Marple Newtown School District | Case 1652-10-11 | 2011-10-25

This is a redacted version of the original decision. Select details have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. Pennsylvania Special Education Hearing Officer DECISION Child’s Name: R.A. Date of Birth: [redacted] Dates of Hearing: September 13 & 20, 2011 CLOSED HEARING ODR Case # 1652-10-11-KE Parties to the Hearing: Representative: Parent Nancy Ryan, Esq. McKinley & Ryan 238 West Miner Street West Chester, PA 19382 Marple Newtown School District Karl Romberger, Esq. 26 Media Line Road Sweet, Stevens, Katz & Williams Suite 210 331 East Butler Avenue Newtown Square, PA 19073-4694 P.O. Box 5069 New Britain, PA 18901 Date Record Closed: October 12, 2011 Date of Decision: October 25, 2011 Hearing Officer: Jake McElligott, Esquire

2 INTRODUCTION AND PROCEDURAL HISTORY [Name redacted] (“student”) is a 17-year old student residing in the Marple Newtown School District (“District”) who is a student with a disability under the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEIA”) 1 1 It is this hearing officer’s preference to cite to the implementing regulations of the IDEIA at 34 C.F.R. §§300.1-300.818. . Specifically, the student is identified with severe autism, mental retardation, and other disabilities. The parties dispute the necessity, and therefore the appropriateness, of a residential component for the student’s educational programming. Particularly, parent claims that a residential setting is a necessary component for the provision of a free appropriate public education (“FAPE”) for the student. The District maintains that a residential setting is necessary only for the provision of medically necessary services; as such, a residential setting is not a necessary component for the provision of FAPE. Alternatively, the District argues that, due to the abdication of responsibility of other state-based and/or county-based agencies, or other funding sources, it has been placed in a position to provide behavior health services (including a residential component) necessary for a provision of FAPE but which rightfully belong under the auspices of other state-based and/or county-based agencies, or other funding sources.

3 For the reasons set forth below, I find that a residential setting is required to provide a FAPE to the student. ISSUES Is a residential setting necessary for the student to receive a FAPE? FINDINGS OF FACT 1. The student has been identified as a student with severe autism, mental retardation, and other disabilities, including speech and language disability other health impairments. (Joint Exhibit [“J”]- 27o). 2. The student was a typically developing infant for approximately one year. Thereafter, the student’s behaviors and emerging communication skills markedly changed. (Notes of Testimony [“NT”] at 333-340). 3. Even as a young child, the student exhibited behaviors that posed a danger to the student and to others, including aggressing against mother [redacted] 2 4. In the fall of 1999, the student began early intervention services. Wraparound mental health services were provided to the student, , violent tantrums, and posing a danger to younger siblings. (NT at 339-343). 2 [Footnote redacted].

4 increasing consistently from 30 to 40 to 50 hours of in-home services, all to little effect. The level of problematic behaviors, and lack of progress, led the student’s family to investigate more expert-level diagnostics and services. (J-1, J-10; NT at 339-343, 350). 5. Throughout the fall of 1999 and winter of 2000, the family sought expert-level diagnostics and services from [a Hospital and an Institute]. The [Institute] team found the student to have singularly unique and challenging needs [redacted]. In a residential setting at [the Institute], the student exhibited aggression [and other behaviors]. Restraints were often employed for the safety of the student and others. (J-2, J-3, J-4, J-5, J-6, J-6a, J-6b, J-6c; NT at 343-344). 6. Throughout the winter, spring, and summer of 2000 at [the Institute], the student received behavioral health services, and problematic behaviors were reduced from approximately 250 per day to approximately 20 per day. In July 2000, [the Institute] opined that the student should not be discharged to home but only to a facility setting. (J-11, J-11a, J-11b, J-11c, J-11d, J-11e, J- 11f; NT at 343-344, 350-351). 7. Transitioning the student from one environment or routine to another has always proved deeply challenging. At [the Institute], during a community outing with the student’s mother, it took half

5 a day to transition the student [redacted] back to [the Institute] due to the exhibition of dangerous behaviors and the need to employ behavior protocols. (NT at 348). 8. Anticipating discharge from [the Institute], in spring 2000, the student was school-aged, and so mother began working with the District on the student’s educational programming. The District agreed that the student required residential programming. In considering various programs, the student’s individualized education plan (“IEP”) team found no options available in eastern Pennsylvania. Eventually, a placement was secured at [an out of state placement]. The District issued a notice of recommended assignment in July 2000, developed an IEP, and the student began to attend [the out of state placement]. (J-7, J-7a, J-12, J-13, J- 13a, J-14, J-15; NT at 351-353). 9. Initially, the student entered [the out of state placement’s] neuro- behavioral unit, followed by a transition to [the out of state placement’s] residential program with an educational component. At first, the District paid for the entire placement, including its residential component. On appeal of the denial of funding for services by a county-based assistance provider, Magellan Services (“Magellan”), Magellan paid for services at [the out of state placement]. (J-15; NT 353-357).

