Counsel for Student/Parent: Richard J. Landau, Esq., Dykema Gossett

Counsel for Northville Public Schools: Thomas H. Schwarze, Esq., and Robert A. Lusk, Esq., Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C., Beverly Hall Burns, Esq., of Counsel, Miller, Canfield, Paddock & Stone

Counsel for Wayne-Westland Public Schools: Stuart Slatkin, Esq., and Russell S. Slatkin, Esq., Collins, Blaha & Slatkin

Counsel for Intervenor, Michigan Protection and Advocacy Service: Deborah A. Mattison, Esq.

Local Hearing Officer: Lynwood E. Beekman

Background

[ ], born October 9, 1974, is now 15 years old. Shortly after he was born, he was diagnosed as suffering from various severe impairments, most notably, diffuse brain damage. Since approximately one year of age, he has engaged in self-injurious behavior (SIB) of several types. Currently, of greatest concern is that, left unrestrained, he will hit his head with his right hand in excess of 100 times per minute. His current mental capabilities approximate those of a two-year-old person. (P Ex 45, V-2, pp 53, 54) (Ex 4 attachment A at p 2). [FN1]

At the IEPC here appealed, held on October 17, 1989, [ ] was determined to be a "handicapped person" within the meaning of R 340.1702 and specifically identified as being "severely multiply impaired" and "emotionally impaired" within the meaning of R 340.1714 and 1706, respectively. The IEPC placement included his being in a dual diagnosed (SXI/EI) classroom, as well as speech and language services, nursing services, occupational therapy, and physical therapy. (P Ex 45.) Inasmuch as these programs and services were basically a continuation of those provided in the last, uncontested IEPC held on July 11, 1989, he remains in this placement pending this appeal, subject to such modifications as have been agreed upon between the parties.

On the same day as the IEPC, [ ]'s mother, SP, filed a request for hearing, noting it was prompted by the failure of the IEPC to include in its plan utilization of the Self-Injurious Behavior Inhibiting System (SIBIS). (P Ex 40- 44.) On November 9, 1989, Ms. P filed a civil action in the United States District Court for the Eastern District of Michigan seeking both declaratory and injunctive relief which, among other things, would have required implementation of a behavior management program which utilized the SIBIS device. (P Ex 6.) At a hearing held before the Honorable Barbara K. Hackett on November 20, 1989, the case was dismissed without prejudice and Ms. P was instructed to exhaust her administrative remedies, namely, this hearing.

This Hearing Officer was mutually agreed upon by the parties pursuant to R 340.1724a. The hearing commenced on November 22, 1989, it being the understanding of this Hearing Officer that the court expected a full and complete record to be made as expeditiously as possible. The circumstances did not lend themselves to the usual prehearing conference. Rather, at the outset of the hearing, various procedural matters were immediately addressed. The Wayne-Westland School District, as the resident district, was held to be a party. (V-1, p 33.) The Wayne Intermediate School District decided not to pursue intervention. (V-2, pp 5-6.)

The Michigan Protection and Advocacy Service sought to intervene as a matter of right or, in the alternative, on a permissive basis. While both School Districts supported the intervention request, the parent opposed it. After considering the briefs and oral arguments of all parties, the motion to intervene was granted. Among the reasons for doing so, one of the more significant was that while both school districts and P&A opposed utilization of the SIBIS device, an anticipated factual issue was whether the Northville District had implemented all other reasonable interventions to address [ ]'s SIB. If so, and they were found ineffective, such might serve as a basis for considering the utilization of the SIBIS device. It was found the District was not in a position to effectively pursue questioning its own staff regarding that factual dispute.

Over the next four months, 29 sessions were held on the dates of November 22 and 28; December 6, 8, 11, 13, 14, 18, and 20, 1989. January 3, 5, 8, 9, 12, 15, 16, 18, 19, 23, and 24; February 1, 7, 8, 9, 12, and 20; and March 6, 19, and 20, 1990. Subject only to serious scheduling conflicts, availability of witnesses, preplanned vacations, holidays or deaths in the immediate families of parties or their counsel, sessions were scheduled practically each available date to expedite this matter as much as possible. In addition, although at times logistically awkward, by agreement of the parties, testimony was taken by telephone on frequent occasion to allow the matter to progress more rapidly. Notwithstanding these measures, this hearing took a long time to complete for at least two reasons. First and foremost, the issues presented are novel, complex, and controversial with potentially significant ramifications. Thus, the presentation of both arguments and evidence was, at times, emotional and always thorough. Second, this Hearing Officer allowed the parties great latitude when making relevancy determinations in an attempt to provide a full and complete record. On only two occasions, did counsel request that a separate record be made and both requests were granted. See HO Ex "Separate Record" and V-29, pp 93-94.

The parent proceeded first at the direction of the Court (V-1, p 38). During the presentation of her case, she called as witnesses the following persons: Dr. Ramesh Chheda, a pediatric neurologist in private practice; Dr. Thomas Linscheid, a behavioral psychologist with Ohio State University; William Hicks, vice president of engineering with Human Technologies Incorporated (manufacturer of the SIBIS); Dr. Gerald Goff, a behavioral psychologist in private practice; Barbara Misurack, a teacher with the Wayne County Intermediate School District; Cindy Warren, a teacher consultant with the Northville Public Schools; Mike Hazel, president of Human Technologies Incorporated; Mary Clare Steiner, a teacher with the Northville Public Shools; and [ ]'s mother.

The Northville Public Schools School District called as witnesses during the hearing: Arthur Gimpelson, a computer programmer with Human Technologies Incorporated; Margo Markowitz, a teacher with the Northville Public Schools; Kathy Aubuchon-Ruth, a teacher with the Northville Public Schools; Dr.Luanna Meyer, a special educator with Syracuse University; Dr. Aaron Smith, neuropsychologist with the University of Michigan; and Dr. Leonard Rezmierski, Executive Director of Special Education with Northville Public Schools. The Wayne-Westland Public Schools did not call any witnesses.

The Protection and Advocacy Service called as witnesses: Michael Reeber, a prior teacher consultant with the Wayne County Intermediate School District; Dr. Mark Durand, a psychologist with the State University of New York at Albany; Thelma Green, a teacher with the Wayne County Intermediate School District; and Elaine Alayne Williams, a certified social worker with the Judson Center.

With respect to exhibits, this Hearing Officer submitted five (HO Exs 1-5); the parent submitted 54 (P Exs 1-54); the Northville Public Schools submitted 22 (D Exs 1-22); the Wayne-Westland Public schools submitted none; and the Protection and Advocacy Service submitted 17 (PA Exs 1-17). Included within the exhibits are 11 photographs (P Exs 26-33, D Ex 8, and PA Exs 2 and 3) and three videotapes (P Exs 21, 22, and 42, composed of two cassettes).

After the hearing concluded on March 20, 1990, each of the parties submitted briefs which were received on April 23, 1990. The briefs were most helpful, particularly given the voluminous record.

Issues

As was noted above, inasmuch as there was no traditional prehearing conference to initially identify the issues in dispute, such was generally done at the outset of the hearing. (V-1, pp 92-130). However, given the circumstances surrounding the commencement of the hearing and the nature of the dispute, each of the parties during the course of the hearing was directed by this Hearing Officer at appropriate times to clarify their position. The issues to be determined and the parties' basic positions can be summarized as follows:

1. What is an appropriate IEP for [ ] which will meet his unique needs and the requirements of both the Education of the Handicapped Act (EHA) and Michigan's Mandatory Special Education Act (MMSEA)?

The parent contends that the October 17, 1989 IEPC, here on appeal, is not appropriate because if fails to include utilizing the SIBIS device as a component of a behavioral management program. She initially proposed implementation of P Ex 7.

