B. T. and B. T. v. Simcoe County District School Board, 2004 ONSET 4

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

B. T. and B. T.

Appellants

-and-

SIMCOE COUNTY DISTRICT SCHOOL BOARD

Respondent

DECISION

Tribunal Members: Paula Barber, Chair

Sharon Carson, Member

Dawn Roper, Member

Date: May 28, 2004

Citation: 2004 ONSET 4

Indexed as: B. T. and B. T. v. Simcoe County District School Board

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

IN THE MATTER OF the Education Act, R.S.O, 1990, E2, as amended, 57(3)

IN THE MATTER OF Ontario Regulation 181/98;

AND IN THE MATTER OF the minor child born in 1994

BETWEEN

B. T. and B. T. – Appellants

And

The Simcoe County District School Board - Respondent

Tribunal Members:

Paula Barber, Chair

Sharon Carson, Member

Dawn Roper, Member

Parties

B. and B. T.

Counsel for the Appellant: Ellie Venhola

Ms. F, SCDSB

Ms. S, SCDSB

Counsel for the Respondent: Brenda Bowlby

A Preliminary Hearing on the matter of jurisdiction was held by teleconference on September 22, 2003.

The Hearing was held at the Holiday Inn in Barrie, Ontario on February 19 – 25, 2004.

.Preliminary Matters:

It should be noted that the issue on the preliminary matter of jurisdiction was heard together with the case of W. and this issue is also addressed in W. v. Simcoe County District School Board, May 27, 2004 (2004 ONSET 3).

1. Preliminary Matters

Jurisdiction

At the teleconference on September 22, 2003 on the matter of jurisdiction for the appeal on behalf of both minor children, counsel on behalf of the Simcoe County District School Board, argued that the Tribunal did not have jurisdiction to hear the appeal since the Appellants were appealing program but not placement. It should be noted that these two children’s matters were heard together on this issue only.

Respondent’s Position

Ms. Bowlby, counsel for the Respondent, stated that this is not an appropriate case to appeal to a Special Education Tribunal. In referencing Section 57(3) of the Education Act, she argued that the parent is only permitted to appeal the decision of the IPRC (Identification, Placement and Review Committee) related to the identification and the placement of the child, and that there can be no appeal regarding any recommendations that the IPRC makes. She maintained that the Appellants were seeking to have the Simcoe County District School Board provide therapeutic services instead of an educational placement. Ms. Bowlby stated that the Tribunal has no jurisdiction to hear appeals on programs or services, and that the Tribunal has no authority to direct the Board to provide a medical therapy or to provide a therapeutic program. The Tribunal’s jurisdiction pertains to an educational placement, not a therapy.

On behalf of the Respondents, Ms. Bowlby contended that the Appellants do not dispute the placement, but rather the specialized program and services within the program that the parents of the two students want them to have. Ms. Bowlby stated that Intensive Behavioural Intervention (IBI) programming is a specialized behavioural program. She said the Board is providing specialized programming, including behaviour management programming that is currently directed to children with autism, but is not providing IBI.

Ms. Bowlby referred to recent decisions of this Tribunal in C. v. Simcoe County District School Board, September 15, 2003 (2003 ONSET 3) and C. v. Dufferin-Peel Catholic District School Board, September 18, 2003 (2003 ONSET 4) in which the Tribunal found that IBI is a therapy and under Program Policy Memorandum No.81, the school board does not have the authority to provide therapy to children in schools. If therapy is needed by school aged children in school settings the Ministry of Health or the Ministry of Community, Family and Child Services (now called Ministry of Child and Youth Services) provides such therapy. Ms. Bowlby argued that the Appellants really want IBI, a therapy, to be provided to their children in a school setting and therefore the Tribunal should rule that it does not have the jurisdiction to hear the case regarding the two students. Ms. Bowlby further argued that the Appellants want a service provided for their children and that the Tribunal does not have the authority to order the Board to provide a service.

Appellants’ Position

The Appellants argued that the Tribunal does have jurisdiction to hear the case and referenced the C. v. Simcoe County District School Board, September 15, 2003 (2003 ONSET 3) decision in which the grounds for the appeal were identical to the grounds put forward by the two families. Ms. Venhola, counsel for the Appellants, reminded the Tribunal that in earlier discussions about joining these matters it was noted that the children in the three cases – C., T. and W. – are in the same class in the same school and within the same Board. She argued that since the Tribunal agreed to hear the case for C., under the principles of natural justice and fairness the Tribunal should then also hear the case of these two students [referred to by their last name initial, T. and W.].

Ms. Venhola further argued that the issue is not whether IBI should be provided within the placement under dispute, but rather whether the placement under dispute is an appropriate placement for the students. She further argued that there is different evidence for the two children, different from the evidence presented in the C. tribunal, and she asked the Tribunal to consider the needs of the two children as distinct cases.

Ms. Venhola argued that the situation is different from the C. (2003) case in which the child was placed in a regular class in that these two children are in special class placements.