6 10. Again, the student exhibited elevated levels of problematic behaviors due to transitions. The transition from [the Institute] to [the out of state placement] led to an increase in aggression [and other behaviors that] were constant safety concerns. The student posed a constant danger to [the student’s] self and others during transportation to and from at-home visits [redacted]. (NT at 355- 362). 11. The student remained at [the out of state placement] for approximately seven years, from 2000 through 2007. The IEP team would meet regularly, recommending that the student’s placement at [the out of state placement] continue, and the student made progress on IEP goals over that time. (See generally the 73 exhibits from J-14 through J-22c; NT at 358-359). 12. In spring 2007, due to concerns over the quality of services at [the out of state placement], the student left [the out of state placement]. (NT at 362-366). 13. After leaving [the out of state placement], the student was without any placement for a handful of months, living at home without any supports or services. Given the transition, the student again exhibited deeply problematic behaviors dangerous to the student and to others [redacted]. (NT at 368-371). 14. In May 2007, the student began to attend a [different facility]. After a review of the student’s profile, [the different facility]

7 admitted the student to its residential program, but a space was not immediately available. For three months, the student attended the day program at [the different facility]. Again, transitions were terribly difficult, this time on a daily basis. The student exhibited deeply problematic behaviors during transportation and upon arrival [redacted]. (J-23, J-23a, J-23b, J-24c, J-24d; NT at 371- 374). 15. In July 2007, [the different facility] was able to move the student into its residential setting. Deeply problematic behaviors continued to be exhibited [redacted]. Approximately one-and-a-half years passed before the student regained the level of progress the student exhibited at [the out of state placement]. (NT at 376-378). 16. The student made progress on IEP goals and behavioral goals while at [the different facility]. The student can sit in a chair for approximately 15 minutes and attend to tasks, has greatly diminished attempts at elopement [redacted], shows less aggression in transitions back to [the different facility], instead of aggressing can indicate “yes” or “no” as to preferred or non- preferred activity, and enjoys routine work assignments and tasks such as cleaning dishes, floor-sweeping, mail delivery, and sorting of recyclable materials. (See generally the 51 exhibits from J-23e through J-26n; NT at 379-386, 438-439, 442-443).

8 17. Even with progress in certain areas, transitions continued to be difficult for the student. After a particular [redacted] episode on a community outing with mother and stepfather, the student no longer makes community visits. (NT at 386-392). 18. While at [the different facility], the District funded the educational component of the student’s program and Magellan funded the residential component. The student’s mother testified that, over the years, there was regular and intense pressure from Magellan to end its funding. Magellan reduced the review period for the student’s eligibility from every 120 days to every 90 days. (NT at 395-399, 425). 19. Over the fall 2010, appeals of Magellan’s decision to end funding because the student had “stabilized” were successful, but Magellan persisted in seeking to end its funding of the student’s residential component, including a reduction in the review period from every 90 days to every 60 days. (J-27, J-27a, J-27b, J-27c, J- 27d, J-27e, J-27f, J-27g, J-27h; NT at 401-407, 425). 20. At a December 2010 interagency coordination meeting, Magellan made it clear that it did not see the need to continue funding a residential component for the student, and the District was resistant to funding a residential component. (J-27h; NT at 402-405, 446-449).

9 21. In addition to reducing the length of its review period, Magellan employed a number of strategies to place the student in a position where it could claim the student no longer required a residential component, including increasing the criteria for retaining a residential component from four criteria to six; the offer of in-home therapeutic support which, when accepted by parent, was used as a reason by Magellan to argue against the need for a residential component; parent training ostensibly for the student’s home visits but used as a reason by Magellan to argue against the need for a residential component. (NT at 407-414, 417-421). 22. In January 2011, the District, not having evaluated the student for some years, requested permission to evaluate the student. (J-27i; NT at 404). 23. The student’s IEP goals included four self-care goals (washing, shaving and teeth-brushing), one community goal (shopping), one communication goal, one goal for domestic chores, one social skills goal (turn-taking with peers), one pre-vocational goal (package delivery), and three academic goals (recognizing the student’s name, task acquisition skills and gross motor modeling). All but one of these goals is labeled in the IEP as “residential” or “residential/educational”, meaning instruction and/or assessment of the goals is solely or in part in the residential setting. (J-26k, Hearing Officer Exhibit (“HO”)-4).