At the commencement of its case, the Northville School District clarified its position, stating that the IEPC report on appeal did not appropriately address [ ]'s needs (V-15, p 195) and that it would propose a new plan. The proposal incorporated what the parties commonly referred to as the "educative" approach to address [ ]'s SIB. The Northville District objected to utilizing the SIBIS device on a variety of grounds, including that other reasonable alternative treatments had not been tried and found to be ineffective that its use violated Michigan's Corporal Punishment Act (MCL 380.1312) and its own "Guidelines for the Use of Behavioral Techniques" (P Ex 47). The Wayne-Westland District concurred in this position.

The Protection and Advocacy Service concurred with the Northville District that the IEPC on appeal was not appropriate and opposed the utilization of the SIBIS device for basically the same reasons as the District. However, it proposed a different approach to address [ ]'s needs, namely what was referred to as the "functional communication training" program.

In the end, both Districts and the Protection and Advocacy Service took the position that the educative and functional communication training approaches complemented each other and, therefore, should be implemented together without the SIBIS device. (V-24, pp 72-75, 88-89.) The parent agreed that the educative and functional communication approaches should be implemented but because she continues to believe these approaches will not sufficiently address [ ]'s SIB so as to allow him to achieve his maximum potential, she continues to contend that the SIBIS device must be implemented at the same time. (V-29, pp 72-77.) The Districts and the Protection and Advocacy Service, in addition to their previously noted reasons for objecting to the utilization of the SIBIS device, contend for both practical as well as theoretical reasons it cannot be implemented concurrently with the educative and functional communication training approaches.

2. Does Michigan's Corporal Punishment Act (MCL 380.1312) prohibit utilization of the SIBIS device in this state, considering, among other things, the implications, if any, of EHA and MMSEA?

Both Districts and the Protection and Advocacy Service contend the answer is yes. The parent contends the answer is no.

3. Do the Northville School District's "Guidelines for the Use of Behavioral Techniques" (P Ex 47) prohibit utilization of the SIBIS device in this state, considering, among other things, the implications, if any, of EHA and MMSEA?

Both Districts and the Protection and Advocacy Service contend the answer is yes. The parent contends the answer is no.

4. If the SIBIS device is utilized as a component of a student's behavior management program, does it constitute a "related service" within the meaning of EHA, MMSEA, or both, and, if so, must it be provided at no cost to the parent?

The parent contends the answer to both questions is yes. The Districts did not directly address these issues and the Protection and Advocacy Service solely answered the first question no.

In determining these issues, both the parties and this Hearing Officer agreed that he did not have jurisdiction to determine issues involving constitutional questions or alleged violations of the Vocational Rehabilitation Act of 1973, as amended (and its regulations, commonly known as the "504 Regulations"), or Michigan's Handicappers Civil Rights Act (MCL 37.1401 et seq.). However, it was agreed that the parties would consider the ramifications of such laws in their arguments and this Hearing Officer should, in arriving at his decision, attempt to achieve a result which would hopefully be consistent with all applicable legal requirements. Albeit difficult for all under the circumstances, the effort has been made.

During the course of the hearing, this Hearing Officer was called upon to address innumerable other procedural issues which arose. Among the more significant was the ruling that a hearing officer in this type of proceeding had no jurisdiction to consider questions relating to [ ]'s interim placement during the pendency of this proceeding. (V-5, p 47.) However, this Hearing Officer forcefully encouraged and attempted to assist the parties in addressing perceived problems regarding [ ]'s interim placement. Additionally, during the course of this proceeding, the parent commenced a new civil action in the United States District Court for the Eastern District of Michigan renewing her request for injunctive relief and at that time requested this Hearing Officer to stay this proceeding. The request was denied. (V-5, pp 52-55.)

Finally, it should be noted that the parties do not dispute [ ] is a "handicapped person" within the meaning of R 340.1702 and, more specifically, is eligible for special education programs and services, being both "severely multiply impaired" and "emotionally impaired" within the meaning of R 340.1714 and 706, respectively. Nor did any party dispute the IEPC's determinations that [ ]'s needs require the provision of speech and language therapy, occupational therapy, physical therapy, and school nursing services.

Findings of Fact

After considering all of the evidence in this matter, which is voluminous, even though only small portions of it are cited, and the briefs of all parties, the findings of fact of this Hearing Officer are as follows:

1. [ ] is a "handicapped person" within the meaning of R 340.1702 and "severely multiply impaired" and "emotionally impaired" within the meaning of R 340.1714 and 1706, respectively. (P Ex 45.)

2. [ ] is 15 years of age, having been born on October 9, 1974. (P Ex 45.) Shortly after birth he was diagnosed as having diffuse brain damage, a large portion of the right side of his brain being gone (V-2, p 54; V-8, pp 139-151; V-19, pp 23-53). He suffers from cerebral palsy and epilepsy, is subject to seizures, has practically no vision in his left eye, has a mild to moderate hearing loss, and a heart defect. (Chheda, pp 10 and 50; V-2, p 63; PA Ex 7; V- 10, p 120; V-13, p 139; PP Ex 37; V-19, pp 283-284). In addition, in the last four years [ ] has three times had surgery on his left leg, as a result of which he wears a brace on the leg and is often transported and restrained in a wheelchair given his problems with ambulation (V-10, pp 20-23; V-6a, pp 96-97; V-11, p 16).

Since approximately one year of age [ ] has been engaging in various forms of SIB (V-2, pp 53-54). His current repertoire includes hitting his right hand (usually fist) to the right side of his head; scratching and pinching himself; hitting his limbs and body with his hands and against other objects; hitting his head against other objects such as a table top or his wheelchair; and banging his legs together. The last "baseline" data collected on [ ] when he was oserved without restraint hitting his right hand or fist to the right side of his head reflected a rate of SIB of approximately 110 hits per minute. It appears over the past few years both the rate and intensity of such blows may be increasing. In addition, [ ] engages in agression and noncompliant behaviors. P Ex 4, attachment A; D Ex 12 at pp 1-3; V-6b, pp 141-143; V-14, p 73; V-15, pp 64-67; V-7, pp 131-136, V-23, pp 189-191; V-17, pp 10-29 and V-6, pp 68-75; V-23, pp 23-39.

Attempting to assess the reasons for such behaviors is complicated by the fact that it may be multimotivated in one environment yet diversely motivated in a different environment. [ ]'s SIB is thought to be motivated by a number of different factors including to gain attention from others, to escape unpleasant situations or avoid demands placed upon him, to provide a means of sensory stipulation and gain access to tangible reinforcers. Other reasons for SIB on occasion, e.g. Lesch-Nyhan disease and allergies, have been ruled out in [ ]'s case. V-2, pp 59-60; V-5, p 23-39; V-6a, pp 70-74; V-6b, pp 225-226; V-10, pp 127-128; V-14, p 39; PA Ex 11 at p 11 and PA Ex 16.

Currently to protect himself from his SIB [ ] wears a helmet with a plastic face guard which he has learned to remove. He is tied to his wheelchair and at night in bed both arms must be restrained. P Ex 33, V-10, pp 33-35; P Ex 42; V- 16, p 222; V-17, p 81; V-11, pp 210-211. Regrettably, [ ] has become very resourceful in defeating restraints. Accordingly, unless his blows are blocked there is a clear risk of him injuring himself by among other actions, slamming his face guard down on a table top or flipping off his helmet and face guard and hitting himself with his right hand, to name but two. V-6b, pp 144-150, 294-301; V-15, pp 36-37; P Ex 43; V-15, pp 52-53; V-17, pp 61-63 and 69-71. Given that [ ] has usable vision only in his right eye and the potential long- term consequences of continued blows permanently impairing his remaining cognitive abilities, the risk is significant if SIB is allowed to occur. Chheda pp 15-16 and 75-75.

Assessing [ ]'s current or potential capabilities is difficult. However, the most recent evaluations reflect his functioning with regard to daily living skills being in the one to two-year range, in the socialization domain less than one year, and in the communication domain expressively approximately one year and receptively approximately at the two-year level (PA Ex 11). Cindy Warren, a teacher consultant who has worked with him over the last few years, has not been able to determine any educational area in which [ ] has made progress (V-6b, p 167).

