Yeah ok, on the offf chance that this might interest someone besides me cares---a precedent-setting case against LAUSD: Summary, Decision, and Order (9th Circuit). The importance of it is two fold: grades are NOT the only indicators of success AND social skills are an important part of education. Discuss with me! Someone? Or just make sex jokes.
FOR IMMEDIATE RELEASE
LAUSD (Golliath) takes on an attorney/advocate (David) in a full attack to block 3 hours of services per week for her 8-year old autistic son.
A2Z Educational Advocates and the law offices of N Jane DuBovy stand up again to LAUSD. 3rd grade High Functioning Autism Student prevails against LAUSD in a due process hearing. The issues were whether he was entitled to Speech and Language Services, Social Skills and Recreational Therapy, despite the recommendations of the IEP team. In an important decision, the IHO found that the school was not meeting the Student’s needs in the important areas of accessing his leisure time, social relations and understanding the nuances of typical speech.
What makes this case so unique is that Petitioner attends one of the more autistic friendly schools in the district but they still lack the understanding of how to work with this population. Another interesting aspect of this case is that Petitioner had no academic issues per se. His grades are superior and he is accessing the academic curriculum for the third grade.
BEFORE THE
CALIFORNIA SPECIAL EDUCATION HEARING OFFICE
In the consolidated Matter of:
C.R.
Petitioner/Cross-Respondent,
vs.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Respondent/Cross-Petitioner
Case No.: SNO I -00902/SN02-01903
DECISION
This consolidated matter was heard before Van T. Vu, Hearing Officer of the California Special Education Hearing Office (Hearing Office), McGeorge School of Law, University of the Pacific, in Los Angeles, California, on September 19, 20, 24, 25, and 27, 2002.
Petitioner, C. R. (Petitioner) was represented at the hearing by attorney Michael White and his mother, N Jane DuBovy. Petitioner's father, Michael Reilly was present during the first two days of hearing.
The Los Angeles Unified School District (District or LAUSD) was represented at the hearing by attorney Cynthia Floyd. Due process specialists for the District, Agatha Metichecchia and Laverne Dumay, were also present as the District's representative on separate occasions during the hearing.
The Petitioner called the following witnesses: N Jane DuBovy, his mother; Michael Reilly, his father; Anita Boxer, speech and language pathologist; and Devina Valdez, his one-to-one aide. The Petitioner also called Ms. Cynthia Ferber, certified therapeutic recreation specialist, and Dr. Ken Curtis, behavioral consultant, as a rebuttal witnesses.
The District called the following witnesses: Vida Brucker, inclusion facilitator; Kent Campfield, physical education teacher; Judith Barnett, school psychologist; Pat Grayson-DeJong, autism technical expert specialist; Kathryn Hoar, recreational therapist; Diane Halperin, speech and language pathologist; Jean Vegas, third grade general education teacher; and Julie Yoshida, second grade general education teacher.
Oral and documentary evidence was received. Oral closing arguments were made on October 7, 2002. The record was then closed, and the matter was submitted for decision.
ISSUE
For the 2002-2003 school year, does Petitioner require the following related services to benefit from his education:
a. Two hours per week of combined speech and language therapy and social skills training from Anita Boxer, and
b. One hour per week of recreational therapy from Cynthia Ferber?
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Petitioner is an eight-year-old high-functioning autistic student who has been eligible for special education and related services since he was three years old. Although Petitioner generally functions within the "average" to "very superior" range cognitively, he has deficits in the areas of speech and language, behavior, social skills, and sensory modulation and bilateral coordination. (Dist. Exhs. 39, 5 1, and 57.) Petitioner is currently fully mainstreamed in Ms. Jean Vegas's third grade general education class at Marquez Charter School. To assist him in his educational program,
Petitioner is provided a one-to-one aide, inclusion support services, behavioral consultation and direct services from a nonpublic agency, and school based occupational therapy consultation. Pursuant to stay put, Petitioner also receives two hours per week of individual speech and language therapy and social skills training with Anita Boxer, and one hour per week of recreational therapy with Cynthia Ferber. Petitioner lives at home with his parents and older brother.