10 24. In March 2011, the student’s mother filed a special education due process complaint, seeking to maintain the residential component of the student’s program in the light of the positions taken by Magellan and the District. 25. In June 2011, upon motion of the parent, this hearing officer issued an interim ruling maintaining the student’s placement at [the different facility] as the pendent placement, pending the outcome of this hearing. (HO-8). 26. Any transition for the student is difficult and dangerous. The student requires regularity, structure, and routine to maintain a semblance of behavioral stability. Additionally, due to [problematic behaviors], the student requires one-on-one assistance with trained personnel always at arm’s length. (NT at 392-395, 418, 422, 426-427, 434-435, 443-444). DISCUSSION AND CONCLUSIONS OF LAW To assure that an eligible child receives a FAPE (34 C.F.R. §300.17), an IEP must be reasonably calculated to yield meaningful educational benefit to the student. Board of Education v. Rowley, 458 U.S. 176, 187-204 (1982). ‘Meaningful benefit’ means that a student’s program affords the student the opportunity for “significant learning” (Ridgewood Board of Education v. N.E., 172 F.3d 238 (3 rd Cir. 1999)), not

11 simply de minimis or minimal education progress. M.C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 1996). The student has severe communication and behavioral needs. (FF 1, 3, 5, 23, 26). To be available for instruction, the student requires a residential component for the delivery of the student’s IEP. (FF 4, 5, 6, 11, 13, 16, 23). The critical aspect to this finding is the long-standing and deeply problematic issue the student has with transitions, especially physical transitions between environments or settings. (FF 3, 7, 10, 13, 14, 15, 17). Indeed, the student’s difficulty with transitions makes the prospect of delivering necessary services, whether educational services or behavioral health services, in a non-residential setting or through a transportation-driven schedule would be wholly inappropriate. Because of this, the provision of educational services with a residential component is necessary for the delivery of a FAPE for the child. Instructive in this regard is the reasoning of the hearing officer in the special education decision at K.H. v. Marple Newtown School District, 01716-1011 (May 23, 2011). There, the two cases cited by each party in the instant case in support of their positions are explicated persuasively. Parent cites to Kruelle v. New Castle County School District, 642 F.2d 687, 694 (3d Cir. 1981). It is an older case, but still good law, a case where the reasoning and holding support the parent’s position in this dispute, namely the fact that a residential placement that may provide other needs (in the instant case, behavioral health services) does not

12 necessarily negate its appropriateness, or necessity, for the provision of FAPE.3 Yet in support of the District’s position, it cites to Mary Courtney T. v. School District of Philadelphia, 575 F.3d 235 (3rd Cir. 2009). There, the Court clearly held that parents could not be reimbursed for a residential placement that served a purely medical, or more broadly non- educational, purpose; indeed, the placement in Mary Courtney T. provided no educational services at all. In this case, however, a residential component is a requirement for the student to receive FAPE: not only is it the only means to make the student available for instruction but even the goals in the student’s IEP are written for instruction and measurement in a residential setting. (FF 6, 11, 13, 15, 16, 23). The student clearly requires a residential component for the delivery of FAPE. And while it is not within the jurisdiction of this hearing officer to make findings regarding the delivery of behavioral mental health services for non-educational purposes, this decision cannot be issued without passing commentary on the machinations of funding agencies outside of the District to avoid provision of, or sharing in, residential costs for this student. (FF 8, 9, 18, 19, 20, 21, 26). Based 3 And IDEIA envisions that a residential setting, where necessary for the delivery of FAPE, must be provided to a student: “If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.” 34 C.F.R. § 300.104.

13 on the totality of the evidence provided in this voluminous record (in terms of the number of exhibits), it seems to this hearing officer to border on incredulity for a non-educational agency to assert that the student does not require a residential setting for the delivery of behavioral health services. CONCLUSION The student requires a residential setting for the provision of FAPE. • ORDER In accord with the findings of fact and conclusions of law as set forth above, the student requires a residential setting for the provision of a free appropriate public education. Any claim not addressed in this decision and order is denied. Jake McElligott, Esquire Jake McElligott, Esquire Special Education Hearing Officer October 25, 2011