3. Special education programming for [ ] commenced in the 1977-78 school year. A substantial portion of the record in this matter relates to the development, implementation, documentation and success, or lack thereof, of various approaches, treatments, strategies or plans to address [ ]'s various needs, but primarily his SIB over the intervening 12 years. Examples of such would include holding objects such as a truck in his hand (V-2, pp 56-57, 64- 65), padding his right hand (P Ex 27, V-2, p 57), wearing a soft leather helmet (V-2, pp 57-58), wearing a football-type of helmet (V-2, pp 60-61), a Pringles can on his arm to limit his elbow movement (V-24, p 137; P Ex 28 and 37), an arm brace (V-10, pp 58-59 and V-26, pp 28 and 35), activities which were incompatible with his SIB (V-6a, p 40), certain functional skills of a housekeeping nature (V-26, p 55), greater mobility (V-26, pp 30 and 55), massage (V-26, pp 37-38), additional restraints while in the wheelchair (V-11, p 167), protective padding practically over his entire body so his SIB could be ignored (V-11, pp 173-174), differential reinforcement of appropriate behaviors (V-6, p 103), reinforcement with attention (V-6, pp 100-101), reinforcement of behaviors incompatible with his SIB (V-6a, pp 86-87), blocking, redirection and overcorrection (V-15, p 212), touching staff (V-6, pp 216-217), social time-out (P Ex 15), water mist (V-6a, pp 124-125 and P Ex 42), certain functional skills in vocational areas (V-11, pp 248-250), a Wolfe Board as an augmentive communication device (V-17, p 117), a wide range of reinforcers (V-16, p 215), reduction and gradual guidance (V-15, pp 69-73), and no doubt this list is not exhaustive. During this lengthy period there have been several times when [ ]'s restraints have been faded and his SIB was reduced or was not exhibited at all. (V-2, p 59; V-6a, pp 30-31; V-10, pp 57- 59; V-10, pp 59 and 141; V-11, pp 93-94; V-26, pp 37-40 and D Ex 9).

In the spring of 1989 the district's staff had run out of intervention options in an attempt to reduce [ ]'s SIB, as had Dr. Gerald Goff, a behavioral psychologist in private practice who had been consulting with the district at the request of the parent (V-10, pp 73-74; V-14, pp 60-62). From that point forward district staff merely continued to utilize "behavioral guidelines," there being no systematic plan to address [ ]'s SIB. Cindy Warren even noted the IEPC here on appeal probably would not reduce his SIB (V-14, pp 144, 145, 149-150; V-16, pp 224-225; P Ex 16, 17, 18 and 23).

Understandably, interventions to address [ ]'s SIB have been the primary focus of his programming given the extent to which his SIB interferes with his ability to learn (V-16, p 125; V-26, pp 28 and 35; PA Ex 11; D Ex 12). Over the last several years [ ]'s educational activities have primarily included a variety of routine, age inappropriate, nonfunctional tasks which he for the most part has mastered, some of them possibly some time ago. They include sorting colors and shapes, identifying pictures, completing puzzles, and working with peg boards. It is a distinct possibility that the nature of these activities may have contributed to [ ]'s use of SIB. (V-15, pp 74-99 and 242-247; V-16, pp 7-27; V-17, p 127; V-18, pp 46-48 and 75-80; V-24, p 7; PA Ex 11 at pp 6-7, D Ex 12). Further, it is noteworthy that the collective efforts over the years in splintered attempts to improve [ ]'s ability to communicate have for the most part not been at all effective, possibly due to what would appear to be the lack of any focused approach or program. He today basically has no means to effectively communicate. (V-7, pp 64-167; V-15, pp 17, 128, 129, 162, 164; V-16, pp 11-14, 59, 96, 97, 101; V-17, pp 49-50, 137-138, 195- 197; V-24, pp 12-13, 21, 37; A Ex 11, D Ex 12).

4. In an effort to explore and consider all options which might address [ ]'s SIB his mother, upon advice of physicians, has tried various medications. It is believed this option has now been exhausted. (Chheda, p 13; V-6a, pp 215-216) A frontal lobotomy has also been considered but is not being pursued. (Chheda, p 14; V-6a, pp 215-216; V-10, p 69; P Ex 37) In late 1989 [ ]'s mother learned of the SIBIS device through news accounts. (V-10, pp 85-86)

The device consists of a headband with straps crossing over the top of the head with an impact sensor. The sensitivity of the sensor can be adjusted to differentiate between the forcefulness of different types of contact to the head such as a hard blow versus a scratch. This portion of the device can be concealed, such as under a baseball cap. An electrode, activated by a signal transmitted by the impact sensor, is placed either on the arm or upper thigh held by a Velcro strap. If a person wearing the device hits his or her head with sufficient force to activate the sensor given its setting, a 3.5 miliampere electrical current at 85 volts is generated for 0.2 seconds. As currently manufactured, the intensity of the electrical stimulation or shock cannot be adjusted. (V-2, pp 166-179)

The Federal Drug Administration (FDA) has "registered" the device as a Class II Medical Device. While such registration does not denote official FDA approval of the device, it does allow it to be marketed. Given the procedures utilized by FDA to register this device, it is found that considerations regarding its safety and effectiveness must be made on an individual basis given current experience and research. (Linscheid, 18; V-2, pp 179-180; V-4, p 75; D Ex 6).

Ms. [ ] contacted Dr. Ramesh Chheda who wrote a prescription (P Ex 34) to obtain the device from its manufacturer, Human Technologies, Inc. On September 26, 189, Dr. Chheda briefly tried the device on [ ] (Chheda, p 22 and 52). On September 27 and 28, 1989, Ms. [ ] together with representatives of the Northville Public Schools accompanied [ ] to an evaluation session of the device's effectiveness conducted at Children's Hospital at Ohio State University under the supervision of Dr. Thomas R. Linscheid (Linscheid, p 29; P Ex 4 and 21). Sessions were conducted with and without the SIBIS device being activated. When it was not activated and [ ] was unrestrained his SIB ranged from 109 to 124 blows to the head per minute. When activated during 24 ten- minute sessions, [ ]'s SIB ranged from approximately one blow per minute to 12 blows per minute, never exceeding three blows per minute except for one session. (Linscheid, pp 29-35; P Ex 4).

Viewing the results of the evaluation favorably, Ms. [ ] discussed using the SIBIS device as part of [ ]'s school program with Dr. Linscheid and district staff. Thereafter they developed a written program which included its use (P Ex 7; V-2, pp 145-147; V-10, pp 102-103).

The review process for behavior modification programs at the Northville Public Schools is for the most part set forth in the "Guidelines for the Use of Behavioral Techniques." It is a multiple level process involving a review of the proposed program by the school principal, the school psychologist, a Peer Review Committee (composed of two psychologists and a teacher from outside the district), the parent (who must consent), and a "Behavior Modification Review Committee" (commonly referred to as a human rights committee). Only if the plan is approved by the Behavior Modification Review Committee is it submitted to an IEPC for its consideration. (P Ex 47.)

Here the program proposed by the parent (P Ex 7) proceeded through the process and was approved at each step until it reached the Behavior Modification Review Committee. The committee members decided that they would have approved the plan proposed by the parent but for it conflicting with the provisions of Michigan's Corporal Punishment Act (MCL 380.1312) and the district's own "Guidelines." Significant in this regard is that at each step, including the Behavior Modification Review Committee, what the participants were being asked to "approve" varied and the information upon which they had to base their action was limited. (V-6a, pp 19-32, 77-78 and 87-89; V-10, pp 104- 108, 109; V-22, pp 7-17 and 45-48; P Ex 19, 22, 39; XXII, pp 19-42 and 48-54; P Ex 9).

On October 17, 1989, an IEPC was held but since the Review Committee had not approved the SIBIS plan, it was not presented (V-6a, p 67). The IEPC issued its report (P Ex 45) and Ms. [ ] immediately appealed, requesting a due process hearing (P Ex 44).

