And
Grayslake Community Consolidated School District 46
The Hearing Officer received his notice of appointment on Tuesday March
5, 02. The parties waived their right to ten days written notice of a pre-hearing
conference, and, accordingly, a pre-hearing conference took place on Wednesday
March 20, 02, by way of a telephone conference call initiated by the Hearing
Officer. By agreement of the parties, hearing dates were set for Monday
April 22, 02, Wednesday April 24, 02, and Friday, April 26, 02. On April
16, 02, the Hearing Officer received a communication from Counsel for the
Parents indicating that on April 15, 02 the Parents had informed the School
District of its intent to place the Student unilaterally at Heartspring
School, and thus, wished to have the issue of appropriate placement for
the Student considered at the Due Process Hearing. The following day, on
April 17, 02 the Hearing Officer received a communication from Counsel
for the School District requesting that the Hearing be postponed until
May 13, 02, May 14, 02, and any other additional dates needed in order
to allow the Student's IEP team to meet for the purpose of considering
the Student's placement. At a telephone conference call initiated by the
Hearing Officer on Friday April 19, 02, Counsel for the Parents agreed
to the above-mentioned request for postponement of Counsel for the School
District. The Hearing commenced as scheduled on May 13, 02.
Reimbursement for the cost of tuition for the Student at Heartspring
School; An order issued by the Hearing Officer that the Student should
stay at Heartspring for at least three years unless the staff at Heartspring
and the Parents determine that placement at Heartspring is no longer appropriate
for him; Eighteen (18) additional months of eligibility for special education
and related services beyond the Student's graduation or twenty first (21st)
birthday; At least eighteen (18) airplane tickets between Chicago and Wichita,
Kansas where Heartspring School is located; Monetary reimbursement for
the costs associated with expert testimony at the Due Process Hearing,
OT services for all applicable periods covered by the Hearing, all costs
not yet reimbursed associated with the Student's hospitalization at Children's
Memorial Hospital during the period from May 14, 01 through June 4, 01,
costs associated with travel and accommodations for reviewing prospective
placements at Heartspring and Higashi Schools, and costs associated with
securing the visit of a behavioral consultant to observe the Student at
Keshet Therapeutic Day School in May of 2001; An order issued by the Hearing
Officer directing the School District to contract with a Heartspring behavioral
consultant to travel between Heartspring School and the Student's home
to train and coordinate the behavioral management program at school and
at home.
The School District requests the Hearing Officer to find that the placement it has proposed for the Student at Aurora Educational Center and Little City Foundation is appropriate for him; The School District request the Hearing Officer to find that, through its agent Keshet Therapeutic Day School, the School District provided a free appropriate public education for the Student during the period from March of 2000 through August of 2001; The School District requests the Hearing Officer to issue an order denying all of the above-mentioned requests for relief of the Parents.
Insofar as the Hearing officer can determine, neither party in this matter disputes any of the statements contained in the following Factual Summary.
D.W. (hereinafter, the Student) is a ten year old autistic child. >From 1997 until March of 2000 he attended Meadowville School in Grayslake Community Consolidated School District 46 (hereinafter, the School District). In March of 2000, by agreement of the Student's Parents, Mr. Mathew and Ms PaulaW. (hereinafter, the Parents), and the School District, the Student was placed in an out of district day school program at the Keshet Therapeutic Day School.
Despite inconsistencies in the Student's behavior during his first few months at Keshet (from March of 2000 through June of 2000) both Keshet Staff and the Parents considered the Student to have gotten off to a good start. Upon his return to the day school program at Keshet for the 2000-2001 school year, however, by October of 2000, the Student's behavior had begun to interfere significantly with efforts to help him accomplish the goals and objectives of his IEP. In January of 2001, and continuing, more or less, throughout the rest of the school year, the Student's behavioral problems became even more severe.
On June 20, 01 the Director of Keshet notified the School District that Keshet had decided not to allow the Student to re-enroll for the coming school year (2001-2002). In a letter providing thirty days notice of this decision to the School District the Director of Keshet stated the following:
ÖÖ.. This is our 30-day notice that we are unable to meet the educational needs of [the Student], a boy for whom we care deeply and we surrender with great sadness. During [the Student's] time in Keshet there were periods when he really adjusted and performed well. However, for most of this past school year, we saw marked deterioration as he became increasingly
less able to stabilize and focus on any type of learning. During the last months of school, the few moments of calm and focus we had seen during the early spring were no longer in evidence and we began to fear for [the Student's] and the staff's safety. Additionally, his totally un- controlled behavior constituted a constant disruption to other students, many of whom were younger than eight years of age. Despite our assigning two staff members to working with [the Student], guided by an expert in educating children with Autism, we saw continued deterioration.
Subsequently, [the Parents] hospitalized [the Student] (day) for a period of approximately three weeks. All medication was discontinued and a new regimen created. [The Student's] behavior in the hospital setting was described similarly to what we had observed in Keshet. Nonetheless, we agreed to return [the Student] to Keshet, beginning in the extended school year program on a partial day. [The Student] began yesterday and his behavior was so uncontrolled and dangerous that the camp director had to assign five staff to keep him safe. The program is out of doors and [the Student] was at risk for a pool or street accident. The camp director has terminated his enrollment due to the safety risk and program disruption he presents. ÖÖ (S.D. Docs. Vol. 1 at tab P)
In September of 2001, the Student was placed at Kirk School, another out of district private day school program. In February of 2002, however, Kirk School concluded it no longer could address the Student's behavioral problems, which Kirk's Principal described at the Due Process Hearing in this matter as among the most intense he had seen in his twenty two years at the school. On February 28, 02 a meeting took place at which Kirk School agreed to allow the Student to remain at the school for another month. The Parents agreed with the School District that a residential placement for the Student needed to be investigated, and plans were discussed for the Parents to visit two possibilities for placement of the Student, the Higashi School in Boston, Massachusetts and the Heartspring School in Wichita, Kansas. The Parents withdrew the Student from Kirk School on March 20, 02. He was at Home from that date up to the end of April, 2001. During this period his behavior problems intensified even more drastically, reaching a point at which the Student's Mother feared for the safety of the student, as well as for her other children and herself.
