Parents are awarded an out of district placement after proving that the district’s program for a child with Autism and Intellectual Disability does not provide FAPE

A Brookline family has just prevailed in a decision issued by the BSEA’s newest hearing officer, Amy Reichbach, finding that the district’s program did not provide a FAPE and ordering Brookline to place the student at the RCS Learning Center in Natick.  In Re: Jacqueline, BSEA #1408578.  Attorney Dan Heffernan of our firm represented the family in this close, complex, and hard-fought case.  The decision highlights many of the types of issues that frequently arise where districts struggle to address the severe and multifaceted needs of children who require intense, systematic, consistent, and comprehensive services and need to be with peers who will provide for mutual learning and progress.  Districts do their best to meet such needs in most cases, but the lack of a sufficient cohort of students with comparable needs and the incompatibility of the normal structure of a regular school setting – generally open and flexible, expecting growing independence from all students – often make it difficult for a severely involved child to make meaningful progress. 

In this case, the student had made progress in some areas, such as the use of her “talker” device and in feeding herself, but the hearing officer found her to have been making little or no progress in the development of several critical skills because of her autism:  nonverbal working memory; visual-motor integration; receptive language; functional communication; and adaptive skills.  A key to the decision was the question whether the student was even capable of making better progress – a classically elusive issue to nail down, especially for a student without language.  Brookline’s psychologist and the family’s expert differed in their assessments of the student’s capabilities. The hearing officer found the family’s expert’s higher estimate of the student’s cognitive abilities more believable than the opinion of the school’s witness largely because of the extensive experience the family’s expert had in testing and working with children with autism and intellectual disabilities.

Though there were other peers coming and going in Brookline’s program, Brookline’s classroom effectively provided the student with only two peers to work with through the day. Neither peer had autism and both were significantly more able than the student in their use of language.  No peers used a device for communication.   Outside of the classroom, efforts to include the student led to virtually no meaningful interaction with neuro-typical peers.

On the basis of these findings the hearing officer concluded that the student needed to be moved to a placement where she could be immersed with peers who shared her reliance on a communication device and her need for constant teaching, reinforcement and supports in a program that was comprehensively dedicated to working with students with comparable cognitive and developmental profiles.  She found that while Brookline’s program provided scattered high spots of teaching and appropriate interventions through the day, this student needed continuity throughout the day in order to make meaningful progress.  Given the structural and demographic limits of the district, she found that Brookline’s program could not be added to or modified sufficiently to provide the student with FAPE.

It is clear in reading the description of the testimony and documentation in this proceeding that the school’s employees and parents respected each other and shared a genuine love and concern for the child.  The district brought to the matter a sincere commitment to trying to solve the problem of teaching a child with such a complex and serious mix of disabilities within a public school environment, honoring the principles of inclusion, while doing their best to help the child develop skills that would ultimately enable her to live as close to an autonomous life as her disabilities will allow.  However, despite the district’s best intentions, the program was not able to focus sufficiently on the particular needs of a student like “Jacqueline,” and she therefore required an out of district placement that specialized in serving the needs of this type of student.

Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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