5. That the SIBIS device is "experimental" and in its "infancy" is not disputed even by those who propose its use. (Chheda, pp 27, 70; V-6b, p 291.) In addition, there is no dispute that current studies regarding its effectiveness are limited (Exhibits 35 and 54). And, all seem to agree that more research should be done regarding the device with respect to its potential psychological and neurological effects, whether an electrical stimulation of lower intensity would be effective, whether its use increases otherSIB, the ability to fade the device, whether the resulting behavioral effects can be generalized and whether persons would habituate to its use, to name but a few. (V-2, pp 124-125; V-3, pp 82-83, 125, 158-159, 180-181, 189-190; V-4, p 88; V- 6, p 287-291; V-13, pp 62-63 and P Ex 5.)

The device has several safety features, protecting the person who uses it from receiving a more intense electrical stimulation than intended (Linscheid, pp 19-21; V-2, pp 168-179). While there have been a few mechanical problems with the devices, their nature and number do not appear to be at this juncture significant or problematic (P Ex 53). Still it must be recognized that the device cannot be worn in water, probably not when sleeping and when there is a likelihood of jostling resulting in false positives (i.e., administration of an electrical stimulation due to the sensor being set off by other than SIB). False negatives (i.e., SIB without the sensor triggering an electrical stimulation) can also occur where the person learns to "defeat" the device. (V- 1, pp 65-66; V-2 p 128-131; V-3, p 168-170; V-4, p 84; V-4, p 184; V-6, pp 6- 66; V-8, p 115; V-23, pp 100-107.)

Several potential disadvantages and risks in utilizing the SIBIS device on [ ] are present to one degree or another, including he will probably still engage in some potentially harmful SIB, he will need to probably continue to wear some protective equipment, the device will only address head hits, not his other SIB, it may increase other SIB, it may never be faded, he may habituate to its use, it may result in various adverse side effects of a behavioral nature including aggression, crying and anger, it may unduly restrict his learning and other socializing activities, the electrical stimulations may damage his nervous system and cause further damage to his brain, its effects may not be generalized, its electrical stimulations may hinder his learning, he may learn to remove it, it may result in an intermittent punishment schedule given the rate of [ ]'s SIB, and it is probably perceived by [ ] as painful. (Articles B through D attached to Northville District's brief; P Ex 4, attachment A; D Ex 12; PA Ex 11, pp 9-10; P Ex 7; V-19 pp 70, 77, 80-81, 85, 206, 215-216, 239-240, 271-274, 340-342; V-18, pp 182-184, 192-193; V-23, pp 71, 84-90, 94, 125, 177-198, 229-230, 232; V-3, pp 288-300; V-14, p 54; V-22, p 45; V-9, pp 239-243; V-8, pp 58, 67-73, 76-77, 121-122, 157-158, 280; V-14 pp 109-112, 172; V-15, pp 14, 64-68, 124-126, 201-203; V-6a, pp 29; V-13, p 23; V- 3, pp 162-166; V-21, p 102; V-20, pp 73-74, 97-98, 102, 152-153).

6. An alternative approach proposed by both school districts and the Protection and Advocacy Service were the complementary programs referred to during the course of the hearing as educative and functional communications training. This combined approach included an overall educational and behavioral program which would address all of [ ]'s needs. (D Ex 12; PA Ex 11.) The educative approach described by Dr. Luanna Meyer has four basic components which are as follows: a. Short-term prevention--while other components are being implemented, [ ] would be prevented from injuring himself by utilizing protective equipment, training staff in blocking and redirection, removing events that trigger [ ]'s SIB, and fading his restraints in conjunction with functional communication training. b. Ecological or environmental changes-- based on the premise that many of [ ]'s behavioral problems are related to his desire to escape from repetitive tabletop tasks which he has mastered and are neither functional nor age appropriate, a functional, age appropriate, community based curriculum would be utilized, with attention also being paid to increasing [ ]'s mobility, physical comfort, and integration with nonhandicapped students. c. Teaching adaptive alternatives--in addition to the curriculum changes noted above, an attempt would be made to develop a reliable method whereby [ ] could communicate his needs by use of picture cards, a Wolfe Board or otherwise, which would be available to him at all times. d. Long-term prevention--consideration and planning to prepare [ ] for his life after school, including possibly supported employment and living in a semi-independent setting. The functional communication training approach described by Dr. Mark Durand is based upon an assessment of why a person is engaging in particular maladaptive behaviors. A behavior program is then designed to teach the person other appropriate methods for communicating his or her needs which may be verbal or may involve the use of pictures, signs or other symbols. Additionally, the Protection and Advocacy Service stressed an "out of school" component to [ ]'s program to assure consistency in dealing with [ ]'s maladaptive behaviors while at home and in the community. This program would include not only parent counseling but also training the parent with regard to utilizing those aspects of [ ]'s school program which are adaptable and appropriate in the home and community settings. (PA Ex 11; V-24, pp 81-82.)

7. It is apparent from the positions taken by various professional and other organizations that the use of contingent electric shock as a behavior management intervention by use of the SIBIS device or otherwise is highly controversial. (P Ex 35, 36, 51 and 52; D Ex 18; PA Ex 4.) All of the experts who testified in this proceeding acknowledged this fact. But significantly, none of them also, after having preliminarily assessed Terry and his situation, would categorically rule out the possibility of ever utilizing the SIBIS device with [ ] if generally accepted professional standards/guidelines for the use of contingent electric shock and other aversive techniques were met in doing so, most notably all other reasonable, appropriate interventions had been tried and failed. Some of them candidly stated that they had not, and did not believe they would, confront a situation where contingent electric shock would need to be utilized since their approaches to those of others, they believed, would be successful. They further indicated that while they would not professionally be willing to supervise such an intervention, they knew of other respected professionals in their field who could and would.

There appears to be no dispute with regard to the generally accepted professional standards/guidelines for the use of contingent electric shock, namely that it should be used only after all other reasonable appropriate interventions have been tried and failed; that to work it should produce a marked decrease in the rate of SIB; its use should be based upon a comprehensive functional analysis of the subject's behavior; and, during its utilization, possible behavioral and other side effects should be closely monitored. Even the parent's expert witness supporting use of the SIBIS device referred to it as "default" technology to be used only as a "last resort" which was basically in agreement with the views of the device's manufacturer. (V-3, pp 115-116, 194-195; V-4, pp 91-94; V-18, pp 170-176; PA Ex 11, pp 8-9; P Ex 35, 36, 51, 52.)

8. As set forth above, a wide variety of interventions have been tried with [ ] over the years. There is no evidence which in any way supports or even suggests that the staff of the districts and other consultants who have provided services to [ ] over the years have acted other than in good faith. It clearly appears they fully utilized the extent of knowledge and resources available to them at the time in attempting to design, document and implement interventions to address [ ]'s SIB. But, notwithstanding these efforts, all agree that with the exception of a few periods of time ranging from a few weeks to a few months when [ ]'s SIB was reduced or did not exhibit itself, overall the interventions have not been effective. The resulting key question is whether, putting aside labels, the primary components of the educative and functional communication training approaches been utilized, and if not, do they constitute a reasonably appropriate intervention which should be tried in [ ]'s situation?

While the record reflects that a few aspects of the educative and functional communication training approaches have been utilized on occasion such as the Wolfe Board, increasing [ ]'s mobility, greater stress on functional tasks, and picture cards, the record reflects their use was sporadic, for the most part not part of any comprehensive behavioral management program (let alone one incorporating most of the other components of these approaches) and accordingly lacked focus. Further, the efforts were often designed or implemented by staff who had insufficient training and were not documented, or if so, in an inconclusive manner. (V-15, pp 127-128; V-22, pp 266-270; V-24, pp 47, 143-146; V-26, pp 31-39; D Ex 9.) Therefore, the primary components of neither the educative nor functional communication training approaches have been tried with [ ].