On April 15, 02 the Parents notified the School District of their intention to place the Student at Heartspring School, and to seek reimbursement for tuition costs from the School District. An IEP meeting took place on April 24, 02, with the Parents in attendance, to discuss a School District placement recommendation for the Student. The meeting, however, did not result in a recommendation. On April 30, 02 the Parents unilaterally placed the Student in the program at Heartspring School (where he is placed at this time). On May 10, 02 another IEP meeting took place, without the Parents in attendance, to develop a School District placement recommendation for the Student. Three days later, on May 13, 02, the School District proposed a placement for the Student calling for him to attend school at the Aurora Educational Center in Aurora, Illinois, and to reside at a residential facility in Palatine, Illinois, operated by the Little City Foundation (hereinafter the AEC/Little City Placement).
As noted in the letter referenced above of the Director of Keshet Therapeutic Day School to the School District, for about three weeks (from May 14, 01 to June 4, 01) the Student was hospitalized on a day-patient basis at Children's Memorial Hospital. The purpose of the hospitalization was to attempt developing a medical regimen that would help to regulate the Student's behavior. The Parents subsequently requested that the School District cover their unreimbursed expenses, which primarily related to provision of educational services during the Student's hospitalization. The Parents requested also that the School District reimburse them for two other expenses. The first of these concerned occupational therapy services the Parents had arranged to be provided the Student once a week for eight weeks during the summer of 2001. The second request for reimbursement related to a bill the Parents received from a behavioral consultant who the Parents arranged to observe the Student in his classroom at Keshet in May of 2001.
On November 21, 01 the School District's Director of Special Education
communicated to the Parents denying all of their requests. In regard to
the request for payment to Children's Memorial Hospital, the School District's
Director of Special Education maintained that the Student's hospitalization
"was solely a parental decision," and that "[a]dditionally, Children's
Memorial Hospital [has reported] that [the Student] did not participate
in any educational services during his hospitalization from 5/14/01 to
6/4/01." Relative to the Parent's request for reimbursement of their expenditures
for occupational therapy services during the summer of 2001, the Special
Education Director stated that "[a]t no time was there any discussion or
agreement regarding private occupational therapy services" for the Student
during the summer of 2001. As for the bill the Parent's received from the
behavioral consultant who observed the Student at Keshet in May of 2001,
the School District's Special Education Director stated that there had
not been any communication, either written or oral, between the School
District and the behavioral consultant. Accordingly, said the School District's
Special Education Director, the School District was not responsible for
payment of her bill.
The Student's program at Heartspring runs continuously twenty four hours a day, seven days a week for forty eight weeks of the year. Heartspring staff members have extensive experience in, and strong qualifications for, educating autistic children with the kinds of extreme behavioral difficulties the Student exhibits. In this connection, the Heartspring staff includes three licensed Ph.D. psychologists and three behavioral specialists to develop and implement behavior management plans for students. These staff members have begun, and will continue, to collect and analyze data on the Student to make possible a comprehensive educational approach for addressing his behavioral problems.
The Student will have a one on one aide present with him throughout the part of the day devoted to academic activities, which ends at 3:00 PM. After that time, the location of the Student's activities shifts to the residential space at Heartspring. In the residential space the Student will also have a one on one aide with him up to 11:00 PM, after which a reduced staff works through the night. During the night, however, floating staff members are present to deal with emergencies. Furthermore, data collection proceeds during this time concerning sleep patterns of students and other matters. The Student will sleep in his own room, designed and constructed specially to assure his safety. For example, all cabinets, and other furniture with drawers are built into the walls, and the Student's bed is the only moveable item in the room.
The Student's educational program utilizes an integrated team approach, in a class with only five to six students. Such an integrated educational approach, say the Parents, is essential, given his extremely disregulated behavior at this time, as well as the significant regression he has undergone over the past several years. A team of specialists focuses attention upon the Student's class to facilitate integrated teaching in natural environments. In addition, the Student receives occupational therapy services as called for in his IEP.
In marked contrast to the Student's program at Heartspring, the placement that the School District has proposed for the Student at Aurora Educational Center and Little City Foundation (AEC/Little City) is patently inappropriate for him, say the Parents. The Parents stress, in this regard, that the School District's proposal calls for the Student to attend school in Aurora, Illinois but to reside in Palatine, Illinois, which will require at least an hour of traveling by automobile every day. This lengthy commute, the Parents contend, would introduce an immensely disorienting and disruptive element into the Student's daily routine. The Student finds it extremely difficult to make transitions, and, at this time, say the Parents, he needs an even longer recovery period in transition situations than he did in any of his previous educational placements. The Parents note as well that the descriptive material about the Aurora Educational Center available on the Internet has a principal focus upon children with vastly different needs than those of the Student. Specifically, the information concerns primarily programs for children with learning disabilities and emotional/behavioral disorder conditions.
Aside from these deficiencies, say the Parents, the entire issue of the appropriateness on the merits of the School District's AEC/Little City proposal is beside the point because Little City currently has no room for the Student. In this regard, the Parents call attention to the testimony at the Due Process Hearing presented by the Placement Specialist of Children's Services at Little City. According to the testimony of the Little City Placement Specialist, note the Parents, Little City has no space available for the Student at this time, and, in all likelihood, none will became available for at least another six to eight months.
Apart from the extreme tardiness, from the Parents' perspective, of Keshet's efforts in connection with conducting a functional behavior analysis and behavior management plan for the Student, those efforts, say the Parents, were wholly inadequate. The Parents point, in this regard, to the testimony of the consulting psychologist who the Parents called as a witness at the Due Process Hearing. The Parent's Consulting Psychologist expressed the opinion that the Functional Behavior Analysis Summary Form prepared by Keshet staff failed to address the full range of behaviors the Student exhibits. In addition, she opined that it lumped together behaviors of concern in an undifferentiated way, with no attempt to analyze each one individually in an effort to understand its possible significance in functional terms relative to the Student. The Parent's Consulting Psychologist characterized the Behavior Management Plan Summary Form prepared by Keshet staff for the Student as similarly incomplete, undifferentiated, and perfunctory. In regard to both the Functional Behavior Analysis and Behavior Management Plan Summary Forms the Student's Mother noted, in her testimony at the Due Process Hearing, that she was not consulted in the preparation of either of them, and, indeed, was unaware of their existence until May of 2001, more than two months after they were prepared.