From at least March 1998 until the fall of 2000, Petitioner attended the Palisades Montessori School, a nonpublic school, and received all of his related services through nonpublic agencies. Towards the end of his 1999-2000 school year, Petitioner's IEP team began to plan for his transition towards services provided by the District. Pursuant to his March 14, 2000 IEP and subsequent addenda (i.e., March 14, 2000 IEP, April 17, 2000 IEP, June 14, 2000 IEP, and November 15, 2000 IEP), Petitioner's IEP team placed him in the first grade at the District's Marquez Charter School for the fall of the 2000-2001 school year. During that school year, Petitioner attended a general education class taught by Maryann Lessin and was provided District services of a one-to- one aide, an inclusion facilitator, and one hour per week of school-based occupational therapy. Additionally, he received through nonpublic agencies one hour per week of occupational therapy from Sandra Greene, five hours per week of behavior consultation and direct services from Dr. Ken Curtis, and two hours per week of speech and language services from Anita Boxer. The District also reimbursed Petitioner's parents for one hour per week of private recreation therapy services from Cynthia Ferber.
1 The number of IEP meetings held to develop and clarify Petitioner's placement for his first grade year and the content of those IEPs indicate that the District and Petitioner's parents disagreed about the appropriate type and level of services to meet his needs. Those disagreements were apparently resolved through the IEP process and/or through informal dispute resolution procedures without the need for a due process hearing. (Dist. Exhs. 19, 21, 22, 2 7, and 29.)
On March 13, 2001, Petitioner's IEP team convened for his triennial review to determine his progress at Marquez during the first grade. According to the IEP, Petitioner made "much growth in all areas" and he "can access his curriculum... with his current placement in the general education classroom with LRE support and additional classroom support." (Dist. Exh. 51 at pgs. 12b and 12c.) Additionally, the team determined that Petitioner had met all of his goals and objectives in the areas of social skills and sensory/motor development, except for the goal to engage in independent play for 15 minutes. However, Petitioner had not met any of his speech and language goals, which pertained to improving his narrative skills, verbal problem solving and inferential skills, and referential specificity in communicating a message.
In light of Petitioner's progress, the entire IEP team agreed to reduce his school-based OT therapy from one hour per week to one hour per month, and to continue all other District provided placement and services and the behavioral services provided by Dr. Ken Curtis. Although Petitioner had not met any of his speech and language goals, the District members of the EEP team recommended a reduction of Petitioner's NPA speech and language services from two hours per week to one hour per week. Moreover, they recommended that his NPA occupational therapy and reimbursement for the NPA recreational therapy be discontinued. Disagreeing with the District's recommendations regarding the reduction and elimination of Petitioner's NPA services and reimbursement, his parents requested a due process hearing on April 26, 2001. That case was assigned case number SN01-00902 by the Hearing Office. In an effort to resolve this matter informally, the parties requested that this case be taken off calendar on May 16, 2001. 2 Pending the due process hearing, Petitioner continued to receive all of his NPA services as part of his stay put placement. 3
Petitioner's IEP team convened again on April 5, 2002, this time to review his progress during the second grade. At the meeting, the team determined that Petitioner met his vocational education and behavior goals and objectives, and all of his occupational therapy goals and objectives except for the one pertaining to maintaining attention to task. Petitioner did not meet his social skills goals and again did not meet his speech and language goals. With regard to his social skills goals, the IEP team noted that "Petitioner continues to need to develop appropriate conversational skills.” (Dist. Exh. 57 at pg. 2.) The District members of the IEP team recommended Petitioner's continued full integration in a general education class and the continuation of his one-to-one aide services and NPA behavioral services.
Additionally, the District members of the team recommended eliminating his private speech and language services and replacing it with one half hour of school-based speech and language services per week, and reducing his occupational therapy services to two hours of school-based occupational therapy consultation per year. Moreover, they again recommended the elimination of Petitioner's NPA recreation therapy services, which would be replaced by social skills training and services to be provided by his multidisciplinary team (i.e., his inclusion facilitator, general education teacher, aide, and any DIS provider.) Petitioner's parents disagreed with the recommendations to eliminate his two-hours-per-week of NPA speech and language services and his one-hour-per-week of recreation therapy.