Ms. Venhola referenced L. v. Le Conseil Scholaire de District Catholique, November 2, 2001 (2001 ONTED 1) and stated that the argument in L. is, in essence, the argument in this case in that the programs and services made available are not meeting the needs of the two students and on that basis, the placement is inappropriate. With respect to C. v. Dufferin-Peel Catholic School Board, September 18, 2003 (2003 ONSET 4), Ms. Venhola argued that this is a different situation from C. (2003) and T. and W. She interpreted the Tribunal’s decisions regarding jurisdiction as “discretionary” and argued that the Tribunal may consider services and programs that can be provided in a placement because they are interrelated. She posited that in C. it was the idea of the child’s learning style that could not be appealed and that none of the appeals for C., W. and T. allege the same grounds as the Appellants in C. v. DPCSB.

According to Ms. Venhola, the families in the C., W. and T. cases have asked the Tribunal to consider the needs of each of their children and whether the programs and services within the IPRC placement decision are appropriate for each child. Given that:

1. the legal positions of the two families in their appeals before the Tribunal are identical to the C. (2003) appeal, and

2. given the facts upon which the Tribunal held it would be appropriate to give the Appellant in C. an opportunity to have her case argued, and

3. that the position of the two families are identical to those argued in C. v. Simcoe County District School Board, September 18, 2003 (2003 ONSET 3), it would be unreasonable and unfair for the Tribunal to refuse jurisdiction to these two families. There may be additional facts that the two families are entitled to bring to the appeal, and therefore in order for the Tribunal to exercise its discretion fairly, the Tribunal should allow both the appeals to be heard on the merits of each case. As well, it is important for the Tribunal to understand the two students’ needs and to understand the current placement for these children in order to determine if the placement in the Autism Pilot Project class is appropriate.

Ms. Venhola argued that in R. v. the Ottawa-Carlton Catholic School Board, December 16, 1988, (1988 ONSET 2) the Board was ordered to purchase a placement from another school board if the Board could not offer a placement for the child. She stated that in L. v. Le Conseil Scholaire de District Catholique, November 2, 2001 (2001 ONTED 1), the Tribunal took program and services into account in its decision and recommendations. Further, she argued that in D. v. Windsor-Essex Catholic District School Board, 2003 ONSET 6, the Tribunal stated that program and placement are sometimes intertwined and that the narrow view of placement as a location does not permit the Tribunal to consider the best interests of a child. Ms. Venhola argued that a placement has to include content and that content has to be program.

Ms. Bowlby, in reply, stated that in C. v. Simcoe County District School Board, September 15, 2003 (2003 ONSET 3), IBI was before the Tribunal, and it was the first time that the issue of the delivery of IBI had been dealt with squarely by a Tribunal. She argued that in C. v. Simcoe County District School Board, the Tribunal found that IBI therapy was not an education program and not an education service. In addition, the Tribunal found that IBI was not a special education service and not a special education program. Ms. Bowlby stated that in both C. v. Dufferin-Peel Catholic District School Board, September 18, 2003 (2003 ONSET 4), and C. v. Simcoe County District School Board, September 15, 2003 (2003 ONSET 3), the Tribunal found that IBI was not education and was not something that could be ordered by the Special Education Tribunal.

Reasons

The Tribunal has reviewed the evidence presented by both parties to determine if the Special Education Tribunal has the jurisdiction to hear the appeal.

The Tribunal determined that services and programs provided in a placement sometimes need to be considered because services, programs, and placement are interrelated and therefore difficult to separate and deal with individually. Due to the intertwining of the placement and program in the Elementary Autism Spectrum Disorder/Pervasive Developmental Disorder (ASD/PDD) class, the Tribunal believes that it is necessary to hear the case under appeal in order to understand the two students’ needs, to understand the placement proposed for them in the June 2002, IPRC decision, and in order to make a decision that would be in the best interest of these students. The Chair stated that tribunals are governed by the principles of natural justice, and in keeping with the principles of fairness and the right to be heard, the Tribunal believes that it needs to hear the evidence of the witnesses in order to uphold the appeal, dismiss the appeal, or reserve its decision on jurisdiction after hearing the parties’ evidence and the merits of the appeal.

Decision

In order to make a decision in the best interest of the two students, the Tribunal believes that it must hear the merits of the case to determine if it has jurisdiction in the matters before the Tribunal. The question of the Tribunal’s jurisdiction, therefore, will be decided after the evidence is called.

2. Matter of Separate Tribunals

The matter of separate tribunals for the two students [T. and W.] was raised at the start of the hearing. The Chair noted that this panel was able to consider documents in evidence at the W. tribunal, on the agreement of all parties.

Ms. Bowlby noted the understanding of counsel was that this hearing for the child of the Appellant was a separate hearing from that of W. Both parties agreed that some documents would be brought forward and that certain evidence from the W. hearing would be used but explained that they were nevertheless two separate hearings.

Ms. Venhola expressed her opinion that initially three families came forward, and although the legal issues were identical that facts in each case were different and that the Appellants expected three separate decisions.

The Chair indicated that the Tribunal was aware that the parents wanted separate decisions and that the children would be treated as individuals. The facts for each child would be applied to that particular case. The Chair clarified, for the record, that this Tribunal was convened on behalf the child of the Appellant and that there would be separate decisions written for the two children.

3. Admissibility of Case Analysis from a Human Rights Investigation

Appellants’ Position:

Ms. Venhola stated her intention to introduce into evidence a case analysis from the Ontario Human Rights Commission. Ms. Venhola said there is an Ontario Human Rights investigation ongoing, that a preliminary finding of discrimination against the government has been made with a recommendation for a full hearing, and the Tribunal, as an agent of the Crown, has three options: to adjourn pending the outcome of the Ontario Human Rights Commission complaint; pursue a similar investigation of discrimination in this proceeding; or reject the submission and proceed.