In addition, the Parents called as a witness a consulting occupational therapist, who expressed the opinion that, in the case of the Student, an occupational therapist should have been (but was not) involved as a key participant in producing both a functional behavior analysis and behavior management plan for the Student. In this regard, the Parent's Consulting Occupational Therapist stated that, in her opinion, the Student has a severely limited capacity to integrate input that he receives from his senses. Accordingly, she opined that many of the Student's behavior problems reflect frustration, anxiety, and disorientation from sensory overload. The Parent's Consulting Occupational Therapist expressed the opinion that the Student's Keshet IEPs should have included (but did not) a sensory diet plan as a critical component, which would have helped the Student achieve and maintain a level of sensory awareness neither beyond his integrative capacities nor too impoverished to sustain a state of sensory alertness. Such a plan, she contended, also should have loomed large (but did not) both in analyzing the Student's problem behaviors and developing a management plan for them.
On another matter, the Parent's Consulting Psychologist pointed out deficiencies, from her perspective, in the IEPs developed at Keshet in connection with the Student's program. She noted, in this regard, that, apart from not including a behavior management plan, the Student's Keshet IEP for the period from June of 2000 through June of 2001 did not indicate the names of the people who prepared it. Furthermore, she testified that, in her opinion, the Student's present levels of performance relative to important goals were not fully specified, and critical areas of developmental need for the student were not addressed.
The Parents contend that the School District had significant responsibilities of oversight in regard to the Student's placement at Keshet Therapeutic Day School which it failed to meet. In this regard, the Parents call attention to notes taken at a meeting attended by the School District's Director of Special Education on August 8, 2000. The meeting notes indicate, the Parents point out, that the participants agreed a functional behavior analysis would be conducted, and a behavior management plan developed to address the Student's aggressive behaviors. The Parents note as well that at least by November 13, 00 the School District's Director of Special Education had been informed of significant deterioration in the Student's behavior. The Parents call attention, in this regard, to the School District's Director of Special Education's notes of a telephone conversation that took place between herself and Keshet staff on that date (November 13, 00). According to her notes, the Parents point out, the School District's Director of Special Education received word of extreme aggression by the Student, which led her to authorize Keshet to retain for additional hours the autism consultant with whom Keshet had contracted to help in educating the Student.
Despite this clear indication of alarming escalation of the Student's behavior problems, note the Parents, the School District's Director of Special Education did not press Keshet staff to convene an IEP meeting to consider how to address the situation. In this regard, the Parents contend that an IEP meeting did not take place until February 23, 2001. Nor, say the Parents, did the School District's Director of Special Education inquire as to what steps, if any, Keshet had taken in connection with conducting the functional behavior analysis or developing the behavior management plan discussed on August 8, 2000.
The Parents thus contend that although the School District had a strong responsibility to oversee the Student's educational program at Keshet Therapeutic Day School, it failed grievously to do so.
Reimbursement for the cost of tuition for the Student at Heartspring School; An order issued by the Hearing Officer that the student should stay at Heartspring for at least three years unless the staff at Heartspring and the Parents determine that placement at Heartspring is no longer appropriate for him; Eighteen (18) additional months of eligibility for special education and related services beyond the Student's graduation or twenty first (21st) birthday; At least eighteen (18) airplane tickets between Chicago and Wichita, Kansas, where Heartspring School is located; Monetary reimbursement for the costs associated with expert testimony at the Due Process Hearing, OT services for all applicable periods covered by the Hearing, all costs not yet reimbursed associated with the Student's hospitalization at Children's Memorial Hospital during the period from May 14, 01 through June 4, 01, costs associated with travel and accommodations for reviewing prospective placements at Heartspring and Higashi Schools, and costs associated with securing the visit of a behavioral consultant to observe the Student at Keshet in May of 2001. An order issued by the Hearing Officer directing the School District to contract with a Heartspring behavioral consultant to travel between Heartspring School and the Student's home to train and coordinate the behavioral management program at school and at home.
In regard to their unreimbursed costs for the Student's hospitalization at Children's Memorial Hospital, the Parents point to the following testimony at the Due Process Hearing of the Student's Father. The Parents were informed in April of 2001 by the Director of Keshet, said the Student's Father, that unless the Parents agreed to have the Student hospitalized at Children's Memorial Hospital the Student would not be allowed to continue in his placement at Keshet. The purpose of the hospitalization she said, according to the testimony of the Student's Father, would be to attempt establishing a medical approach that could help to stabilize the Student's behavior. The Student's Father testified also that the Student received educational services during his period of hospitalization at Children's Memorial Hospital. In this regard, the Student's Father said that Keshet teachers met with the instructors at Children's Memorial to provide them educational materials for use with the Student. The Parents also placed in evidence a letter from the Student's Mother to the School District's Director of Special Education dated December 17, 2001 stating that on May 15, 01 a meeting took place attended by the Student's Mother, the School District's Director of Special Education, and Keshet administrators at which the topic of the Student's hospitalization at Children's Memorial was discussed in detail (Parent's Documents, Tab 46). In this letter the Student's Mother contended that at no time during the meeting did the School District's Director of Special Education state that the District would not assume responsibility for the costs of hospitalization relating to educational services provided to the Student while at Children's Memorial. The Student's Mother also referred in the letter to a meeting that took place on May 21, 01 at which Keshet and Children's Memorial Staff met to discuss educational services for the Student. The Student's Mother said in the letter that School District representatives were invited to this meeting but did not attend.
In regard to reimbursement for expenditures in regard to OT services
during the summer of 2001, the Parents note that they are called for in
the Student's February 23, 01 IEP Conference Summary Report. Furthermore,
the Student's Mother testified at the Due Process Hearing, that she called
the School District's Director of Special Education repeatedly about arranging
occupational therapy services for the Student over the summer in 2001,
but her calls were not returned. In connection with the visit to Keshet
of a behavioral consultant, which the Parents arranged to take place in
May of 2001, the Student's Mother testified at the Due Process Hearing
that the Student's classroom teacher expressed a strong wish for the visit
to occur. In this regard, the Parents point to a note from the Student's
classroom teacher to the Parents, dated March 1, 01, in which she says
that she would "love to meet" with the behavioral consultant (Parent's
Addendum to Documentary Evidence).