On August 21, 2002, they requested another due process hearing, this time, to resolve issues pertaining the District's recommendation of services for the remainder of the 2001-2002 school year and extended school year and the 2002-2003 school year. The Hearing Office assigned the matter case number SN02-01903.
2 This matter did not proceed to hearing until September 19, 2002, after it was consolidated with case SN02-001903.
3 It appears from the April 5, 2002 IEP that Petitioner's parents eventually agreed to the elimination of NPA OT services and the implementation of the District's recommendation of 120 minutes of school-based OT consultation services per year.
On September 4, 2002, upon the request of the District, the Hearing Office consolidated cases SNO 1 - 00902 and SN02-01903. The consolidated matter proceeded to hearing on September 19, 2002. On the first day of hearing, during the clarification of the issues with the Hearing Officer, Petitioner acknowledged that the remedies he sought for the 2000-2001 school year and extended school year had already been obtained through stay put. Accordingly, he withdrew all of his issues pertaining to the 2000-2001 school and extended school year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
For the 2002-2003 school year, does Petitioner require the following' related services to benefit from his education: (a) two hours per week of combined speech and language therapy and social skills training from Anita Boxer, and (b) one hour per week of recreational therapy from Cynthia Ferber?
Under both State law and the federal Individuals with Disabilities Education Act (IDEA), students with disabilities have the right to a free appropriate public education (FAPE). 20 U.S.C. § 1400; Education Code § 56000. The term "free appropriate public education" means special education and related services that are available to the student at no charge to the parent or guardian, that meet the State educational standards, and that conform to the student's individualized educational program (IEP). 20 U.S.C. § 1401(a)(8). An IEP is a written statement that must be developed, reviewed, and revised for each student with a disability. The IEP must include a statement of the goals and objectives, of the special education and related services, and of the program modifications or supports for school personnel that are to be provided to enable the student to be involved in and progress in the general curriculum, and to be educated and participate with disabled and nondisabled peers in extracurricular and other nonacademic activities. 20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.347; Cal. Educ. Code §§ 56343 and 56345.
"Special education" is defined as specially designed instruction to meet the unique needs of the student, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. 20 U.S.C. § 1401(a)(16). In California, special education is described as providing a full continuum of program options, including instruction in school and other nonschool settings, to meet the educational and service needs of the disabled child in the least restrictive environment. Cal. Educ. Code § 56031. Furthermore, California describes special education as "an integral part of the total public education system and provides education in a manner that promotes maximum interaction between disabled and nondisabled students in a manner that is appropriate to the needs of both." Id.
The term "related services," which is also referred to in California as "designated instruction and services" (DIS), includes developmental, corrective, and supportive services that may be required to assist a child with a disability to benefit from special education. 20 U.S. C. § 1401(22); Cal. Educ. Code § 56363. Included in the list of related services are speech and language services to address communicative deficits and recreation. Cal. Educ. Code § 56363(b)(15). "Recreation" includes leisure education, recreation programs in schools and community agencies, and therapeutic recreation services. 34 C.F.R. § 300.24(b)(10); 5 C.C.R. §§ 3051.15 and 3065. Leisure education programs are those "programs designed to prepare the pupil for optimum independent participation in appropriate leisure activities, including teaching social skills necessary to engage in leisure activities, and developing awareness of personal and community leisure resources." 5 C.C.R. § 3051.15(c). Recreation programs are those "programs that emphasize the use of leisure activity in the teaching of academic, social, and daily living skills; and, the provision of nonacademic and extracurricular leisure activities and the utilization of community recreation programs and facilities." 5 C.C.R. § 3051.15(b).