Respondents Position:

Ms. Bowlby, on behalf of the Simcoe County District School Board (SCDSB) objected to this request on two grounds: relevance and hearsay. She stated that the process of a Human Rights Complaint is that a junior Human Rights Officer would at first conduct a preliminary investigation and make a recommendation as to whether there is sufficient evidence to go forward to a Human Rights Board of Inquiry, which is a hearing under the Statutory Powers Procedure Act, by an independent body called the Human Rights Tribunal. Ms. Bowlby stated the preliminary findings are not a finding of a Human Rights Tribunal, but an opinion of a junior staff person, whose opinion is not always borne out in the ultimate hearing. There is no finding of discrimination in an investigator’s report.

Ms. Bowlby stated that this is a complaint against the government, not the SCDSB and therefore has no relevance for the Tribunal. Ms. Bowlby stated the issue before the Tribunal is the child’s placement, not whether the Government of Ontario should provide funding for IBI. Ms. Bowlby disputed Ms. Venhola’s assertion that a finding of discrimination had been made, stating there can be no finding of discrimination in a report that has not yet gone before a Board of Inquiry.

Ms. Bowlby pointed out that Bill 82, a specialty Act that introduced Special Education in the Province of Ontario, was intended to ensure that children with disabilities have their right to accommodation met so they can have access to educational services. The Human Rights Code did not protect the rights of disabled people until two years after the Special Education legislation was passed. She further stated that the purpose of Special Education is to ensure that a student’s human rights are protected. If the focus of the Special Education Tribunal is on the child’s needs in finding an appropriate placement for the child, then a Tribunal is doing the right thing. She provided that in 1985, section 15 of the Charter said the same thing and the Supreme Court in E. v. Brant County School Board of Education 1997 CanLII 366 (SCC), [1997], 1 S.C.R. 241; 31 O.R. (3rd) 574; 142 D.L.R. (4th) 385. (866) agreed. It said that when a Tribunal is finding a placement that it feels is appropriate for the child, the Tribunal is complying with the Ontario Human Rights Code and the Charter.

Ms. Bowlby stated that, as an expert Tribunal, which the Supreme Court found the Special Education Tribunal to be, the Tribunal has a duty to make a decision as to what is an appropriate placement for the child and if it does that, it is complying with the Charter and the Ontario Human Rights Code. Ms. Bowlby pointed out the role of the Tribunal is to make decisions in the best interest of the child, as affirmed by the Supreme Court of Canada in the E. case, and in so doing the Tribunal is following the Ontario Human Rights Code. She also stated there is nothing in the jurisdiction of the Tribunal to permit it to conduct an investigation under the Ontario Human Rights legislation.

Ms. Bowlby noted that the issue before the Tribunal is the child’s placement.

In reply, Ms. Venhola stated that the Ministry of Education governs education in the province, which includes the school boards, and argued that there is a direct connection to this case analysis. She also referenced an Ontario Divisional court decision in Walmer and Wolch,

(September 8, 2003), OCC 637 in which the judges’ decision said that “A tribunal in the province is bound to consider the Code.”

Decision

The Tribunal ruled that while its decisions must be consistent with the principles of the Ontario Human Rights Code and the Charter of Rights and Freedoms, there is nothing to prevent the Special Education Tribunal from proceeding at the same time as another matter is proceeding in another court. This Tribunal operates under a different mandate, within an entirely different kind of proceeding and therefore will proceed with the Tribunal hearing apart from the Ontario Human Rights proceeding. The Tribunal believes that it is not in the best interests of the child to adjourn the proceedings while waiting for a Human Rights Inquiry. The Tribunal agreed with Ms. Bowlby’s arguments that the Tribunal could not act as a court of investigation and conduct an investigation into the allegation of discrimination by the Ontario Government in the matter that the appellant family has raised with the Ontario Human Rights Commission.

Scheduling of Witnesses

The matter of the scheduling of witnesses was resolved by counsels for the parties.

Introduction

On February 19th 2004 the Tribunal began the Hearing to determine the placement of the child T. The Chair stated that the Hearing would be conducted under the authority of the Education Act RSO 1990, c.E.2, as amended, section 57, and the regulations made thereunder, and the Statutory Powers Procedure Act.

The student is an energetic child with autism. The child communicates with gestures, signs, and leading [people by the hand], but has no speech, except for the occasional sentence delivered from time to time. The child likes videos and likes to be read to, but is not particularly social with other children. The child needs constant supervision, as the child tends to put inappropriate things into [the child’s] mouth and also has severe allergies.

The Ministry of Education defines “Autism” under the “Communication” category as:

A severe learning disorder that is characterized by:

a) Disturbances in: a. rate of educational development

b. ability to relate to the environment

c. mobility

d. perception, speech, and language

b) Lack of representational symbolic behaviour that precedes language.

The child attends an elementary school in Barrie, within the Simcoe County District School Board (SCDSB), and is in an Elementary ASD/PDD class.