The School District "takes no issue" with the appropriateness of Heartspring School as a placement for the Student (S.D. Closing Brief, p. 25). For that reason, however, the School District insists, "the next step is to consider LRE analysis" (S.D. Closing Brief, p. 25). That is to say, contends the School District, since both the School District's AEC/Little City proposal and Heartspring School are appropriate placements, the critical issue in choosing between them concerns which placement environment would be less restrictive for the Student. In this regard, the School District maintains the superiority of the AEC/Little City proposal for the reason that it would be much closer to the Student's home than Heartspring School, located in Wichita, Kansas. The School District recognizes that the AEC/Little City placement proposal calls for transporting the Student between Aurora, Illinois and Palatine, Illinois on a daily basis, which requires an hour-long automobile ride. The School District contends, however, that the Parent's expert witnesses failed to establish through their testimony that the ride would have an irreparably disruptive effect upon the Student that would preclude him from making educational progress in terms of his IEP goals and objectives.
The School District acknowledges that the Student made little, if any, educational progress from October of 2000 through the remainder of the 2000-2001 school year, owing to behavioral problems. The School District contends, however, that the staff of Keshet Therapeutic Day School worked intensively during this period to develop and implement approaches to address the Student's behavioral problems. In this connection, the School District points to the following testimony presented at the Due Process Hearing of the Autism Consultant Keshet retained to work with the Student's classroom teacher and one on one aide:
The School District avers, in this regard that "the overwhelming evidence demonstrates that the District, by and through its agent Keshet, provided [the Student] with an appropriate FBA and behavior intervention programming embedded within the methodology testified to as being the most effective with autistic children, TEACHH" (S.D. Closing Brief, p. 10). Accordingly, says the School District, the Hearing Officer should follow the advice of the court in Beth B v. Van Clay to "leave the selection of educational policy and methods where they have traditionally resided -- with State and local school officials. 282 F.3d 493,498 (7th Cir, 2002) citing Daniel RR v. Board of Education 847 F2d 1036 (5th Cir, 1989. The School District also urges the Hearing Officer to follow the holding of the court in Edwin K. v. Jackson et.al 2002 WL1433722 (N.D. Ill., 2002). In this case, says the School District, the decision of a due process hearing officer was upheld finding that the School District met its obligations relative to addressing the Student's behavioral problems by attempting carefully thought out and timely interventions, even though based upon information gathered informally, and even though the interventions ultimately did not succeed.
As for the allegations of the Parents in regard to diverse procedural flaws in the Student's IEP of June, 2000-June, 2001, the School District concedes most of the flaws noted by the Parents, but characterizes them as amounting to "nothing more than harmless error when weighed against the exhaustive effort the District through its agents at Keshet made to understand and meet [the Student's] educational needs" (S.D. Closing Brief, p. 14). "At no time," says the School District, "did [the Parents] establish that the parties involved in [the Student's] day to day education, including his mother, failed to understand what they were trying to achieve in [the Student's] educational plan via his existing IEP, procedurally flawed as it is, and extensive behavior management efforts." "Neither", says the School District, "is there any indication that any relevant party was frozen out of providing input into the design of [the Student's] educational program" (S.D. Closing Brief, p. 14).
The School District rejects emphatically the Parent's charge that the School District failed to provide appropriate supervisory oversight in regard to the Student's placement at Keshet. In this regard, the School District protests that the Parents have sought to "malign the School District's Special Education Director and her level of supervision in this case" (S.D. Closing Brief, p, 17). To the contrary, the School District avers that the testimony of Keshet administrators and staff at the Due Process Hearing establishes the School District's Special Education Director's availability, cooperativeness, and participation in the Student's educational programming.
As evidence in this regard, the School District notes the following actions of the School District's Director of Special Education: authorization of the use of a harness to better ensure the student's safety in transportation; agreement to support the hiring of an additional aide to work with the Student; approval of the Student's participation in a winter break recreational program at the request of the Student's mother; agreement to fund the Parent's requested participation of the Student in the Parent's preferred summer recreational program in place of the ESY programming proposed in the Student's IEP. The School District notes as well, in this regard, that the School District's Director of Special Education directed Keshet staff to develop an updated IEP in the fall of 2000, when it became clear that the Student had not met his goals.
The School District objects to the Parents' request for eighteen tickets for family visits to Heartspring as completely unjustified in terms of either the factual record in this case or relevant legal standards. The School District contends that the Parents themselves view the request as nothing more than "symbolic" (S.D. Closing Brief, p. 4). Similarly, the School District considers "largely symbolic" the Parents' request that the Hearing Officer order the School District to provide eighteen additional months of special education services as compensatory education for the Student beyond his twenty first birthday (S.D. Closing Brief, p. 4).
The School District regards as wholly unwarranted the Parents' request that the Hearing Officer direct the School District to pay for a behavioral consultant from Heartspring to assist in coordinating implementation of the Student's behavior management program at school and at home. In this regard, the School District characterizes the request as "indicative of the Parents' continual quest for more from the District absent considerations of appropriateness" (S.D. Closing Brief p, 5). Likewise, the School District calls upon the Hearing Officer to refuse to grant the Parents' request for reimbursement in regard to the fees of their expert witnesses, who the School District points out, "became acquainted or reinvolved with [the Student] only after the due process was held ÖÖ and have not had ongoing therapeutic contact with him" (S.D. Closing Brief, p. 5).
As for the Parents' reimbursement request in connection with the Student's hospitalization at Children's Memorial Hospital from May 14, 01 through June 4, 01, the School District maintains that the hospitalization resulted from a wholly unilateral decision by the Parents. Furthermore, contends the School District, in light of the information she received from Children's Memorial, the Special Education Director had reasonable grounds to conclude that the Student received either no, or only minor, educational services while he was hospitalized. Even if the Hearing Officer should find the School District liable for the Student's educational services during the Children's Memorial hospitalization, argues the School District, he should base reimbursement on the District's policy regarding home/hospital services. Under this policy, the School District notes, it would be liable for only three days of educational programming (S.D. Closing Brief, p. 18).