Additionally, therapeutic recreation services are "specialized instructional programs designed to assist pupils in becoming as independent as possible in leisure activities, and when possible and appropriate, facilitate the pupil's integration into regular recreational programs." 5 C.C.R. § 3051.15(a). Related services "may be provided to individuals or to small groups in a specialized area of need, and throughout the full continuum of educational settings," including in settings outside of the school environment as discussed above. 5 C.C.R. §3051(a)(1)
The only issues in this case involve whether Petitioner requires related services in the form of two hours per week of NPA speech and language services from Anita Boxer (which includes one hour of social skills training per week) and one hour per week of private recreational therapy from Cynthia Ferber in order to benefit from his education. Petitioner acknowledges that he is excelling academically, and he does not dispute any aspect of his educational program and placement relating to his academic achievement, behavior, or sensory motor needs. According to Petitioner, his main deficits are in social communication and developing and maintaining social relationships, yet those needs are not adequately addressed by the District's offered program. Hence, Petitioner argues that Ms. Boxer's services are necessary to address his deficits related to language pragmatics and social communication, and to teach him skills necessary to develop appropriate social relationships with his peers. Additionally, Petitioner contends that Ms. Ferber's recreational therapy is required to teach him the social skills necessary to engage in leisure activities and to reinforce the social skills training from Ms. Boxer.
The District generally acknowledges that Petitioner has deficits in the areas of social skills and social communication and pragmatics, but disputes that Petitioner requires the type and level of services provided by Ms. Boxer and Ms. Ferber. Rather, it contends that the offer of one half hour of school-based small group speech and language services, weekly social skills instruction from inclusion specialist Vida Brucker, and the support of Petitioner's multidisciplinary team in the school environment is sufficient to enable Petitioner to benefit from his education.
The Hearing Officer will address each of Petitioner's requests in turn.
a) Speech and language therapy and social skills training from Anita Boxer
The preponderance of the evidence supports Petitioner's contention that he requires two hours per week of combined individual speech and language therapy and social skills training from Anita Boxer rather than the combination of services offered by the District for him to benefit from his education during the 2002-2003 school year. First, the evidence establishes that Petitioner has significant pragmatic and social communication problems and social skills deficits that require speech and language therapy and social skills training.
The testimony and March 2002 report of Anita Boxer, a speech and language therapist who has been providing Petitioner two hours per week of services since 1998, indicate that Petitioner's deficits are in the "subtler aspects of language and communication.” (Dist. Exh. 53.) According to Ms. Boxer, Petitioner has a concrete thinking style and a "markedly restricted ability to recognize and/or interpret the nonliteral meanings in phrases." (Dist. Exh. 53 at pg. 3; Test. of Anita Boxer.)
For example, he has difficulty interpreting idioms, sarcasm, and indirect requests within various contexts. Additionally, Petitioner has moderately impaired verbal problem-solving abilities, exhibited by a limited ability to define terms, thoroughly process salient information to interpret a situation, and determine causes for actions. Ms. Boxer indicated that this deficit negatively impacts Petitioner's critical thinking skills and social effectiveness. Petitioner also has a mildly impaired ability to listen critically and determine reasonable assumptions from facts, which results in great difficulty answering "Wh" questions (i.e., questions beginning with "'what, when, where, and why."
Furthermore, Petitioner has social communication difficulties resulting from his "inattention, egocentric perspective, his use of vague language, his concrete thinking style, and his inefficient visual processing of social situations." Petitioner has been noted to lose attention and become detached and distant, during which he becomes nonresponsive to verbal signals or directions. Additionally, Ms. Boxer reports that Petitioner presumes that his listener has the prior background knowledge necessary to understand the context of his statements, but when they do not, he becomes intolerant and either refuses to explain himself or he uses vague language not understandable to his listener.
Petitioner's concrete thinking style also affects his social communication, such as when he focuses on details unimportant to the topic or asks questions that derail the flow of the discussion. Furthermore, Petitioner has difficulty recalling, re-envisioning, prioritizing and then encoding a recent event, particularly when he was not fully involved in the situation. He requires verbal hints, directed questions, and/or task simplification in order to narrate the events that occurred. Thus, while Petitioner is better able to sequence events he hears narratively, he has difficulty giving adequate descriptions of what he is seeing.