It is the placement in the Elementary ASD/PDD Class that is under appeal by the Appellants. Though the Appellants believe that the child needs a specialized program, they do not believe the current placement is an appropriate placement in that it is not providing the child with the educational opportunities that the child needs, specifically IBI training, to develop the skills that are important for the child’s future development and academic needs that will allow the child to reach the child’s personal potential.

Legal Framework

Statutes

Statutory Powers Procedure Act R.S.O. 1990, c. S. 22

Charter of Rights and Freedoms S15 (1), Part I Constitution Act, 1982

Ontario Human Rights Code, R.S.O. 1990, c. H. 19

Occupational Health and Safety Act R.S.O. 1990, c.o.1

Education Act, R.S.O. 1990, c.E.2 as amended

Education Act, Subsection 1 (1) Definitions

Section 1.1 of the Education Act defines exceptional pupil, special education program and special education services in the following way:

‘exceptional pupil’ means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee, established under subparagraph iii or paragraph 5 of subsection 11 (1), of the board.

(a) of which a pupil is a resident pupil

(b) that admits or enrolls the pupil other than pursuant to an agreement with another board for the provision of education, or

(c) to which the cost of education in respect of the pupil is payable by the Minister.

‘special education program’ means, in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluations and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil.

‘special education services’ means facilities and resources, including support personnel and equipment necessary for developing and implementing a special education program.

Subsection 8 (3) describing the Powers of the Minister of Education reads:

“The Minister shall ensure that all exceptional children in Ontario have available to them in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario and shall provide for the parents or guardians to appeal the appropriateness of the special education placement and for these purposes the minister shall:

a) require school boards to implement procedures for early and ongoing identification of the learning abilities and needs of pupils, and shall prescribe standards in accordance with which such procedures be implemented, and in respect of special education programs and services, define exceptionalities of pupils and prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions use such prescriptions as established under this clause.” (emphasis added)

The Education Act Section 57, Special Education Tribunals reads:

Section 57 (3) Right of Appeal

Where a parent or guardian of a pupil has exhausted all rights of appeal under the regulations in respect of the identification or placement of the pupil as an exceptional pupil and is dissatisfied with the decision in respect of the identification or placement, the parent or guardian may appeal to a Special Education Tribunal for a hearing in respect of the identification or placement.

Section 57 (4) Hearing by Special Education Tribunal

The Special Education Tribunal shall hear the appeal and may,

a) dismiss the appeal; or

b) grant the appeal and make such order as it considers necessary with respect to the identification or placement.

Section 57 (5) Decision Final

The decision of the Special Education Tribunal is final and binding on the parties to the decision.

Regulations

Regulation 181/98: Identification and Placement of Exceptional Pupils, made under the Education Act, reads:

This Regulation governs the identification and placement of exceptional pupils, IPRC reviews, appeal procedures, and the role of parent(s)/guardian(s) in these processes. At least 10 days in advance of a meeting of a committee or special education appeal board, the chair of the committee or board shall give written notice of the time and place of the meeting to a parent of the pupil and, where the pupil is 16 years of age or older, the pupil. O. Reg. 181/98, s. 5 (5).

Subsection 17 (1) When making a placement decision on a referral under section 14, the committee shall, before considering the option of placement in a special education class consider whether placement in a regular class, with appropriate special education services,

(a) would meet the pupil’s needs, and

(b) is consistent with parental preferences.

Student Focused Funding-Legislative Grants, 2003-04, Section 20, made under The Education Act governs the funding for programs in facilities for children in care and treatment facilities.

Program/Policy Memorandum No.76C describes alternative educational programs and services for deaf, blind, and deaf-blind pupils

Program/ Policy Memorandum No.81 made under the Education Act and Regulations outlines the respective responsibilities of the school boards and Ministries of Health and of Family, Community and Social Services [Recently named Ministry of Children and Youth] for ensuring that students with special needs receive the health services they require in order to benefit from an educational program. Community Care Access Centres (CCAC) funded by the Ministry of Health, provide a single point of access for home care and school health support services to children in the school setting, including nursing, physiotherapy, occupational therapy, speech therapy, and dietetic services to enable children with special needs to attend publicly funded schools.

Program/Policy Memorandum No.85 made under the Education Act and Regulations describes the process provisions for children, who are admitted to a government approved care and / or treatment facility.

Program/Policy Memorandum No.89 made under the Education Act and Regulations provides information on the residential demonstration schools for students with learning disabilities as well as details of the referral process.

Spécial Education Tribunal Décisions Citéd

L. v. Le Conseil Scolaire de District Catholique du Centre-Est de l’Ontario, Novembre, 2, 2001. (2001 ONTED 1)

O. v. Wentworth (County) Board of Education, June 5, 1987. ([1987 ONSET 1](https://www.minicounsel.ca/oset/1987/1))

R. v. Carleton Roman Catholic School Board, December 16, 1988. (1988 ONSET 2)

L. v. York Region Board of Education, October 9, 1985. (1985 ONSET 3)

C. v. Dufferin-Peel Catholic District School Board, September 18, 2003. (2003 ONSET 4)

C. v. Simcoe County District School Board, September 15, 2003. (2003 ONSET 3)

D. v. Toronto District School Board, December 24, 2002. (2001 ONSET 2)

D. v. Windsor-Essex Catholic District School, September 24, 2003. (2003 ONSET 6)

E. v. Halton District School Board, September 19, 2003. (2003 ONSET 5)

Other Sources Cited

E. v. Brant County Board of Education 1997 CanLII 366 (SCC), [1997], 1 S.C.R. 241; 31 O.R. (3d) 574; 142 D.L.R. (4th) 385.