In regard to the Parents' requests for reimbursement of fees for occupational therapy services provided to the Student, the School District contends that its Director of Special Education had reasonable grounds for denying them relative to the summer of 2001. For that period, the School District points out, the Director of Special Education approved the Student's placement in the Warren Special Recreational Program as a substitute for the Keshet summer program. The District's Special Education Director concluded reasonably, argues the School District, that the Warren Special Recreational Program was intended to replace all of the Student's extended school year programming that the Keshet summer program was to have provided, which included occupational therapy services. The School District contends also that the Hearing Officer should not grant the Parents' request for reimbursement in connection with the visit of a behavioral consultant to Keshet in May of 2001. In this regard, the School District notes that it did not authorize the visit, and that the visit provided no useful new information to Keshet staff.
The School District contends that the Parents have engaged repeatedly in uncooperative behavior that has interfered significantly with the School District's efforts to develop and implement appropriate educational programming for the Student. The School District contends that the Parents failed to communicate consistently with Keshet staff concerning diverse matters related to the Student's medication, such as the types and dosage of medications, and whether problems arose in specific circumstance relative to administering medications to the Student. As another example of the Parents' uncooperativeness, the School District points out that in March of 2002 the Student's Mother did not send to Little City an updated physical examination report on the Student she had obtained recently from the Student's pediatrician. The School District points out, in this regard, that Little City required any child considered for admission to make an overnight visit, and, as a prerequisite for the visit, Little City required receipt of a physician's physical examination report for the child. By not sending to Little City the physician's physical examination report for the Student, which she had just obtained, alleges the School District, the Student's Mother thereby "sabotaged the District's ultimate placement recommendation" (S.D Closing Brief, p. 22). In this regard, the School District states that Little City "indicated it most likely would have accepted [the Student] had [the Parents] cooperated with the placement process" (S.D. Closing Brief, p. 25).
The School District protests that the Parents indulged in "gamesmanship"
during the period of March through April of 2002, rather than cooperating
with the School District to identify mutually agreeable dates and times
for critical IEP meetings (S.D. Closing Brief, p. 23). "This lack of cooperation,"
the School District contends, "no more should be rewarded in a due process
proceeding than attorney's fees should be rewarded for lack of cooperation,
even if plaintiffs can claim prevailing party status" (S.D. Closing Brief,
p. 23).
The Heartspring Admissions Director stated that the Student has a one on one aide present with him throughout the day up to 11:00 PM. The Student is taught in a classroom with only four or five other Students by teachers who utilize an integrated team approach, he receives the OT services called for in his IEP, and he sleeps in his own room, which is designed and constructed carefully to assure his safety, said the Heartspring Admissions Director.
As for the AEC/Little City placement proposed for the Student by the School District, during the course of the Due Process Hearing, the Parents introduced into evidence a letter from the Children's Placement Specialist at Little City, addressed to the Student's Mother, and dated May 20, 02 (Parents' Ex. 59). The letter indicated that, as of the letter's date, Little City had no space available for the Student. Subsequently, the Little City Placement Specialist testified at the Due Process Hearing that during the 2001-2002 school year she conveyed the following two items of information both to the Student's Mother and the School Psychologist for the Special Education Cooperative to which the School District belongs. First, Little City required, as part of its admission process that candidates for placement make an overnight visit. Second, Little City required also, a physician's report on a recent physical examination of the candidate. The Little City Placement Specialist testified as well that the Student was never considered for admission because Little City did not receive a physician's physical examination report on him. She testified, in addition, that on May 10, 02 she informed the IEP team that had convened to discuss a placement for the Student that Little City had no space available for him at that time.
The Hearing Officer notes that the testimony of the Little City Placement Specialist, summarized immediately above, indicated clearly that Little City was not an available placement for the Student on May 10, 02 and May 13, 02, the dates of the IEP meeting when the School District arrived at its decision to recommend the AEC/Little City placement for the Student. At the Due Process Hearing the School District's Special Education Director testified that, as of May 13, 02, she believed that the AEC/Little City placement was a viable option. Despite this belief of the School District's Director of Special Education, the Hearing Officer concludes, in light of the testimony of the Little City Placement Specialist, that the School District's AEC/Little City placement proposal was inappropriate for the Student as of May 10, 02 and May 13, 02, the dates of the meetings at which the School District decided to recommend it.
Apart from the unavailability of a bed for the Student at Little City, the Hearing Officer has concluded, based upon his review of the evidence and testimony presented by the parties in this case, that the School District's proposed AEC/Little City placement is inappropriate for the Student. In this regard, the Hearing Officer notes that witnesses called to testify at the Due Process hearing converged upon the viewpoint summarized immediately below. Given the immensity of the Student's behavioral problems at this time, the Student not only needs a residential placement, but also one in which major components of this program, both residential and academic, are closely coordinated and highly integrated. The Hearing Officer notes, for example, the testimony of the Principal of Kirk School, which the Student attended after leaving Keshet Therapeutic Day School. The Kirk Principal described the Student's behavior problems as among the most extreme of any student he has seen in twenty two years of educating children with disabilities. The Kirk Principal expressed the opinion that the Student needs "twenty four-seven" constancy in his placement, and that coordination between the staff at the facility where the Student resides and the educators implementing his academic program often will have to occur directly in person, rather than by phone or email.