The District's speech and language specialist, Diane Halperin, also assessed Petitioner in March 2002. Ms. Halperin determined from an oral language sample that Petitioner had poor eye contact and a general lack of focus and had difficulties engaging in a sustained narrative, finishing his sentences, and elaborating on his responses to direct questions. Although Ms. Halperin later testified that she believed Petitioner's pragmatic difficulties were due to his behavior problems rather than to a language deficit, she concluded in her report that Petitioner had "moderate pragmatic difficulties which may interfere with his ability to access the core curriculum." Accordingly, she recommended that Petitioner be provided speech and language services and a pragmatic language goal was later developed for Petitioner during the April 2002 IEP meeting.
The Hearing Officer is not persuaded by Ms. Halperin's testimony dispelling the existence of a pragmatics deficit. First, Ms. Halperin's testimony was not consistent with her report, where she found "moderate pragmatic difficulties" to exist. Second, Ms. Halperin's testimony was based primarily on a comparison of her observations with his performance the year before during a twenty-minute language sample conducted in which he exhibited no pragmatic difficulties. Ms. Halperin theorized that the lack of any language problems during the 2001 language sample indicated that the problems during the 2002 sample could have been due to his behaviors and not to a language deficit.
However, as was discussed above, Ms. Boxer also conducted an assessment about the same time period as Ms. Halperin's and she found the same language problems to exist. Unlike Ms. Boxer who has worked intensively with Petitioner for over three years, Ms. Halperin's only significant experiences with Petitioner were her two ninety-minute assessments of him. Third, Ms. Boxer's conclusions were based on her observations and experience with Petitioner, as well as on language assessments that corroborated the existence of his language deficits. (See Dist. Exh. 53.) Ms. Halperin's testimony was based primarily on her brief language samples of Petitioner's speech. Thus, the Hearing Officer gives the findings and conclusions of Ms. Boxer more weight because her testimony and report were based on her extensive personal knowledge of Petitioner and other corroborating information.
Directly related to Petitioner's social and pragmatic communication problems is his difficulty with social interactions. The parties do not dispute that Petitioner has social skills difficulties relating to his peers. According to his most recent psycho educational assessment report (dated March 5, 2001), Petitioner relates well with his parents and teachers, but "his social interactions with his peers [are] not well developed.” (Dist. Exh. 39 at pg. 4.) Additionally, the report indicated that Petitioner "continues to have some delays in ... social interactions," has "inconsistent eye contact,” “resists physical contact with others, becomes upset when routines are changed, and responds negatively at times when given directions." Id. Judy Barnett, the school psychologist who assessed Petitioner, concluded that his "level of social development and communication skills are not yet commensurate with his chronological age, intellectual ability, and academic achievement." Id. In light of her findings, Ms. Barnett recommended that Petitioner be encouraged to "develop age appropriate socialization skills by teaching, enforcing, and modeling the skills of initiating conversation with others, and initiating and maintaining play in a group situation. ,5 Id. at pg. 7.
Sandra Greene, Petitioner's prior private occupational therapist, also noted some concerns regarding his adaptive social behavior in her February 2001 progress report. (Dist. Exh. 40.) She stated that Petitioner struggled "with taking and understanding social cues from other children in the [therapy] group... [had] difficulty with flexibility" and he required help 30-40 percent of the time when negotiating the sharing of a toy. Additionally, she wrote that Petitioner did not have a "grasp of how his behavior appears to other people" and that he was becoming physically aggressive with other children as a way to get them to play or maintain play.
Similarly, a recreation therapy report by Cynthia Ferber dated March 2002 indicates that Petitioner has difficulty with distractibility/inattention, frustration tolerance, sustaining participation when activities are difficult or challenging, and sportsmanship in general. (Dist. Exh. 55.) When frustrated or stressed, Petitioner may respond with negative attention seeking behaviors, noncompliance, and/or withdrawal from the activity.
Ms. Ferber concluded that Petitioner's difficulty in social situations, social recreational activities, and physical activities is based on his difficulty understanding, reading, and interpreting social cues and gestures. Moreover, she stated that his concrete thinking, coupled with his difficulty with abstract reasoning and interpretation of social innuendoes and cues, "make it difficult for him to participate and fully understand various social, everyday situations with his peer group." Id at pg. 1
4 Petitioner's receptive comprehension, expressive syntax, and use of language have consistently been found in the past year and a half to be at least within normal limits. (Dist. Exhs. 34, 53, and 54.) These areas are not at issue in this Decision.