Auton (Guardian ad litum of) v. British Columbia (Minister of Health) (2000 BCSC 1142, 2000, B.C.S.C. 1142; [2000], 8 W.W.R. 227; 78 B.C.C.R. (3d) 55 (B.C.S.C.).

Auton (Guardian ad litum of) v. British Columbia (Minister of Health) (2002), B.C.C.A. 538; 2002 BCCA 538, 6 B.C.L.R. (4th) 201; 220 D.L.R. (4th) 411 (B.C.C.A.).

Eldridge v. British Columbia (Attorney General) (1997), 1997 CanLII 327 (SCC), 151 D.L.R. (4th) 577 (S.C.C.).

Innnisfel (Township) v. Vespra (Township et al.) (1981), 1981 CanLII 59 (SCC), 123D.L.R. (3d) 530 S.C.C.

Jackson v. Region 2 Hospital Corp. (1994) 1994 CanLII 8874 (NB QB), 145 N.B.R. (2d) 51; 24 Admin. L.R. (2d) 220

(NBQB).

Walmer Developments v. Wolch (September 8, 2003), Court File No. 637.

Ontario College of Teachers, Standards of Practice for the Teaching Profession, 1999.

Fleischman and Starr v. Toronto District School Board and David Moore (January 19, 2004), Doc. 721/03 (Ont. Div. Ct.).

Ontario Ministry of Education, Guidelines for Approval of Textbooks and Trillium List. May 31, 2002.

The Trillium List replaces the list of materials associated with Circular/Circulaire 14 (C.14) and provides the titles of those English and French language textbooks that have been approved by the Ministry of Education. The Trillium List which should be used by school boards on their selection of textbooks, may be accessed on the Ministry of Education web site. The Ministry of Education describes textbooks and “supplementary resource” [included in the Trillium List] in the following way:

“Supplementary resource is defined as a resource that supports only a limited number of curriculum expectations, or the curriculum expectations in a single strand, outlined in curriculum policy documents for a specific subject or course. Such a resource may be intended for use by an entire class or group of students. Examples are readers, novels, spelling programs, dictionaries, atlases and computer software and instructional guides.”

Ontario Ministry of Education, A Standards-based Approach: Piloting the Standards for Special Education Program and Services for Students with Pervasive Developmental Disorders/Autism Spectrum Disorders, 2003.

Integrated Services for Children Division, Program Guidelines for Regional Intensive Early Intervention Programs for Children with Autism, 2000.

Ontario Human Rights Commission, The Opportunity to Succeed. Achieving Barrier-Free Education for Students with Disabilities, 2003.

Providing Intensive Behavioural Treatment for Children with Autism, Ron Leaf and John McEachin, Annual Workshop, 2003.

National Research Council (2001) Educating Children with Autism. Committee on Educational Interventions for Children with Autism. Catherine Lord and James P. McGee, eds. Division of Behavioural and Social Sciences and Education. Washington, DC: National Academy Press.

The Appellants’ Request

The Appellants are appealing the appropriateness of the placement decision of June 2002 of the Simcoe County District School Board placing the child in the Elementary ASD/PDD class. Due to a number of unusual factors during the school year, 2002 – 2003, and the Board’s obligation, under legislation, another IPRC was held in June 2003. The Appellants are appealing the IPRC placement decisions of both 2002 and 2003 as the placement does not meet the child’s special needs, and the child will not be able to receive an education which will allow the child to reach the child’s personal potential in the placement. The family is appealing this second placement concurrently within this hearing. The Appellants believe their child’s special programming needs are not being met in this placement and as a result, the child’s education is currently inadequate. The family is requesting that the Tribunal make an order granting the appeal and ordering the Respondent to place the child in a special education class that consists of a program of IBI, which is intensive behavioural intervention. The level of such a program should be consistent with the IBI program the child currently receives [in the home]. This program should include very intensive programming. In the document submitted to the Tribunal prior to the preliminary hearing the Appellants in their “Remedies sought from the Special Education Tribunal “also requested staff who are “duly qualified to meet [the child’s] needs.”

The Appellants believe the placement is not appropriate because it does not meet the child’s special needs and is thus inadequate. The Appellants believe that within this placement the child will not receive an appropriate education, which would allow reaching the child’s personal potential. The Appellants believe that the child has learned successfully through an IBI program that was provided at home and in the Kindergarten year. The Appellants also believe that the program the child is receiving in the current placement is inferior to the intensive behavioural intervention program received at home and inferior to the one that received in kindergarten. They believe that the child has regressed in ‘learning how to learn”. The Appellants believed that the child has regressed in learning as a result of not being able to access intensive behavioural intervention in the amount and intensity that the child requires at school. The Appellants believe that the Board can provide therapy, if IBI is a therapy at all. They believe that as a treatment, one of the key components of intensive behavioural intervention is that it is a program of instruction and it teaches the child academics. The Appellants are seeking an order directing the Respondent Board to place the child in a special education class for people living with autism, which consists of a program of IBI. Counsel for the Appellants stated that the Board has the statutory duty to do so under the Education Act, the Ontario Human Rights Code and the Charter of Rights and Freedoms.