The need for especially close coordination between the residential and school staffs in a program for the Student, such as the one proposed by the School District at AEC and Little City, was underscored in the testimony of the Developmental Pediatrician called as a witness by the Parents, who has seen the Student as a patient for several years. The Developmental Pediatrician expressed the opinion in her testimony that extremely careful planning, and very close coordination by staff "at both ends" would be needed to offset the strongly disruptive impact that, in her judgment, a daily automobile trip, lasting nearly an hour, between Little City and AEC would have upon the Student. The Consulting Occupational Therapist and Consulting Psychologist, called as witnesses by the Parents, each stressed the need for a high degree of integration of educational and related services in an appropriate program for the Student, emphasizing, in this regard, the area of occupational therapy, given the Student's severe deficits relative to sensory integration. These deficits, the Parents' Occupational Therapist and Consulting Psychologist both noted, affect negatively the Student's ability to learn in vital areas, such as communication and social development. Such, in turn, they each said, increases his sense of frustration, which, they opined, contributes significantly to the Student's severe behavior problems. In the opinion of the Hearing Officer, the testimony summarized immediately above indicates that an appropriate residential program for the student requires, in the first instance, very close coordination between its educational and residential components, and, in the second instance, a highly integrated approach to the provision of educational and related services. Based upon his review of the testimony presented at the Due Process Hearing, the Hearing Officer has concluded that the AEC/Little City placement proposal for the Student by the School District lacks the above two characteristics.
In this regard, the Hearing Officer calls attention to the testimony of the Assistant Director of Curriculum and Instruction for the Menta Group, to which AEC belongs. The Assistant Curriculum and Instruction Director stated that, at this time only two AEC students reside at Little City. The need for inter-staff coordination, she said, is met through journal entries and phone calls. Staff meetings for one of the two children, the Assistant Director of Curriculum and Instruction said, took place every two weeks, and then were reduced as the child adjusted to the system. For the other child, she said, staff meetings were "somewhat more frequent." The Assistant Curriculum and Instruction Director stated in her testimony that if daily conferences were required between AEC and Little City staff in connection with the Student's program then AEC would "try" to do this. She testified also, however, that such daily conferencing has not been done thus far.
The Hearing Officer calls attention as well to the testimony of the Assistant Curriculum and Instruction Director concerning the manner in which AEC would provide occupational therapy services for the Student. In this regard, she stated that AEC would contract for the services of an occupational therapist. There is room on the grounds of AEC for the therapist to set up equipment and work with the Student, said the Assistant Director of Curriculum and Instruction. The therapist would have to bring her or his own equipment, and set it up, however, she said, because the room is not an OT gym which contains items such as hanging equipment and trampolines.
Based upon the testimony summarized above of the Assistant Director of Curriculum and Instruction, the Hearing Officer concludes that the AEC/Little City placement proposal does not provide for the very close coordination between educational and residential components, and the high degree of integration of educational and related services, required in an appropriate placement for the Student. The Hearing Officer acknowledges the affirmations of the Assistant Director of Curriculum and Instruction concerning AEC's intention to attempt implementing the Student's program in any way necessary to make it successful. Given the severity of the Student's problems, however, the Hearing Officer believes that the staff involved in an appropriate program for the Student must have extensive previous experience working together in the implementation of very closely coordinated and highly integrated programs. The testimony of the Assistant Director of Curriculum and Instruction indicated clearly to the Hearing Officer that the staff of Aurora Educational Center lacks such experience. The Hearing Officer concludes accordingly that the AEC/Little City placement proposed by the School District is inappropriate for the Student.
The Student's Program at Keshet Therapeutic Day School had significant deficiencies, to be specified in section II.B below, over the period from October of 2000 through June of 2001, in virtue of which the Student failed to receive an appropriate education during this period. The School District had a duty to become apprised of, and to address, the aforementioned deficiencies in the Student's program at Keshet, but failed to do so.
The Hearing Officer notes that the Parents did not contest the testimony of Keshet staff members in regard to the above matters at the Due Process Hearing. He notes also that the report of the Student's Speech and Language Therapist, dated June 6, 2000 clearly corroborates this testimony (S.D. Docs. V.1, tab J). As additional corroborating evidence, the Hearing Officer also calls attention to numerous Keshet Daily News notices sent to the Parents at the end the school day, and the Parent's follow-up communication to Keshet staff involved in the Student's program for the period March of 2000 through September of 2000 (Parents' Addendum to Documentary Evidence). Many of these communications, the Hearing Officer notes, whether sent by Keshet staff to the Parents, or vice versa, emphasize the Student's educational progress. The Hearing Officer thus is inclined to credit the testimony of Keshet staff at the Due Process Hearing in regard to their perceptions of the Student's educational advancement relative to behavior, and other important areas covered in his IEP throughout the period of March 2000 through September 2000.
Throughout the period of October 2000 - June 2001, Keshet Therapeutic Day School had a duty to focus urgent and intense attention upon the Student's behavioral problems. This duty included responsibilities to gather as much information, and seek out as much relevant expertise, as was feasible, in order to comprehend the Student's behavioral problems, and to develop an approach for addressing them. The School District had a duty of oversight to assure that Keshet Therapeutic Day School fulfilled its responsibilities included within the above-specified duty.
The case record indicates also that neither a functional behavior analysis (FBA) nor a behavior management program (BMP) was completed for the Student until February of 2001. Furthermore, the Summary Forms relative to both the FBA and BMP that appear in the case record, in the opinion of the Hearing Officer, are extremely brief and general. Neither of them, the Hearing Officer believes, provided the basis for adopting different educational approaches for dealing with the Student's behavior problems than those that had been utilized unsuccessfully since October of 2000. The FBA and BMP Summary Forms, notes the Hearing Officer, indicate that they were developed by a team consisting of the Student's classroom teacher, the Student's one on one aide, and an autism consultant retained by Keshet (hereinafter, the Autism Consultant). According to the Autism Consultant's testimony at the Due process Hearing she devoted ten to twelve hours a week to assisting in the development and implementation of the Student's program at Keshet from October of 2000 through June of 2001. The Autism Consultant testified that in developing the Student's FBA and BMP the team, consisting of herself, the Student's classroom teacher, and the Student's one on one aide collected data on the Student's behavior. They also, she said, reviewed information concerning the Student that she, and other Keshet staff, had asked the Parents to provide that might yield clues to events triggering the Student's problem behaviors (e.g. changes in medication, problems in the car on his way to school, etc.). The Autism Consultant testified that, in addition, the FBA and BMP reflected conclusions based upon numerous discussions, which took place immediately after episodes of problem behavior on the part of the Student. In these discussions, said the Autism Consultant, she brainstormed with the Student's classroom teacher and one on one aide concerning the behavior that had just occurred, and steps they could take to prevent, or control its reoccurrence.