5 Ms. Barnett's findings and conclusions were included in Petitioner's March 13, 2001 IEP and a social skills goal was written for Petitioner. The goal was to increase Petitioner's ability to appropriately express his attitudes, moods, feelings, and/or opinions in a discussion with two or more students. (Dist. Exh. 51 at pg. 5a.) According to his April 2002 IEP, Petitioner's social skills goal from March 2001 had not been met. (Dist. Exh. 57 at pg. 2)
The findings and conclusions in the various reports discussed above are further corroborated by the testimony of Petitioner's mother, N. Jane DuBovy, his aide, Devina Valdez, his NPA speech and language therapist, Anita Boxer, his recreational therapist, Cynthia Ferber, and his behavioral therapist, Dr. Ken Curtis. Each testified that Petitioner does not seek out the company of others and does not have any "special friends" with whom he interacts and maintains a relationship. They also testified that he is a concrete thinker who is egocentric and who has difficulty understanding social cues and gestures.
In summary, Petitioner has social skills deficits and problems with pragmatic language and social communication. In light of these needs, Petitioner's April 2002 IEP team developed speech and language goals addressing his pragmatic language and oral communication problems. Additionally, the team developed an oral language/social skills goal to deal with his difficulties relating to his peers. 6 Given that the District has offered him some speech and language services and social skills training, there is no dispute that Petitioner requires these types of services to address his social and language deficits and to benefit from his education.
Second, with regard to the amount of services that is appropriate, the evidence establishes that Petitioner requires the two hours of combined speech and language and social skills services that he requests. As described above, Petitioner requests a continuation of his current services, which include one hour of individual speech and language services and one hour of small group (with one other student) social skills training provided by Ms. Boxer. The District offered Petitioner thirty minutes of school-based group speech and language services to address his pragmatic language problems, 30 to 40 minutes of social skills training conducted to Petitioner's entire class, and the support of his multidisciplinary team. Because Petitioner's language deficits impact his ability to relate socially with his peers, and because the language and social skills services offered by both parties overlap in some manner, the Hearing Officer will address both services together.
As was noted above, Anita Boxer is the speech and language therapist who has the best and most extensive knowledge of the type and scope of Petitioner's language and social communication needs. At hearing, Ms. Boxer testified that Petitioner requires the continuation of his two hours of services to address his communication and social needs. Although Ms. Halperin testified that one-half hour of small group therapy is sufficient to address Petitioner's language problems, Ms. Halperin acknowledged at hearing that Ms. Boxer is much more familiar with Petitioner's language needs than she is. Additionally, Ms. Halperin's most recent assessment of Petitioner's pragmatic language difficulties was cursory and based primarily on a brief language sample.
Ms. Halperin did not explore through further testing the extent or nature of the deficits she observed. While both Ms. Boxer and Ms. Halperin made their recommendations for services based on their experience and expertise, Ms. Boxer had a better knowledge of the student in making her recommendation. Accordingly, the Hearing Officer gives the recommendation of Ms. Boxer regarding Petitioner's need for the level of speech and language services more weight.7
With regard to the social skills training, Ms. Boxer testified that Petitioner requires one hour per week of services to be devoted to allowing him to practice the social communication skills that he learned during his one-hour language therapy sessions. During his speech and
6 The appropriateness of Petitioner's goals and objectives are not at issue in this hearing.
7While other people offered testimony regarding the appropriate level of speech and language services for Petitioner, none were speech and language pathologists or had any background or expertise in language issues. Therefore, the Hearing Officer did not find their testimony persuasive on this point.
language therapy, Petitioner works with Ms. Boxer, in part, on concepts of social communication. Often, Ms. Boxer will assist Petitioner to develop a "social story" that walks Petitioner through a social skill and appropriate interpretations and responses to a social situation. (Student Exh. 1.) The lesson is then reinforced during the social skills therapy. The social skills’ training is conducted with one other child and is done in the context of a cooking lesson, which Petitioner enjoys. During the therapy, Petitioner is taught, enforced, and modeled the skills of initiating and maintaining conversations and interaction with the other child. Ms. Boxer and Petitioner's mother testified that Petitioner feels secure in the therapy environment Ms. Boxer has created and has responded to therapy. They also testified that in larger situations when Petitioner feels stress, he tends to "space out" and become distant and nonresponsive to instruction. Thus, they testified that Petitioner would not be able to learn and internalize the social skills lessons that are taught with more children involved and where he does not feel secure. As further reinforcement, Petitioner's social stories are then given to Petitioner's aide at school to apply whenever appropriate and to Petitioner to remind him what to do in certain situations. (Test. of Ms. Boxer and Ms. Valdez.)