The combined educative and functional communication training approach appears to have a reasonable chance of being effective in addressing [ ]'s SIB, not to mention his other needs. Granted, the research which has been conducted on either approach in addressing SIB is limited and possibly subject to challenge by other professionals in one way or another regarding the conclusions drawn and why. (Such is also true, as noted below, with regard to the utilization of the SIBIS device.) But to this Hearing Officer the status of this research is not surprising since special educators, behavioral psychologists and others are continuing to grope for new or modified old approaches which might more effectively address the complicated and difficult problems presented by the SIB of persons such as [ ]. Neither EHA, MMSEA nor any other law requires that there be empirical studies or other research in support of a particular approach proposed to address a handicapped student's educational needs. Here there is some research to support these approaches, as well as substantial credible testimony by experts who are reasonably familiar with [ ]'s unique situation. Moreover, the history of what has been tried with [ ], both in terms of what has worked and not worked, provides some small indications that this combined approach might work. (D Ex 12; Pa Ex 11; V-22, pp 266-270; V-24, pp 143, 146; V-26, pp 31-39.)

9. With regard to utilization of the SIBIS device, as noted immediately above, the research regarding its effectiveness is also limited and subject to challenge. But like the other approaches, a credible expert, Dr. Linscheid, provided substantial testimony regarding its possible effectiveness in addressing SIB. (V-18, pp 174-175; V-7, pp 272, 302-304; V-3, pp 25-46; V-8, pp 182-183; V-21, pp 143, 298; P Ex 5, 36.)

The effectiveness of the device in reducing [ ]'s SIB as shown by the trials conducted by Dr. Linscheid has been subject to widely divergent interpretations (P Ex A; PA Ex 11). Further, as set forth above in item 5, much research has yet to be done regarding the SIBIS and many potential risks and disadvantages accompany its use. Notwithstanding, the SIBIS constitutes another potential intervention to address [ ]'s SIB. Questions regarding its possible effectiveness, disadvantages, risks and reasonableness, if necessary, must be considered and weighed by Ms. [ ] and district staff in light of other then available remaining options.

10. Granted, in applying the standard/guideline that all other reasonable, appropriate interventions must be tried and fail, other factors regarding the alternative more intrusive interventions must also be considered. For example the relative likelihood of their effectiveness, the anticipated time to obtain such and the attendant implications for the student, including risk of harm (P Ex 52, pp 113-114; P Ex 36, p 3; P Ex 51). Here testimony reflected that the expected outcome of the educative approach would be to reduce [ ]'s SIB by 50% within a month, and with regard to the functional communication training approach, a 75%-80% reduction in SIB was hoped for in two months, with a 90%-95% reduction within six months (V-21, pp 15-21; V-25, pp 177, 178). With both approaches restraints and other preventative measures would be necessary on an interim basis to protect [ ], but it was expected they could be faded within a year (V-18, p 114; V-25, pp 179-180). Weighing these factors together with the uncertain effectiveness of utilizing the SIBIS device and the attendant risks in doing so, it is not found that an exception should be made here to the basic standard/guideline of trying all other reasonable, appropriate interventions such as the educative and functional training communication approaches before the SIBIS device is utilized. But, this factor could change if these approaches clearly show signs of being ineffective, short-term measures taken to prevent [ ] from injuring himself fail, or both. Thus, the implementation of these approaches will need to be closely monitored for this as well as other reasons.

Conclusions of Law

Based upon the above findings of fact and again considering the entire record in this matter, as well as the briefs of all parties, this Hearing Officer has made the following conclusions of law:

1. [ ] is a "handicapped person" within the meaning of R340.1702 and he is "severely multiply impaired" and "emotionally impaired" within the meaning of R340-1714 and 1706, respectively.

2. Under the Education of the Handicapped Act (EHA) a district is required to provide a "free appropriate public education" (FAPE). 20 USC 14, et seq.; 34 CFR 300.300. A FAPE is further defined as being special education or related services which, among other things, "meet the standards of the state educational agency, including the requirements of this part" and "are provided in conformity with an individualized educational program which meets the requirements under [34 CFR 300.340-349]." 34 CFR 300.4.

In Board of Education v. Rowley, EHLR 553:656 (US SCt 1982) it was held that the FAPE EHA requires provides for every handicapped student access to instruction or related services designed to meet their unique needs so as "to permit the child to benefit from instruction." Michigan has established a higher substantive standard, namely programming which must be "designed to develop the student's maximum potential" MCL 380.1751; R340.1701(b)(E). It is this latter, higher standard which applies here since as a "state standard" it is incorporated into the federal law as an element of a FAPE. 34 CFR 300.4(b); Woolcott v. Grand Traverse Bay ISD, EHLR 556:183 (Mich App 1987); Barwacz v. Michigan Department of Education, EHLR 559:346 (WD Mich 1987).

2. It is noteworthy that the obligation to provide special education programs and services in Michigan rests with the local district in which the student resides. It has the option with respect to each needed program and service to either operate it or contract for it (MCL 380.1751). Here, [ ]'s resident district is the Wayne-Westland School District and it has contracted with the Northville School District to provide [ ]'s program. If the Northville Public Schools program and services do not address [ ] needs and an agreement between the districts to modify the program to do so cannot be achieved, then the Wayne-Westland School District will be required to either operate [ ]'s program and services or contract with another appropriate entity to do so.

3. The U.S. Supreme Court in Rowley, supra, emphasized the critical importance of the individual educational planning committee (IEPC) meeting with respect to choosing the educational programs and services most suitable to meet the student's needs, highlighting the necessary cooperation between the parent and district staff in that process. Such served as the basis for that court's admonition to trial courts in handling suits brought under EHA to merely check on whether IEP procedures had been followed and determine whether the IEP was reasonably calculated to enable the student to receive educational benefits.

This Hearing Officer also typically pays some deference to the determinations of an IEPC. But the situation presented here is far from typical. All parties agree that the IEPC on appeal does not address [ ]'s needs. Further, while the behavior management program which the parent proposes did pass through the Northville School District's process for reviewing behavior management plans, the responsibilities of the participants were at various stages limited, as was the information provided to them, at times intentionally in good faith, and at other times because the information was just not known at that time. Accordingly, no deference is given to the IEPC here on appeal (P Ex 45) nor the program proposed by the parent (P Ex 7) due to it having gone through the behavioral management plan process. In short, conclusions regarding appropriate programming will be made based solely upon the record in this matter and the results of those further procedural steps which are directed below.

The parent argues that the interventions proposed by the districts and the Protection and Advocacy Service must be rejected in that neither D Ex 12 nor PA Ex 11 meet EHA's requirements for an IEP. Such is true, but neither does the parent's proposal (P Ex 7). Further, the parent now seeks to combine the other approaches with her own. The argument is rejected for the reason that notwithstanding the current lack of any IEP meeting EHA requirements, the fundamental purpose of this particular proceeding has become to obtain one for [ ].

4. Based upon the above findings, the combination of the educative and functional communication training approaches proposed by the districts and the Protection and Advocacy Service is the basis for the development of the appropriate special education programs and services necessary at this time to meet [ ]'s unique needs and develop his maximum potential within the meaning of both EHA and MMSEA. While great emphasis in this proceeding has been focused on addressing [ ]'s SIB, and understandably so given its significant adverse effect upon his ability to learn, all parties acknowledged the importance of other aspects of [ ]'s programming. This conclusion regarding programming is primarily founded upon two principles.

First is the mandate of both EHA and MMSEA that special education programs and services be provided in the "least restrictive environment" (LRE). 34 CFR 300.550, et seq.; R340.1722. A strong preference in favor of implementation of the LRE concept was clearly recognized by our own Sixth Circuit Court of Appeals in Roncker v. Walter, EHLR 553:381 (CA 6, 1983), and further buttressed by the provisions of the Vocational Rehabilitation Act of 1973 and its regulations (34 CFR 104.34 (a)). Significant aspects of the combined educative and functional communication training approach are founded upon and implement the LRE requirement.

Second, not a part of the LRE mandate (as will be discussed further below) is the standard/guideline of behavioral management professionals that before an intrusive intervention such as contingent electric shock is utilized, all other reasonable, appropriate interventions should be tried and fail. Here it has been found such has not occurred with regard to the educative and functional communication training approaches and that the possible exception to application of the principle is not applicable at this time.