The Hearing Officer has concluded that the efforts described above, on the part of the team consisting of the Autism Consultant, the Student's classroom teacher, and the Student's one one one aide, in developing an FBA and a BMP for the student did not suffice to develop a program "reasonably calculated," in the words of Rowley, to provide educational benefit for the Student. As noted above, the Hearing Officer believes that under the specific circumstances of this case, in which the Student's behavior precluded him from making any significant educational progress, Keshet staff had responsibilities to gather as much information, and seek out as much relevant expertise, as was feasible, to comprehend the Student's problem behaviors, and to develop an approach for addressing them. In regard to gathering information, although the Autism Consultant stated that, together with the Student's classroom teacher and the Student's one on one aide, she collected data, the Hearing Officer notes that she did not describe either the amount of data collected, or the methods through which the collection was done. Furthermore, observes the Hearing Officer, no data whatsoever, relative to the development of either the FBA or BMP appears in the case record.
As for information gathered from the Parents' responses to questions from Keshet staff concerning possible triggering events in connection with specific episodes of problem behavior on the part of the Student, the Hearing Officer notes the testimony of Keshet staff members at the Due Process Hearing that they found it difficult to fit this information into a pattern that could help them comprehend the Student's behaviors. The Hearing Officer notes as well, however, the absence of any indications in the case record, including the testimony of Keshet staff at the Due Process Hearing, that the staff ever met to analyze and review the information obtained from the Parents in a systematic way that could have provided a basis for follow-up informational requests to the parents.
The School District contends that during the period for October of 2000 through June of 2001, the Keshet team attempted numerous measures to address the Student's behavior problems, detailed in the testimony of the Autism Consultant at the Due Process Hearing (p 12 supra). The School District concludes thus that Keshet provided the Student with "an appropriate FBA and behavior intervention programming embedded within the methodology testified as being the most effective with autistic children, TEACHH" (S.D. Closing Brief, p. 10). The Hearing Officer acknowledges the testimony of Keshet Staff, including the Autism Consultant, concerning a wide array of measures introduced to stabilize the Student's behavior. Other than the Autism Consultant's statement that data was collected to develop the Student's FBA and BMP, however, the Hearing Officer cannot locate any testimony or evidence indicating that Keshet staff recorded and analyzed information in a systematic form. The Hearing Officer recognizes that neither statutory requirements nor appropriate educational practice necessitate that data collection be strictly quantitative or that it be couched in the language of a behaviorist methodology. In the opinion of the Hearing Officer, however, given the severity of the Student's behavior problems, and the unsuccessful results of the measures that the Keshet team attempted, the team needed to consider intensively what kinds of information might prove useful, and then to adopt an approach for systematically recording and analyzing such information. As noted above, however, other than the aforementioned statements of the Autism Consultant, the Hearing Officer finds no evidence or testimony in the case record to indicate this was done.
The School District cited the recent case of Edwin K. v Jackson et. al. 2002 WL 1433722 (N.D. Ill.) in support of its position that it "should be found in compliance with its obligations to [the Student] on all issues related to behavioral interventions" (S.D. Closing Brief, p. 11). The Hearing Officer, however, cannot agree with the School District's contention that close "factual similarities" obtain between the circumstances in Edwin K. v. Jackson et. al and those in this case. Both cases, the Hearing Officer acknowledges, involved circumstances in which school staff undertook extensive, yet unsuccessful interventions to address a student's behavior problems. The student in Edwin K, v. Jackson et. al., however, notes the Hearing Officer, attended a different school than the one the school district in the case had identified in its placement recommendation. (The parents in the case vehemently opposed the School District's recommendation. The school district agreed, accordingly, to the placement that the parents wanted in order to avoid conflict, and in the hopes that, somehow, it might be made to work out successfully). The student in Edwin K thus presented his problem behaviors in a placement the school district significantly doubted was appropriate for him. The hearing officer found, accordingly, and the court agreed, that "the major reason that progress toward [Edwin K's] IEP goals and objectives was stymied was because of [Edwin K's] behavior and the inappropriateness of the current educational placement." (underline added) In direct contrast to the circumstances of Edwin K. v. Jackson et. al., notes the hearing Officer, the School District maintains that Keshet Therapeutic Day School provided an appropriate educational program for the Student.
As noted above, the Hearing Officer believes that, in the specific circumstances of this case, Keshet had a responsibility not only to gather as much information, but also to seek out as much relevant expertise as was feasible, to develop an appropriate approach for dealing with the Student's behavioral problems. In regard to the latter responsibility, the Hearing Officer observes that, according to uncontested testimony at the Due Process Hearing, the Student's classroom teacher had only one year of experience in her position, and lacked certification in the field of special education. Furthermore, notes the Hearing Officer, although the Autism Consultant's testimony indicated that she has extensive experience, and solid qualifications as a teacher of autistic children, she stated also that she had no prior experience addressing the kinds of extreme behaviors the Student presented. In light of these circumstances, the Hearing Officer cannot understand why the team at Keshet that developed the Student's FBA and BMP did not include individuals with backgrounds and areas of expertise to augment and supplement those of the Autism Consultant and the Student's classroom teacher. In this regard, given the testimony Keshet staff presented at the Due Process Hearing concerning their thoughts that conditions and events outside of school could be triggering the Student's problem behaviors, the Hearing Officer finds it especially difficult to understand why the Parents were not directly involved in developing the FBA and BMP.
The Hearing Officer finds ample grounds, in light of the evidence and testimony presented in this case, to believe that the Student's problem behaviors during the period from October of 2000 through June of 2001 were a matter of continuing deep concern to the members of the Keshet staff, and that they made significant efforts to address them. The Hearing Officer believes also, however, as noted above, that, under the specific circumstances of this case, the duty of Keshet Therapeutic Day School to develop and implement an educational program "reasonably calculated" to benefit the Student entailed the following responsibilities. In the opinion of the Hearing Officer Keshet had responsibilities to gather as much information, and to seek out as much relevant expertise, as was feasible to comprehend the Student's problem behaviors and to develop an approach for addressing them. The Hearing Officer concludes, for the reasons set out above, that, despite the deep concern and significant efforts of Keshet staff members during the period from October of 2000 through June of 2001, Keshet Therapeutic Day School did not meet the above responsibilities, and, accordingly, failed to provide the Student an appropriate education.