The District offered Petitioner another means by which he would be instructed in social skills and allowed to practice his skills. Ms. Vida Brucker, the District's inclusion specialist, testified that her social skills instruction to Petitioner's class is sufficient to instruct him on improving his social skills. According to Ms. Brucker, she provides social skills instruction to Petitioner's entire class where she instructs them on topics including character, how to be a friend, and how to be an active listener.8 Ms. Brucker also testified that the social skills lessons are later applied during his school day through the multidisciplinary team. Ms. Brucker pointed out that the April 2002 IEP provides modifications for Petitioner such as "opportunities for cooperative group activities in the class and on the playground to encourage appropriate social interactions." (Dist. Exh. 59 at pg. 6.) According to Petitioner's April 2002 IEP, the multidisciplinary team includes Ms. Brucker, Petitioner's teacher and aide, and any provider of related services.
The Hearing Officer finds that the District's offer of social skills instruction and support is deficient and would not enable him to benefit from his education. Dr. Ken Curtis, Petitioner's behavior consultant, testified persuasively that Ms. Brucker's social skills class is appropriate to teach the students in his class to understand how to relate to Petitioner, but it is insufficient to teach Petitioner social skills. Dr. Curtis has worked with Petitioner for many years and has intimate knowledge of how Petitioner behaves at school and of ways that Petitioner learns how to navigate within his environment. Dr. Curtis testified that Petitioner is a concrete thinker who does not understand social cues or nuances.. 9 Essentially, Dr. Curtis testified that Petitioner is able to learn a social rule, but will not be able to apply it because he cannot read the social cues in the context of interactions as they are occurring. Therefore, according to Dr. Curtis, Ms. Brucker's lessons alone are not sufficient for Petitioner to internalize and apply the social skills he is taught. Dr. Curtis's testimony is consistent with that of Ms. Boxer and Petitioner's mother, Ms. DuBovy, above.
8Ms. DuBovy testified that she does not dispute the provision of this service for Petitioner because "it couldn't hurt, " but she argues that Ms. Brucker's social skills training is insufficient to address Petitioner's social skills needs. This contention is addressed immediately below.
9These specific facts are also testified to by many other witnesses and are not disputed by the District
Additionally, although Ms. Brucker testified that Petitioner's social skills training would be supported by the multidisciplinary team, the undisputed evidence indicates that the team does not meet regularly to develop plans to assist Petitioner in his program. Rather, the members of the team meet briefly and in passing to discuss Petitioner's progress. Additionally, Devina Valdez, Petitioner's aide who is with him throughout the day, testified that she is supervised by Dr. Curtis and receives her instruction on how to work with Petitioner from him. However, Dr. Curtis testified that his services do not include teaching Petitioner social skills and that he only addresses Petitioner's social skills issues if they manifest as a behavioral issue. Therefore, Devina would not have been provided any significant guidance on ways to assist Petitioner to apply or practice his social skills from the multidisciplinary team under the District's offer. Accordingly, the combination of social skills training from Ms. Brucker and the vague offer of support from the multidisciplinary team is not appropriate for Petitioner to benefit from his education.