5. Recognizing the possibility that the combined educative and functional communication training approach may not be effective in addressing [ ]'s SIB or that while attempting to implement it, short-term measures to prevent [ ] from injuring himself are not successful and therefore other interventions, including utilization of the SIBIS device, may need to be considered, it is both appropriate and prudent to at this time address questions which have been presented regarding the possible utilization of the device.

EHA regulations define "related services" to mean those required "to assist the handicapped child to benefit from special education." 34 CFR 300.13(a). See also R340.1701(c). A long list of developmental, corrective and other supportive services is set forth in the regulations, including psychological services. 34 CFR 300.13(c)(8). While the comment to the regulation notes the list is not exhaustive, interestingly equipment is specifically mentioned only once with respect to transportation. 34 CFR 300.13(b)(13)(iii). Again, these requirements are buttressed by the regulations promulgated pursuant to the Vocational Rehabilitation Act of 1973, specifically 34 CFR 104.33(a) through (c).

The SIBIS device is unusual in that given its nature and purpose it can easily be viewed from different perspectives. In one way it can be viewed as a "medical device," not necessarily with the FDA meaning of the terms but just generically, similar possibly to a heart monitor, respirator or even a hearing aid. There can also be no doubt that it is a primary vehicle to implement a behavior management intervention as part of a behavioral management program requiring the involvement of district staff in its development and implementation on a day to day basis. Due to the practical necessity of the district having to provide these latter types of support services if the SIBIS device is determined appropriate to be utilized in the school setting, its use must be deemed a "related service" within the meaning of EHA and MMSEA. Services under these circumstances would clearly meet the related services tests set down in Irving Independent Sch Dist v. Tatro, EHLR 555:511 (US Sup Ct 1984 and McNair v. Oak Hills Local Sch Dist, EHLR 441:381 (6th Cir 1989).

If the device is used, is the cost of the equipment a responsibility of the district under EHA, MMSEA, or both? This is an extremely difficult question to answer given the nature of the SIBIS device, the extremely limited references in the regulations to either equipment or aids and the meager authority speaking to the issue generally. As noted above, the rule defining related services speaks to equipment but once and then only in relation to transportation. EHA rules on LRE which require the "use of supplementary aids and services" provide no further definition of the word "aids". 34 CFR 300.550(b)(2).

Shortly after the passage of the EHA regulations in 1978, the Bureau of Education for the Handicapped in the United States Department of Education issued a policy letter opining that individually prescribed devices such as glasses and hearing aids "are generally considered to be personal items, which are not required to be provided under [EHA]". Minsky, EHLR 211:19. There have also been rulings that while a district is not required to bear the expense of a student's medication, it is generally required as a related service to provide for its administration if necessary during the school day. See Palmyra Macdon Central Sch Dist, Case No. 11427, EHLR 507:137 (NY SRO 1985) and Berlin Brothers Valley (PA) Sch Dist, EHLR 353:124 (OCR 1988).

While one could interpret related services and the word "aids" in the LRE mandate as including the SIBIS device and probably eyeglasses, hearing aids, arm braces, and various prostheses as well, this Hearing Officer does not for the following reasons. First, the SIBIS device certainly has some attributes of eyeglasses and hearing aids in that it must be personally prescribed and fitted with respect to the sensitivity of the sensor (and possibly the intensity of the electrical stimulation). Further, it can be perceived as having a medical aspect akin to medication. Finally, as an outgrowth of possibly the policy letter issued early on noted above and the specific mention by the U.S. Supreme Court in Tatro, supra, that the parents there were not asking the district to provide the equipment needed for the service of clean intermittent catheterization, but only the services (see EHLR 555:511 at 516), this Hearing Officer takes "judicial notice" of the custom or practice which generally exists in the provision of special education programs and services that school districts do not bear the expense of eyeglasses, hearing aids, medications, or equipment necessary to perform related services such as CIC. Accordingly, I do not find the cost of the SIBIS device if utilized (which would be approximately $3,500.00) would be the responsibility of a district under EHA or MMSEA. [FN2]

6. Various arguments were raised by both districts and the Protection and Advocacy Service that utilization of the SIBIS device would violate various provisions of law or policy. This Hearing Officer does not believe such is true for the following reasons.

First, it is contended that its use would violate the LRE mandate. Quite frankly, given the requirement in that mandate that "supplementary aids" must be utilized if necessary, an argument could probably be propounded that to deny its use in certain circumstances might violate the LRE concept. But, this Hearing Officer finds that the LRE mandate was not intended to be applied to behavior management programs or their components. Granted, certain behavior management programs may, as was found to be appropriate here, include features which implement the LRE mandate. But the LRE mandate relates to the student's placement along a continuum of programs and services primarily focusing upon and requiring the handicapped student to be educated with nonhandicapped students to the fullest extent possible while addressing the handicapped student's needs. A student's behavior management program will often be one factor of many in considering the appropriate placement for a handicapped student in implementing LRE. But determinations regarding which behavioral management program is appropriate and its components must be primarily based upon the principles, standards and guidelines employed by behavioral psychologists and other behavioral specialists at the IEPC. Parallels to notions of "least restrictive alternatives" developed in the area of civil commitment, to the extent applicable in the educational setting, are embodied within the LRE mandate itself.

It is also contended that utilization of the SIBIS device violates Michigan's Corporal Punishment Act (CPA). MCL 380.1312. In short, it is contended the contingent electric shock is painful, constitutes punishment, and is therefore prohibited by the express provisions of the Act even if its application is allegedly motivated for treatment purposes. Reliance is placed upon Kate' School v. Dept of Health, 94 Cal App 3d 606: 156 Cal Rptr 529 (1979), in which various aversive behavior modification techniques (e.g., slappings, cool showers and withdrawal of food) violated various provisions of that state's regulations promulgated pursuant to its Community Care Facilities Act which prohibited, among other things, "corporal punishment." The term not being defined, the court referred to dictionary definitions and concluded that the label placed upon an act or the alleged motivation of the person performing the act was not determinative of whether the act constituted corporal punishment within the meaning of the regulation. Thus the Court found such acts prohibited given their infliction of pain on the body even though the motive was not evil and the act done with the intention of treating.

Unlike the California regulation, Michigan's CPA specifically defines the term "corporal punishment" as meaning: " . . .the deliberate infliction of physical pain by any means upon the whole or any part of a pupil's body as a penalty or punishment for a pupil's offense." MCL 380.1312(1). Focusing initially solely on the words "penalty or punishment" one can debate whether "punishment" as that term is used by the behavioral psychologist was intended to be included as these words are used in this statute. This Hearing Officer doubts that such is the case, particularly when the statute provides it must be "for a pupil's offense." In any event, to this Hearing Officer the plain and common meaning of these words is that they are intended to refer to a disciplinary situation, i.e., a misdemeanor or disobedience of the type which if gross or persistent could result in the student's suspension or expulsion under Section 311 of the School Code which immediately precedes the provision here in question. MCL 380.1311.

No "offense" within the meaning of that term as utilized in the definition of corporal punishment in the CPA has been committed by a student which results in he or she probably receiving physical pain from the shock administered. If somehow a student's SIB does constitute an "offense" within the meaning of CPA, then each time a student engaged in SIB and inflicted pain upon himself or herself, the act would be violated and volunteers and employees of districts would be subject to discipline for not having prevented its occurrence. It is difficult to believe this was the intent of the act. [FN3]

Next, it is contended that utilization of the device may violate 504 regulations in that the district would inflict pain upon [ ] where such acts would be prohibited against nonhandicapped students, thus offering him less protection than enjoyed by nonhandicapped students. On the other hand, the parent contends to bar the use of the device would violate the provisions of Michigan Handicappers' Civil Rights Act (HCRA) which prohibits discrimination against a student due to that student's need to use "adaptive devices or aids." MCL 37.1402. See also Littsey v. Wayne State University, 108 Mich App 406 (1981), lv denied 413 Mich 882 (1982).