Finally, in this regard, the Hearing Officer considers his reasoning with respect to the foregoing conclusion to be consistent with the view that courts and hearing officers "should leave the selection of educational policy and methods where they have traditionally resided -- with State and local school officials." Beth B v. Van Clay 282 F.3d 493,498 (7th Cir., 2002) citing Daniel RR v. Board of Education 847 F.2d 1036 (5th Cir., 1989). The Hearing Officer cannot agree, in this connection, that the evidence and testimony presented in this case supports the School District's assertion that the FBA and BMP developed by the Keshet team are "embedded within" the TEACHH methodology adopted by educators at Keshet Therapeutic Day School. The Hearing Officer acknowledges the testimony of the Autism Consultant that Keshet favors the TEACHH methodology for educating children with autism. Upon his review of the case record, however, the Hearing Officer cannot locate evidence or testimony that elucidates the precise relationship between the TEACHH methodology and the efforts of the Keshet team to deal with the extreme problems the Student presented during the period from October of 2000 through June of 2001. The Hearing Officer observes in this connection that the Autism Consultant characterized these efforts as being in a continual mode of crisis beginning in February of 2001, due to the severity of the Student's behavior problems.
Based upon his review of evidence and testimony presented in connection with this case, the Hearing officer concludes that the School District failed to meet either of the aforementioned responsibilities. In this regard, the Hearing Officer calls attention to the notes that the School District's Director of Special Education made in connection with a phone conversation she had with an administrator at Keshet on November 13, 2000, in which the Keshet administrator informed her of a particular episode of extreme problem behavior by the Student. (S.D. Docs. V.1, Tab R). In her notes, the Hearing Officer observes, the School District's Special Education Director stated, that the Student was "back to square one when he first came to Keshet." Given this conclusion, the Hearing Officer believes that it became incumbent upon the School District's Director of Special Education to monitor the Student's placement at Keshet closely. The Hearing Officer believes as well that, in light of the information she had received by November 13, 2000, the School District's Director of Special Education had responsibilities to insist that an IEP meeting soon take place, and to urge Keshet's staff to begin developing an organized plan for gathering more information and seeking out assistance of persons with expertise relative to the problem behaviors the Student presented.
The evidence and testimony presented in connection with this case, however, makes it clear, notes the Hearing Officer, that the School District's Special Education Director did not meet these responsibilities. As the case record indicates, an IEP meeting in regard to the Student did not take place until February 23, 01. Furthermore, Keshet staff neither conducted a functional behavior analysis nor developed a behavior management plan for the Student until February of 2001, and, for the reasons discussed in section II.B. above, the staff's efforts in this connection were inadequate. No evidence or testimony in the case record indicates that the School District's Director of Special Education ever raised these matters with administrators at Keshet. The Hearing Officer concludes accordingly that, owing to failures of oversight on its part in regard to the Student's program at Keshet Therapeutic Day School, the School District did not fulfill its responsibility to provide the Student a free appropriate public education
In this regard, the Hearing Officer cannot agree with the School District that the Parents engaged in uncooperative behavior of such a nature and extent that the Hearing Officer should weigh it heavily in deciding upon appropriate relief to grant the Parents. The School District noted, in this connection, that the Student's Mother did not send an updated physician's physical examination report on the Student to Little City after she obtained it in March of 2002. The Hearing Officer points out, however, that no testimony or evidence presented at the Due Process Hearing indicated that School District staff communicated with the Student's Mother to express a sense of urgency in regard to submitting the report in order to assure space for the Student at Little City. In connection with the School District's allegations of "gamesmanship" on the Parent's part relative to scheduling IEP meetings, the Hearing Office notes he based his conclusion that placement of the Student at AEC would be inappropriate primarily upon the way the AEC placement was described at the Due Process Hearing by the Assistant Director of Curriculum and Instruction for the Menta Group, to which AEC belongs. For this reason, the Hearing Officer concludes that the Parents' behavior in connection with efforts of the parties to schedule IEP meetings in March and April of 2002 has no bearing upon his (the Hearing Officer's) conclusions regarding the inappropriateness of the AEC program for the Student.
As noted above the Hearing Officer has concluded the Parents are entitled to reimbursement for their tuition expenses in connection with Heartspring School from April 30, 02 through the end of the 2002-2003 school year. The Hearing Officer has concluded also, however, that he may not grant the Parents' request to order that the Student stay at Heartspring School for at least three years unless the Heartspring staff and the Parents determine that the Heartspring placement is no longer appropriate for him. In this regard, the Hearing Officer acknowledges the Parents' reference in their Closing Brief to the broad discretion of courts and hearing officers to grant relief that the U.S. Supreme countenanced in the case of School Committee of the Town of Burlington, Mass. et. al. v. Dept. of Education of Mass. et. al. 471 U.S. 359, 369 (1985). The Hearing Officer, however, also calls attention to the unquestionable centrality of the IEP process to the procedural framework delineated in the IDEA for the development and implementation of educational programs for special needs students. The Hearing Officer cannot agree that in the specific circumstances of this case the broad discretion to grant relief countenanced by the Court in Burlington encompasses an order that the Student stay at Heartspring School for three years, without annual IEP review by the School District.
at least 18 additional plane tickets between Chicago and Wichita, Kansas; monetary reimbursement for costs associated with testimony of expert witnesses at the Due process Hearing; costs associated with travel and accommodations for reviewing Heartspring and Higashi School; order directed at the School District to contract with a Heartspring behavioral consultant to travel between school and home for the purpose of training and coordinating the behavioral management program at school and at home; reimbursement for expenses in connection with visit of behavioral consultant to Keshet Therapeutic Day School in May of 2001.
After due consideration, the Hearing Officer has concluded that the
Parents did not present sufficient argument to persuade him of a critical
relationship between the above mentioned requests for relief and the considerations
the Parents advanced in connection with the Due Process Hearing to establish
that the School District failed to provide the Student a free appropriate
public education.
This Decision and Orders rendered this 1st day of August, 2001
________________ Robert F. Ladenson Impartial Hearing Officer