From the evidence above, the Hearing Officer concludes that the District's offer was not appropriate to address Petitioner in improving his social skills. Rather, the evidence indicates that Petitioner requires the hands--on instruction and practice that is recommended and provided by Ms. Boxer. In summary, it was found above that Petitioner requires the two hours of combined speech and language therapy and social skills training that he requests. Because those services have been provided by Ms. Boxer for over three years and she is familiar with his needs, and because Petitioner's social skills training includes a child he works well with and responds to, Petitioner's needs would be met by continuing the therapy and training through Ms. Boxer.
b) Recreation therapy services from Cynthia Ferber
The preponderance of the evidence also establishes that Petitioner requires one hour per week of recreation therapy to enable him to access his leisure activities. The uncontested evidence establishes that Petitioner can work and play with other children, but he does not initiate the interactions and he will generally participate only if he is proficient in playing the game. During recess and other free time outdoors, Petitioner will only play handball.
The only evidence from a source knowledgeable of recreation therapy and Petitioner's needs in this area came from Petitioner's recreation therapist, Cynthia Ferber. As described above, Ms. Ferber's report indicates that Petitioner has difficulty with distractibility/inattention, frustration tolerance, sustaining participation when activities are difficult or challenging, and sportsmanship in general. Additionally, Ms. Ferber noted in her report that Petitioner has difficulty in social situations, social recreational activities, and physical activities. Although the witnesses all testified that Petitioner is able to play handball with other children during recess at school, the undisputed testimony from Ms. Ferber establishes that Petitioner's playing of handball is perseverative and interferes with his ability and motivation to access other appropriate leisure activities. Ms. Ferber testified at hearing that Petitioner does not access his leisure activities appropriately and requires recreational therapy to address this need. In light of Petitioner's difficulty accessing sports and other leisure activities, Ms. Ferber recommended a continuation of one hour per week of recreational therapy.
Although the District presented the testimony of recreational therapist Katheryn Hoar to rebut Ms. Ferber's testimony, Ms. Hoar does not know Petitioner personally and has never formally assessed Petitioner. During her testimony, Ms. Hoar stated numerous times that she was unable to definitively determine whether Petitioner requires recreational therapy or not without first assessing him. Thus, Ms. Hoar presented no direct testimony to meaningfully dispute Ms. Ferber's testimony that Petitioner requires such services.
Therefore, the Hearing Officer concludes that Petitioner requires one hour per week of recreational therapy to prepare Petitioner for "optimum independent participation in leisure activities." However, the Hearing Officer denies Petitioner's request for the continued therapy to be provided by Ms. Ferber. According to California Education Code Section 56505.2, a hearing officer may not render a decision that results in a service for an individual with exceptional needs provided by a nonpublic agency if that agency has not been certified pursuant to section 56366.1. At hearing Ms. Ferber testified that she has not been certified as a nonpublic agency. Accordingly, the Hearing Officer cannot order a continuation of her services.
****
In conclusion, it was determined above that Petitioner requires two hours per week of combined speech and language services and social skills services from Anita Boxer, and one hour per week of recreational therapy services. Although Petitioner requested that his recreational therapy be provided by Ms. Ferber, Ms. Ferber is not a certified nonpublic agency and California Education Code Section 56505.2 prohibits the rendering of a decision that results in the provision of services by non-certified nonpublic agencies.
ORDER
1 The District is ordered to continue to provide Petitioner speech and language and social skills training from Anita Boxer for the remainder of the 2002-2003 school year. If Ms. Boxer is unable to continue to provide Petitioner his services, the District must replace those services with comparable services. In such an event, the District may choose another
provider of services.
2. For the remainder of the 2002-2003 school year, the District is ordered to provide Petitioner one hour per week of recreational therapy services to teach him social skills necessary to engage in leisure activities. The District is not required to utilize the services of Ms. Cynthia Ferber and may choose the provider of services.
3. All of Petitioner's other requests for relief are denied.
PREVAILING PARTY ON EACH ISSUE
Pursuant to Education Code § 56507(d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. The following findings are made in accordance with this statute:
For the 2002-2003 school year, does Petitioner require the following related services to benefit from his education:
a. Two hours per week of combined speech and language therapy and social skills
training from Anita Boxer,
-The Petitioner prevailed on this issue.
b. One hour per week of recreational therapy from Cynthia Ferber?
-The Petitioner prevailed on this issue to the extent that recreation therapy
services were ordered to be provided by the District.
― Orbit (Orbit), Friday, 16 April 2004 02:04 (twenty years ago) link