BUREAU OF SPECIAL EDUCATION APPEALS
SUMMARIES OF CASE DECISIONS
2013-2014
Hearing Officer: Lindsay Byrne
Decision Date: November 26, 2013
The issues were whether the District’s IEP was reasonably calculated to provide FAPE and if not whether he required placement in the District’s ELC classroom.
Shrewsbury’s ELC classroom was a substantially separate program designed for students with significantly greater behavioral and instructional needs. The Student was 5 years old at the time. His parents expressed longstanding concerns regarding his speech and language development and self stimulatory behaviors. Before starting school, he was privately evaluated where the evaluator identified difficulties with syntax, morphology, pragmatics, articulation, and receptive and expressive language as well as red flags for autism spectrum disorder (ASD). He was subsequently enrolled in the District’s integrated preschool as a typically developing student. The District conducted its own evaluations and showed average to very superior cognitive and preacademic skills, average social and adaptive functioning, and developmental articulation errors. The Team found the Student eligible for special education based on developmental delay and proposed an integrated preschool. Services included speech language therapy and direct social skills interaction. Parents accepted placement but rejected the absence of full day programming, a 1:1 aid, direct OT, behaviorist oversight, and ABA methodology.
During the school year, Student adjusted well and made progress. A Functional Behavioral Assessment was completed and identified brief low level self stimulatory behaviors primarily during unstructured times or language intensive activities. The behaviors were easily redirected and did not interfere in the classroom or with peer relationships. Subsequently, a private evaluation was conducted and Student was diagnosed with ASD and a full day and full year ABA program was recommended. The District did not agree with the recommendation and felt Student made progress in the half day program. Shrewsbury continued proposing a half day program in the integrated preschool, continued speech, social skills services, BCBA involvement, extended school year (ESY), a home assessment, and an optional regular education afternoon preschool. Parents declined ESY and the home assessment, and challenged the adequacy of the IEP. Student began the five morning preschool and made progress. Parents subsequently had Student observed in his class. The observer noted Student participated, made observable progress, and displayed minimal self stimulatory behavior. The observer recommended full day ABA programming based on what he viewed as best practice for students with ASD.
The Hearing Officer concluded that Shrewsbury’s half day integrated program provided a free appropriate public education (FAPE). The Hearing Officer further concluded that the evidence showed that Student had made significant progress and there was no evidence that he failed to make progress commensurate with his abilities. Although private recommendations were for more intensive programming, the Hearing Officer found that the general research was not connected to the Student’s individual needs and did not demonstrate that Student needed a full day program. The Hearing Officer also found that Student was achieving or progressing toward his IEP goals and had acquired the skills necessary to be placed in mainstream kindergarten the following year. Although parents reported continued self stimulatory behaviors at home, they repeatedly declined a district home assessment and did not meet their burden of proof.
Hearing Officer: William Crane
Decision Date: December 18, 2013
The issue was whether Student should remain eligible for special education services.
The student was 12 years old and in 6th grade. The Student was diagnosed with Apraxia of Speech, Developmental Dyslexia, Disorder of Written Expression, and an Auditory Processing Disorder. Student previously attended Landmark before returning in-district where he received inclusion support and daily pull out services. Student underwent 3 year reevaluation and results showed generally average academic performance and the ability to access general education curriculum. Triton concluded that Student no longer met eligibility requirements. Parents obtained their own private evaluation which concluded that Student continued to have significant underlying language and reading deficits and continued to require specialized instruction.
Regarding the issue of eligibility, Triton conceded that the first prong of eligibility standards was met. The issue was whether Student required specialized instruction. The District presented substantial information that Student was successful in school. He performed at or near grade level and had passing MCAS scores. While Student still had weaknesses in several areas, District evaluators concluded these could be addressed through regular education. Parent’s experts focused on the Student’s underlying profile rather than classroom success, and testified that Student’s compensatory strategies allowed him to appear successful while masking deficits. They additionally testified that he required specialized instruction and these needs would become more significant as academic demands increased.
The Hearing Officer gave credibility to Parent’s experts and concluded that Student’s language deficits were subtle in the classroom but had a greater impact on his learning. Student’s classroom participation and MCAS scores did not adequately measure his deficits. The Hearing Officer considered the foundational skills student required to develop to preserve his educational potential rather than basing eligibility on his possible future needs. The Hearing Officer concluded Student continued to have learning disabilities and specialized instruction was required to remediate his deficits.
Hearing Officer: Rosa I. Figueroa
Decision Date: December 17, 2013
The issue was whether the District was obligated to pay the remaining balance for Brattleboro Retreat, a private psychiatric and addiction hospital in Vermont, for educational services provided to Student through the Meadows Educational Center.
The Student was a 14 year old 8th grader who had been in general education and performing well with no identified special education needs. Student had an emotional breakdown at school and was subsequently hospitalized at Brattleboro Retreat in both the inpatient and residential programs. While there, she received educational services through Meadows Educational Center. Parents and District entered into a contract whereby Brattleboro would pay services and the remaining balance would be paid by parents. The District paid approximately $5,775 to Brattleboro. Parents initially limited releases to financial information and subsequently allowed releases of the Students psychological, educational, emotional, and behavioral information. The Team met and determined Student was eligible for special education due to an emotional impairment. They developed an IEP that proposed placement at New Directions School which parents accepted. Brattleboro later sent parents a bill for the remaining balance of $3,025 which parents asked the District to pay for.
The Hearing Officer determined that the issue turned on whether Student was a special education student during the period where the unpaid charges accrued. Prior to the emotional breakdown, there was no indication the Student had an emotional impairment. The Hearing Officer concluded that the District’s initial obligation was to provide home-hospital education services to a general education student and therefore BSEA lacked jurisdiction. Parents had not authorized releases of substantial information, therefore District did not have sufficient information to trigger their obligation for a special education referral. Once the District received information from Brattleboro they relied on it to complete the eligibility process. The Hearing Officer found that parents had not met their burden of proving District knew or should have known or Student’s special education eligibility before the Team meeting and therefore Parents were not entitled to reimbursement of the remaining balance.
Hearing Officer: Raymond Oliver
Decision Date: December 19, 2013
The issues were whether Student required a 45 day extended evaluation, whether that should occur in district or an outside placement, and whether the Hearing Officer should grant substitute consent because parents had refused consent for an outside extended evaluation.
Student was 16 years old and diagnosed with Asperger’s Syndrome, recurrent Major Depressive Disorder, ADHD, continued difficulties with school learning and behavior, problems in peer relationships, and parent-child difficulties. Student attended a substantially separate therapeutic program at the BiCounty Collaborative (BICO) program through 8th grade before transitioning to the ACE program at King Philip Regional High School (District) for 9th grade. During his second semester, Student began experiencing significant emotional and social difficulties. His private therapist expressed concern about possible psychosis or a thought disorder. He was subsequently placed in a PHP, however, parents limited communication between District and outside providers. They additionally rejected the District’s proposal for an extended evaluation at BICO.
Student returned to King Philip, however concerns continued. Parents requested updated evaluations but declined consent for referral information to be sent to proposed outside programs. There was a subsequent physical incident between Student and a teacher resulting in removal of Student from teacher’s class and a 1:1 aide. After a private psychological evaluation a structured therapeutic school program was recommended. The Hearing Officer concluded the District met its burden of proving that Student required an extended evaluation and that the evaluation should occur in an out of district placement and conducting the evaluation in-district would be unproductive and inappropriate. The Hearing Officer ordered a 45 day extended evaluation and granted substitute consent for the District to send referral packets.