It is the Appellants’ view that the form of behavioural intervention in the child’s case must be IBI. They are appealing the IPRC placement decisions of both 2002 and 2003 as the placement does not meet the child’s special needs, and the child will not be able to receive an education which will allow reaching the child’s personal potential in the placement.

The Appellants are asking that the appeal be granted and that the Respondent Board be ordered to place the child in a special education class for pupils living with autism, which consists of IBI. The Appellants maintain the School Board can do this by modifying the current placement or creating a new placement, which consists of IBI. The Appellants believe that their child can learn to learn and that he has done so successfully through the IBI program provided at home and also during [the child’s] Kindergarten year at school within the Respondent Board’s jurisdiction. It is the Appellants’ belief that IBI instruction will teach the child how to communicate, how to discern, and how to be able to adopt key and basic principles. IBI will meet the child’s individual needs.

The Appellants believe the benefits of IBI to the child are numerous, and that IBI is a program of instruction that teaches their child academics such as the alphabet and learning to communicate. The Appellants argue that there is no logical reason why the Board cannot provide IBI to their child.

The Appellants’ view is that their child has special needs that must be met both at home and in the educational system. The appropriate placement for their child to achieve his academic potential is a placement that consists of IBI, (intensive behavioural intervention), and because IBI is not being offered within his current placement, the placement is not appropriate.

The Respondent’s Reply

The Board submitted that the Appellants are seeking a placement that, in lieu of placement in the elementary special education class ASD/PDD, would provide full-time IBI therapy to the child. The Appellants are seeking a placement that would be a care and treatment program provided by a therapist and supervised by a psychologist, neither of whom would have education qualifications. The Respondent states that the current placement for the child in the ASD/PDD Elementary class is appropriate to meet his needs.

The Board’s position is that the Autism Pilot Project was designed to specifically provide placements for children with autism. The Board’s experts and external experts designed the Project that took the needs of the children specifically into account. T. met the criteria for that project as a child with autism. As well, T. has severe to profound cognitive delays as stated in a report from the Hospital for Sick Children. This report stated that the child in November 2001 when he was seven and one half years was performing at the first percentile in receptive and expressive language, which indicates a severe delay. In the Vineland Test the child performed below the first percentile in communication, daily living skills and motor domains, all within the range of a severe to a profound deficit.

The Board’s position is that the child has made progress in the ASD/PDD placement and that the placement is appropriate for the child.

The Board’s position is that IBI is therapy, not a special education program or service and as such the Tribunal has no jurisdiction to order a Board to provide a therapy in lieu of an educational program. The Education Act provides that Education in Ontario classrooms must be provided by teachers, not therapists or psychologists.

As well, the Board has taken the position that the program it is providing to the child in his current placement, does include applied behavioural analysis principles or positive behavioural principles, as does all good pedagogy. The Board maintains that the current placement is appropriate.

Witnesses

The Tribunal heard the following witnesses:

For the Appellants

Dr. Mary Konstantareas -Psychologist, Professor at Guelph University and in Private Practice

B. T. - Parent,

B. T. - Parent,

Eileen Bethune - IBI Therapist, Employee for Leaps and Bounds

Transcript Evidence from W. Hearing

Linda Cross - Senior Area Coordinator for Leaps and Bounds (a service provider for children with Special Needs)

Sally Baker - Senior Therapist for the Autism Program for York Central Hospital

For the Respondent

Dr. Marian Boer – Psychologist with Simcoe County District School Board

J.C. - Classroom Teacher, Autism Pilot Project, Simcoe County District School Board,

Linda Milhausen – Special Education Consultant, Simcoe County District School Board

Briar Galloway – Integration Resource Teacher - Simcoe County District School Board

S. – Principal of Special Education, Simcoe County Board of Education

Tracy Hunt, - Speech Language Pathologist, Simcoe County District School Board

Joan Fullerton - Superintendent of Student Services, Simcoe County District School Board

Transcript Evidence from W. Hearing

Sheri Smith - Integration Resource Teacher, Simcoe County District School Board

Linda Milhausen – Special Education Consultant, Simcoe County District School Board

Joan Fullerton - Superintendent of Student Services, Simcoe County District School Board

Tracy Hunt - Speech Language Pathologist, Simcoe County District School Board

Testimony of Witnesses for the Appellants

Testimony of Dr. Konstantareas

Dr. Mary Konstantareas described her experiences with autism. She stated that she had directly treated children with autism or educated them -‘it depends on your definition.” She has supervised others while they worked with these children and taught courses at the graduate level on autistic disorders, severe developmental delays, and other severe dsyfunctionalities. Dr. Konstantareas stated she taught courses at the Ontario Institute for Studies in Education between 1982 and 1991 on the etiology and intervention strategies for children with autistic disorder and severe developmental delay.

Dr. Konstantareas now teaches undergraduate students on pervasive developmental disorders and a course on intervention strategies with any psychopathological population at the University of Guelph. Every two or three years, she teaches a course on how to assess and provide recommendations to parents of children with autism, children with schizophrenia, as well as children with a developmental delay. Dr. Konstantareas also has a private practice in which she supervises people conducting IBI programming. In addition, Dr. Konstantareas provides consultative expertise on intervention strategies and diagnostic clarity in cases where there is a lack of information regarding a child. In addition she supervises extensive research in a number of areas of severe dysfunctionalities.

