of Special Education

Dr. Kevin Mularky Psychiatrist, Consultant

Dr. Giovanna Hurley Psychological Examiner

SW-4 Dr. Linda Butler Spurwink site supervisor

Lynn Cooke Supervising teacher

SW-3 Deborah Smith Kindergarten teacher

SW-2 Michele Legere ADA educational technician

Sheila Sylvester Special Ed Teacher

Karen LeMoine Program Manager

EXHIBIT LIST

PARENT’S

P-1 Letter from E. St. Cyr to Parents(2/03/00)

P-2 Parent’s List of Concerns with proposed Spurwink Class Placement

P-3 C. Maurice, ed., Behavioral Intervention for Young Children with Autism, p. 66-71

P-13 Student’s data collection binder re: progress on goals and objectives (Fall 1999)

P-63 Student’s Behavior Charts (Fall 1999)

P-82 Letter from Parent to Laidlaw Transit, Inc. (09/28/99)

P-84 Letter from Parent to B. Hampton (09/27/99)

P-86 Bus warning slips (09/08/99 & 09/13/99)

P-87 Letter from B. Hampton to Parents(7/21/99)

P-88 Letter from M. Legere to E. St. Cyr (12/20/99)

P-89 Parental Notice (Review of Program) (12/10/99)

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EXHIBIT LIST

SCHOOL’S

1 PET meeting minutes for meeting on January 10, 2000

3 2000-2001 IEP (dated January 10, 2000)

18 Letter from Ms. St. Cyr to Parents, dated 1/4/2000

20 E-mail to Ms. St. Cyr from Ms. Lemoine, dated 1/3/2000

21 Winter 1999 progress note from occupational therapist

22 Letter from Ms. St. Cyr to Dr. Butler (Spurwink), dated 12/23/99

23 Advertisement for technician employment

24 Memo from Ms. St. Cyr to Superintendent McCormack, dated 12/22/99

regarding position opening

25 PET meeting minutes, dated 12/22/99

27 PET meeting minutes, dated 12/17/99

29 Functional assessment and behavior support plan, dated 10/27/99

33 Partial letter received from school, circa early November 1999

34 Graded occupational therapy goals

35 Letter from Department of Human Services to Sanford Schools, dated 10/22/99

36 Memo from Parent to Laidlaw Transit, dated 10/12 and 10/20/99

38 Memo from Ms. St. Cyr to various providers, dated 10/18/99

39 Letter from Parents to Mr. Hampton, dated 9/28/99

40 PET meeting minutes, dated 9/24/99

47 Amended PET meeting minutes from meeting on 9/24/99

49 IEP for 1999-2000, dated 9/24/99

65 Quiet consultation report, dated 9/9/99

67 Letter from Parents to Ms. St. Cyr, dated 9/24/99

68 Requested participants at PET meeting from mother and father

69 Copy of envelope of letter sent to Ms. Hovey

70 Faxed letter from Jan Steffens (speech and language),dated 8/16/99

71 Letter from Ms. Manley (May Center) to Ms. St. Cyr, dated 8/12/99

72 Letter from Ms. St. Cyr to Ms. Manley, dated 7/28/99

73 PET meeting minutes, dated 6/29/99

75 Preschool teacher report, dated 6/99

77 End of year occupational therapy summary, dated 6/15/99 (Ms. Phelps)

79 Speech and language report from Ms. Faro, dated 6/14/99, with progress reports

83 Letter from Ms. Faro to Ms. St. Cyr, dated 6/2/99

85 Winter progress reports from preschool teacher, dated 3/23/99

86 Occupational therapy report, dated 3/3/99

87 PET meeting minutes, dated 3/3/99

88 Teleconference notes, dated 1/20/99

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89 Quiet behavior consultation, dated 1/1/99, 1/7/99, 3/3/99, and 9/9/99

97 Quiet behavior consultation, dated 12/16/98 with attachments

100 Letter from Ms. St. Cyr to Parents, dated 12/14/98

101 Letter from Parents to Ms. St. Cyr, dated 11/17/98

102 Quiet behavior consultation, dated 12/16/98

103 Quiet behavior consultation, dated 11/30/98

105 Quiet behavior consultation, dated 11/5/98

106 Letter from Ms. St. Cyr to Parents, dated 11/6/98

107 Amendment to PET meeting minutes of 8/27/98, dated 10/28/98

109 Occupational therapy progress note, fall ‘98

110 Quiet behavior consultation, dated 10/20/98

111 Quiet behavior consultation, dated 9/30/98, with attachment

113 PET meeting minutes, dated 10/13/98

118 Fall ’98 progress notes from occupational therapist

119 Letter from Ms. St. Cyr to Ms. Ward, dated 10/2/98

120 Quiet behavior consultation, dated 10/20/98

123 PET meeting minutes, dated 8/27/98

124 Letter from Ms. Manley to Ms. St. Cyr, dated 7/27/98 (May Institute)

125 Speech and language treatment summary (Ms. Burrows), dated 6/98

127 CDS Team meeting summary, dated 6/17/98, with attached IESP

132 Developmental evaluation report from the Edmund N. Ervin Pediatric Center

145 CDS progress reports, dated 3/98

148 CDS assessment data, dated 4/98

151 Teleconference notes from 3/98

153 CDS letter to Marti, dated 1/30/98

154 CDS progress report, dated 12/97

156 Minutes from meeting, dated 9/23/97 (CDS?)

159 Third quarter developmental therapy progress report, dated 9/97

161 CDS IRSP plan, dated 9/7/97

168 IFSP, dated 9/7/97

173 Report from Dr. Pinto-Lord, dated 7/31/97 and 3/13/97

175 Treatment progress sheet from the Center for Communication, dated 8/98

180 Child Development Center progress report for 1997-98

184 Progress report from Center for Communication, dated 11/22/96

187 Child Development Center team meeting notes, dated 10/7/96

189 Child Development Center assessment, dated 10/96

190 Cambridge Pediatric Center neurological evaluation, dated 2/96

194 Report from Dr. Pinto-Lord, dated 9/13/96

195 Report from Dr. Pinto-Lord, dated 4/6/96

196 Report from Dr. Pinto-Lord, dated 3/11/96

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197 CDS feeding evaluation, dated 2/29/96

202 Pediatric physical therapy report, dated 2/13/96

204 Progress report for 1996-97 CDS year

206 Pediatric physical therapy report, dated 10/19/95

207 Occupational therapy evaluation, dated 7/26/95

211 Pediatric physical therapy report, dated 7/26/95

214 Pediatric physical therapy report, dated 4/20/95

215 Speech and language evaluation, dated 7/13/94

218 Audiological assessment, dated 8/1/94

220 Report by Dr. Pinto-Lord, dated 5/20/94

221 CDS screening report, dated 6/16/94

224 Pediatric physical therapy evaluation, dated 5/9/94

228 Report by Dr. Pinto-Lord, dated 2/25/94

230 May Institute progress reports, Sept. to Dec. 1999

235 1998-1999 IEP

245 1998-1999 graded IEP objectives

249 Quiet Behavior Consultation, 4/1/99

250 Speech and language progress reports, Sept. to June 1999

264 Occupational therapy progress reports, Winter 1999

265 Pre-school report, April 1999

266 Child Development Center Assessment, April 1998

269 Spurwink Parent checklist report form

270 Autism Paper, November 1999

299 Lovaas Paper, 1998