This Hearing Officer recognizes he lacks jurisdiction to determine questions arising under either 504 regulations or the HCRA. But the parties agreed consideration should at least be given to the implications of such provisions when interpreting and applying EHA and MMSEA to the instant situation. Quite frankly, the vague and broad terms utilized to describe the discriminatory actions prohibited under 504 regulations, most notably 34 CFR 104.4(b), are extremely difficult to interpret and apply to a particular aspect of a handicapped student's IEP. Unlike practically all other programs and activities covered by these regulations, the educational programs and activities for handicapped students as set forth in that student's IEP have been designed to address their unique individual needs. In short, both EHA and even other 504 regulations (CFR 300.33) require that a discriminating program for each student be developed and implemented to meet the student's individual needs. To the extent utilization of the SIBIS device is otherwise legal and been found to be an appropriate part of a handicapped student's program, it cannot be envisioned it would be violative of 504 regulations. Further, it would appear to not provide the device under such circumstances would be violative of the HCRA.

The Northville District contends utilization of contingent electric shock is prohibited under the terms of its "Guidelines for the Use of Behavioral Techniques" (P Ex 47 at p 69). Other provisions of its guidelines arguably leave room to question whether the policy would prohibit use of the SIBIS device. See for example P Ex 47 at pp 10 and 69. Notwithstanding the provisions of the Guidelines, if utilization of the SIBIS device is determined to be a part of a student's FAPE, any district or state policy prohibiting such a program or service would be invalid given its conflict with the provisions of EHA unless deemed to be a "higher" state standard. See footnote 3 above. It is not believed a policy prohibiting an intervention otherwise legal and professionally acceptable under certain conditions is such a "higher" standard. Birmingham and Lamphere School Districts v Superintendent of Public Instruction, EHLR 554:318 (Mich App 1982). However, from a practical standpoint as was noted above the Northville Public Schools are not obligated to implement [ ]'s program. That is the ultimate responsibility of the Wayne- Westland School District and there is no evidence on the record of any policy it has in this regard.

Finally, it is contended that utilization of the SIBIS device is constitutionally prohibited on grounds that it is inhumane and violates rights of privacy, among others. Again as was noted above, this Hearing Officer recognizes he lacks jurisdiction to determine constitutional issues, but at the request of the parties would reaffirm that he believes the constitutional principles applicable to civil commitments are not applicable in the context of special education programming except to the extent embodied in LRE. As for the humaneness of the approach and the moral and value laden issues it encompasses, this Hearing Officer would personally find it difficult to believe that he could ever agree to the utilization of the SIBIS device upon one of his own children. But he has not travelled the path traversed by [ ] these last 15 years. If he had, and given the limited options which remain available to address [ ]'s SIB, he too might propose its use. The humanity/moral issue therefore is found to rest with the student (if he or she is capable of participating in the decision) and/or the parent/guardian.

Accordingly, if the SIBIS device is incorporated in an IEP, agreed upon by the parent/guardian (student, as the case may be) and district as being appropriate to meet the handicapped student's unique needs, its use is not legally prohibited within the State of Michigan. It must be reemphasized, however, that an essential threshold requirement for its utilization is that all other reasonable appropriate treatment interventions have been tried and failed. Given current and hopefully new approaches in the treatment of SIB, the occasions when its use need even be considered should be rare indeed.

Decision

Given the findings of fact and conclusions of law set forth above, and incorporated herein by reference, the decision of this Hearing Officer is as follows:

1. At the outset it must be stated that [ ] is a very loving, caring mother for [ ] who is extremely frustrated, with good cause. After years of public school efforts to address [ ]'s SIB, assisted at times by consultants provided by her, the efforts, notwithstanding the good faith of all involved, have been ineffective. The remaining options which she might pursue on [FS]'s behalf are few, each having substantial risks of one type or another. Regrettably, Ms. [ ] had to request utilization of the SIBIS device and pursue this proceeding before either of the districts involved in this matter took the initiative to investigate and assess other recent reasonable, appropriate interventions which might address [ ]'s SIB. It is recognized that even if such alternative interventions had been identified and proposed, Ms. [ ] might have opted to pursue seeking utilization of the SIBIS device. But possibly not, particularly if it would have occurred prior to last November. And, in the meantime, [ ] has lost valuable educational time and substantial resources, both time and financial, have been expended by all parties in pursuing this proceeding. If nothing else, this case must serve as a lesson to school districts, private practitioners and parents who as partners are attempting to develop programs to address the SIB of handicapped students that when known interventions are ineffective, immediate and widespread inquiry of possible alternative interventions is essential.

The development of educational programming for students with needs as difficult to address as [ ]'s is tough enough without attempting to do it as part of a litigation process. The development and implementation of a program for [ ] must move forward immediately--and in the view of this Hearing Officer, notwithstanding a possible appeal of this decision as will be addressed below.

2. With all due respect for both the difficulty of developing a program to meet [ ]'s needs and the rights of all parties in this proceeding, this Hearing Officer has not been at all impressed by the efforts put forward by the parties and their experts to expedite to the fullest extent possible such additional assessment of [ ]'s situation as is necessary and the development of an IEP including, most notably, a behavior management plan to address his SIB. Although lacking the jurisdiction to address the issue of interim relief directly, this Hearing Officer has strongly encouraged and attempted to facilitate such activities since February 15, 1990, without success. Given this recent history, the more long-range history of [ ]'s special education programming and the testimony of the expert witnesses relied upon by the districts and the Protection and Advocacy Service, an expedited and detailed order of action is warranted.

The experts stated that such additional assessments as might be necessary, as well as the development of a detailed IEP, including a behavior management plan to address [ ]'s SIB, could be accomplished within 30 calendar days. The Wayne- Westland School District is hereby directed to take these steps, or authorize the Northville Public Schools or other entities to do so on its behalf within 30 calendar days of the date of this decision (the parties already having been advised of this decision by telephone on May 9, 1990).

As is required by law, Ms. [ ] is to be a full participant in these activities. As is not required by law, but to some extent allowed, attorneys can participate in these activities. It is strongly suggested they do not except to the extent necessary at the end of the planning process to advise their respective clients on their legal rights in the event a dispute arises. This suggestion is based upon the premise that parents and educators cooperatively must assess a student's needs and develop an appropriate program and this can usually be accomplished most efficiently and satisfactorily if attorneys and the other trappings of litigation are removed from these activities to the fullest extent possible. Given the basis for the Protection and Advocacy Service's intervention in this matter, it is not intended they would be a participant in these activities. However, its counsel should be kept fully apprised as to the status of the activities and have access to any educational records and other information relating to them, most notably the eventual IEPC, given its continuing rights as a party in this proceeding.

The parties have debated the extent to which a comprehensive functional analysis and other diagnostic activities have been completed or must yet be done. This is appropriately a determination which the parties should make forthwith. With respect to the development of an IEPC, it is directed that it must include all of the components of the educative and functional communication training approaches recommended by both districts and the Protection and Advocacy Service as set forth in D Ex 12 and PA Ex 11, consistent with the amplifications and clarifications of such recommendations placed upon the record in this matter. In this regard the parties are cautioned to give particular emphasis to at least the following three areas: a. The short-term preventative measures which must be taken in an attempt to ensure that [ ] does not harm himself. In the view of this Hearing Officer, current measures are not sufficient given the nature of [ ]'s current program and the current skill level of district staff, notwithstanding their best efforts. b. It is imperative that the IEPC provide for data collection in order that it can be accurately determined, among other things, to what extent, if any, [ ] is attempting to engage in SIB and to what degree he is successful, as well as whether the combined approach is effective in reducing [ ]'s SIB given the criteria/standard for assessing effectiveness (in some contexts referred to as "stop criteria"). These criteria must be established using success rates and timelines consistent with the expert testimony regarding expectations. c. Counselling, training or both for Ms. [ ] to assure that she can attempt to deal consistently with [ ]'s maladaptive behaviors while he is at home and in the community, appreciating that adaptations will be necessary given the differences between the school, home and community settings.