Dr. Konstantareas began her work with children living with autism in 1974 when she helped pioneer the use of sign language with children with autism. This research in this project was published and two or three other studies were completed. She stated that she finds these children fascinating. Their needs are so compelling that even small gains are a celebration.

In establishing Dr. Konstantareas as an expert witness, Dr. Konstantareas agreed that she is a registered clinical psychologist and is registered with the College of Psychologists in Ontario and has expertise in autism. She is not a school or academic psychologist. She stated she has consulted with special education teachers and with school boards providing strategies on how to deal with behavioural issues, mainly with children with autism. Dr. Konstantareas is not a qualified teacher. She is a university professor and supervises psychology students from the University of Guelph who are doing research projects that pertain mostly to autism. However, Dr. Konstantareas stated she did research in a school setting between 1972 and 1974 and while she was at the Clarke Institute. Last year, a student of Dr. Konstantareas evaluated the effectiveness of IBI intervention at the New Haven Children’s Centre School in Toronto by completing pre and post testing. (This work has not been published.) The New Haven Centre is a specialized facility for children with autistic disorders ranging in age from two to 15 or 16 years old. It specializes in the delivery of IBI. As well, Dr. Konstantareas supervised the educational instruction at this facility and stated “that to the extent that IBI is very effective with this population …it qualifies supremely as a special education technique”(p.74 L.18-20).

There was an agreement between the parties that Dr. Konstantareas is an expert witness in autism and is an expert witness as a clinical psychologist.

Dr. Konstantareas reviewed an affidavit written by her, dated October 20, 2002. It was prepared in support of two parents who are in litigation with the Ontario government to have IBI continued beyond the age of six.

Dr. Konstantareas explained the purpose of the affidavit was to state that children with special needs require intensive training that includes discrete trial intervention. This means the child is exposed to specific stimuli and the child’s response is appropriately rewarded, usually by various schedules of reinforcement. Dr. Konstantareas claimed that this approach, which began in 1966 by Dr. Ivar Lovaas, a psychologist from the University of California, has been shown to have the greatest promise if delivered early in the life of the child, as reported in different journals.

Basically, if IBI is delivered early in the life of the child, it has the greatest promise. Dr. Konstantareas went on to state that we never stop learning and gave the example of 50% of children [with autism] at the Clarke Institute that ranged in age from five to eleven acquired sign language and speech. The approach used was close to the IBI approach. She believes that there is no reason to not expose a child to a technique that worked before the child was six just because the child has now turned six.

Dr. Konstantareas stressed that intensive behavioural intervention of the IBI variety will save money in the long run if the children can take care of their own personal needs, communicate, read words and for some, become academically competent. Dr. Konstantareas described IBI as a “technique”. She stated that IBI does work and she has been seeing it work ever since she began working with this population. [autism]

Dr. Konstantareas discussed some of the medical theories of the cause of autism and stated we are not at a point of preventing the disorder but we need to help the children become as independent as possible. She stated that the variability of programs and treatments are “staggering.”

Dr. Konstantareas stated IBI implies that a child has a systematic assessment of his/her needs, followed by attempting to get the child to acquire the skills he/she is lacking. She stated that B.F. Skinner was the father of Radical Behaviourism and Ivar Lovaas, his student, adapted this theory to the education of children with autism. With ABA, applied behavioural analysis, Dr. Konstantareas said you examine the antecedent and the consequences of that behaviour. The assumption is that if the behaviour is followed by positive consequences it is likely to increase that behaviour. IBI programming fits with Skinner’s ABA (applied behavioural analysis) as we set the antecedent, “Look, show me…” and when the child points correctly he/she gets a piece of chip. Special Education uses ABA, according to Dr. Konstantareas, and she didn’t see the objection to using IBI. She continued to say ABA (applied behaviour analysis) is the broader paradigm on which IBI is based. “I’m saying that ABA is the broader paradigm; IBI is the approach that has been employed with children with either retardation or autism.”

Dr. Konstantareas described the IBI program. “We begin to evaluate with a specific instrument the child’s skills versus his lack of behaviours. In consultation with parents and workers we decide what behaviours we are going to target and for what given period of time. Then sitting across from the child we basically attempt to get the child to acquire the skill rewarding the child on a variable ratio schedule.” She noted that this program is employed with both children with a developmental delay and autism.

Dr. Konstantareas stated the following exigencies are necessary to set up the program. [IBI] She reported, ‘You need expertise…Someone, who has taken courses in applied behaviour analysis, knows behavioural principles and has done it before. .. You need to have someone to supervise the activity and has expertise to say what should be happening. The workers (due to the intensity of the program) have to work on an ongoing basis with enough hours (from 25 – 40) to effect change. The parents must be motivated and involved. Dr. Lovaas stated in 1973 that children whose parents were not involved lost skills after the program was ended.”