If any problems arise during the course of the above 30-day period which any party has reasonable cause to believe may result in an IEPC not being completed by the required date, that party is to advise this Hearing Officer immediately and he will address the situation forthwith. Once an IEPC is developed, this Hearing Officer is to be provided a copy immediately. If any party disagrees with its terms, that party is to direct a letter to this Hearing Officer within seven (7) calendar days of the date of the IEPC (a copy being directed to every other party) specifically identifying each and every basis for objecting to the IEPC. This Hearing Officer will then immediately arrange a telephone conference call with counsel for all parties to assess the situation and, if necessary, hold a hearing on an expedited basis and thereafter render a decision to resolve the dispute. This Hearing Officer believes he has the authority to take this action as a matter of due process, and more specifically under the provisions of R340.1725e(1)(b), (c) and (e).

3. The IEPC required immediately above shall be implemented by the Wayne- Westland School District forthwith as required by law either by operating the program itself or contracting with the Northville Public Schools or some other appropriate entity. The IEPC shall remain in effect for a period not to exceed one calendar year, subject to the following conditions. It may be modified in any regard by agreement of the parties for it is recognized in all likelihood "fine tuning" and other changes will be necessary as with any program. Additionally, in furtherance of the purposes underlying Rule 25e(1)(b) and (c), if any party believes a "substantial change in circumstances" has occurred, it shall notify this Hearing Officer and all other parties in writing setting forth in detail the basis for such belief. Two such possible "circumstances" could be that a party believes, notwithstanding the short-term preventative measures being taken, [ ] is subject to unreasonable risk of harm due to his SIB or that the program has not proven effective given its results as compared with the criterion/standards originally established in the above IEPC to judge the same. Upon receipt of such a letter this Hearing Officer will assess the situation, considering, among other options, ruling that a substantial change in circumstances does not exist within the meaning of Rule 25e(1)(c), directing that an IEPC be immediately held or holding a hearing.

If, as the result of a "substantial change in circumstances" the programs and services required to address [ ]'s SIB have to be reconsidered, the decision of this Hearing Officer should not be understood to require that the SIBIS device be implemented at that point in time. However, if we know then nothing more than we know now with the exception that the combined educative and functional communication training approaches have not been effective, the options remaining to address [ ]'s SIB are extremely limited, and each involves significant risks and disadvantages. One of those options is utilization of the SIBIS device. [FN4]

4. This has been a most unusual proceeding in many ways, and this Hearing Officer believes a most unusual action is dictated. In the event any party appeals this decision to a state level review, this Hearing Officer clearly recognizes the authority and discretion vested in the court to allow that review to proceed or immediately review this matter and consider interim relief as well. However, given the protracted nature of this proceeding, the agreement of all parties that [ ]'s current special education programming is not effective in addressing his SIB or other needs, and the importance from both an educational and health standpoint that those needs be addressed just as soon as possible, this Hearing Officer would respectfully request that the court consider taking the following actions in the event of an appeal: a. Notwithstanding the right of any party to appeal this decision to a state level hearing officer pursuant to R340.1725, waive such requirement in order that the court might assume immediate jurisdiction to be in a position to consider the matters mentioned below. .b. As noted earlier in this decision, this proceeding has been extremely protracted due in part to the desire of this Hearing Officer to make a full and complete record, given the potential for an appeal. It would be this Hearing Officer's request that attempts by any party to submit additional evidence of any type would be closely scrutinized, given the wide latitude granted all parties in placing evidence on this record. c. If the parties do not agree to do so, consider issuance of injunctive relief, ordering that the steps as set forth in this decision in item 2 above (regarding assessment and holding an IEPC within 30 days) be carried out forthwith. While EHA, its regulations, and state regulations (20 USC 1415(e)(3); 34 CFR 300.513 and R340.1725(c)) provide what is commonly referred to as a "stay put" provision requiring that the handicapped student remain in his or her current placement pending completion of administrative and court proceeding, such does not preclude the court from granting injunctive relief if the usual grounds for such relief are present. See for example, Anderson, et al v District of Columbia, EHLR 441:508 at 511-512 (DC Cir 1989). With all due respect, it would appear to this Hearing Officer that under the circumstances here present the traditional grounds for such relief exist. Should the Court later determine the SIBIS device should be utilized, the IEPC can be modified then as necessary.

The Wayne Intermediate School District is charged with the responsibility to assure that this decision or the final decision on appeal has been implemented and so notify the Michigan Department of Education, Special Education Services.

This decision shall be implemented in accordance with the rules and regulations of Michigan Public Act 451 and the Education of the Handicapped Act (EHA) and is subject to appeal by either party within seven (7) days as provided in Rule 25 of the Special Education Code (R340.1725). An appeal statement, specifying particular issues of disagreement, should be directed to Dr. Benson R. Herbert, Special Education Services, Michigan Department of Education, P.O. Box 30008, Lansing, Michigan 48909. A copy of the appeal should also be directed to the Hearing Officer and the Honorable Barbara K. Hackett, Federal District Judge.

FN1 Numbers in parentheses shall indicate references to the pages of the transcript of the hearing held over 29 sessions from November 22, 1989 through March 20, 1990. The transcript is in 31 volumes, 29 of which are numbered Volume 1 through Volume 29, with the exception that there is no Volume 7. There are two volumes marked 6. The first, regarding testimony taken on December 13, 1989, will be referred to as Volume 6a and the second, regarding testimony taken December 14, 1989, will be referred to as Volume 6b. The remaining two volumes concern testimony taken of Dr. Thomas Linscheid and Dr. Ramesh Chheda on November 22, 1989. These volumes shall be referred to as "Linscheid" and "Chheda," respectfully.

There are four types of exhibits. The Hearing Officer exhibits will be referred to as "HO Ex 1." Exhibits of the Petitioner will be referred to as "P Ex 1." The Respondent, Northville Public Schools School District's exhibits will be referred to as "D Ex 1." The exhibits of the Intervenor will be referred to as "PA Ex 1." The Respondent, Wayne-Westland School District, submitted no exhibits.

FN2 Possibly this should be considered another application of a "standard of reasonableness" regarding related services applied and discussed in Bevin H v Wright, EHLR 559:122 at 124 (WD PA 1987).

FN3 It can also be debated whether the CPA intended solely that the pain must be inflicted by another person as opposed to the student. Also, if utilization of the SIBIS device were prohibited under the CPA, questions have been raised with regard to whether it would be preempted by EHA or be incorporated within it as a "state standard" as part of a FAPE (34 CFR 300.4(b)). See in this regard Students of California School for the Blind v Honig, 736 F2d 538 (1984). Given the basis for the above ruling, none of these questions need be addressed.

FN4 The other options would appear to be total restraint of [___ indefinitely or a frontal lobotomy.

This Hearing Officer feels constrained to point out that testimony of [___'s pediatric neurologist was not at all persuasive. In the event utilization of the SIBIS is considered for [___ in the future it would be prudent for the parent and/or district(s) to obtain additional advice in this area.

Further, the device as currently manufactured does not allow the intensity of the stimulation to be adjusted. Given the basic professional standard that no greater "punishment" should be administered than necessary "to do the job," the possibility of the SIBIS being redesigned to have this feature might warrant consideration and explanation.

[Index]

Related Services; Other Therapies and Services; SIBIS Is a Related Service

Multiple Disabilities; In General; SIBIS Is a Related Service

Behavior Management/Modification; Aversives; SIBIS Is a Related Service

Related Services; Other Therapies and Services; District Is Not Obligated to Pay for SIBIS

Multiple Disabilities; In General; District Is Not Obligated to Pay for SIBIS

Behavior Management/Modification; Aversives; District Is Not Obligated to Pay for SIBIS

Related Services; Other Therapies and Services; Other Approaches Must Fail Before Using SIBIS

Multiple Disabilities; In General; Other Approaches Must Fail Before Using SIBIS

Behavior Management/Modification; Aversives; Other Approaches Must Fail Before Using SIBIS

16 EHLR 847