Dr. Konstantareas concluded that the data collection distinguishes IBI from other forms of intervention. The data is thoroughly collected and evaluated and denotes progress. The data is also testing itself so parents can see whether it works or not. The data collection is one of the big advantages to this approach. Dr. Konstantareas said other forms of intervention are not as intense. These approaches may be well meaning and caring, but are not effective. Dr. Konstantareas believes that it is the clarity of information on whether the child has acquired the specific skill that makes it a superior intervention. She stated she has not been exposed to a child who has not benefited from this program. She believes the term “intervention” is more appropriate than “treatment” or “education.” Dr. Konstantareas stated “sometimes we don’t know what to do but here we do”. It is her belief that it is unconscionable to deprive a child of this [IBI]. “IBI is the best treatment we have at the moment.” Dr. Konstantareas said she believed that IBI could be implemented in schools, as that is where children are supposed to be.

Dr. Konstantareas stated that IBI had only been implemented in this way four years ago and thus there is not long-term data. She also stated there is not a follow-up study. She speculated that the children receiving IBI would be two or three years above the functioning level they would otherwise have reached without IBI. Dr. Konstantareas discussed some of the follow-up that was done with students who were in the two-year Clark Institute program for intensive sign language and speech intervention and other cases she followed. Not all had received IBI and some gained independence but these were the exceptions and not the rule. Some youngsters accessed community services and live at Kerry’s Place residences. They received behavioural ABA therapy but not IBI and have been successful.

She has personally seen three out of 100 children [who had received IBI treatment] who got to the point of improving that they were indistinguishable from typical children in school, although she noted that these are the exception rather than the rule.

Dr. Konstantareas said IBI overly emphasizes communication, particularly spontaneous communication with the emphasis on how to communicate and interact with others. Integration with other children in a school setting allows them to feel comfortable with children first. Dr. Konstantareas stated motivation to please is not high in many of these children. IBI allows food and later tokens to motivate the children because abstract rewards are not enough.

Dr. Konstantareas described the steps taken in discrete trial training and reinforcement of a simple discrimination task. She stated the word “intensity” applies to the trials being presented one at a time and presented fast. “You do it over and over again. It is a very tedious job.” The task can include 800-1000 discrete trials as long as the child can maintain a focus. The consistency of the program applies to the number of therapists and frequency of delivery. A break of a week of delivery [of the program] can set a child back. The stability of the family is also important.

Dr. Konstantareas reviewed a daily plan for T. from 2000-2001 year. She stated that many of the activities, such as the sensory program for example, and weighted vest have no evidence that they will help the children learn basics. She went on to question what the EAs (educational assistants) were doing and why they could not be trained to use IBI.

During cross-examination, Dr. Konstantareas agreed that her previous work had been on the subject of stress on parents with children living with autism. At present, the research she is directing is on temperament and regulation of emotion. Dr. Konstantareas stated she sympathizes with the families of children with autism as she knows how difficult it is for them and often the community is not supportive. She stated there is “a lag between the appearance of an approach that seems to work and the willingness of all of us to implement it” and agreed that she is an advocate for parents.

Dr. Konstantareas described her work at the University of Guelph clinic. She stated that she gives instruction on how to assess and provide recommendations to the parents. The University clinic has an agreement with the local school board and serves their school population. Dr. Konstantareas’ practice relates to the area of pervasive developmental disorders. She teaches students at the doctorate level how to assess a child, etiology of the condition, intervention strategies, and how to communicate with parents on results and program implementation for their child.

Dr. Konstantareas disagreed that research supports a variety of effective approaches and stated the international literature suggests it must be narrowly conceived within the behavioural paradigm. She elaborated on the Opinion Method, the Delacato Approach, the Electronic Ear and Music and Dance Therapy as debunked approaches and a waste of the child’s time.

Dr. Konstantareas again disagreed that there was research that supported the effectiveness of other approaches, but stated there was evidence to suggest that the intensive behavioural intervention approach has shown the greatest improvement in the children. In Dr. Konstantareas’ opinion the one approach that is effective in all children with autism is the behavioural approach. She stated she was not aware of other studies that demonstrated equal competence to IBI. Dr. Konstantareas reiterated that those behavioural approaches, discrete training approaches, are not necessarily the only approaches that have the potential to assist in the formation of new skills and abilities in these children. She disagreed with the statement that there is no generally accepted empirical data that exists on which it can be concluded that IBI is the only approach which will achieve the best results for all children with autism.

As cross-examination continued, Dr. Konstantareas acknowledged her association with and the respect for the work of a number of authors in a study entitled Educating Children with Autism, 2001, a published report by the Committee on Educational Interventions for Children with Autism for the National Academy of Science [America] published by the National Research Council although she did not know the report itself. She agreed with many of the excerpts presented to her from the publication and expanded on the statements presented to her. The statement “although there is evidence that interventions lead to improvements, there does not appear to be a clear, direct relationship between any particular intervention and children’s progress” was read to Dr. Konstantareas. Dr. Konstantareas agreed with this statement and stated any intervention that is followed up on and data kept would likely lead to better outcomes. She stated that all the authors that had been identified to her were behaviourists like her and they are talking about strategies that involve a behavioural component. Dr. Konstantareas stated that although there is varying ability in the responsiveness to treatment we do not know in advance how the child will respond. Dr. Konstantareas agreed that the children within autism spectrum disorder are very heterogeneous but their treatment planning must be within a behavioural paradigm. The intensity of the intervention varies with the needs of the child.

Dr. Konstantareas disagreed with statements that referred to the lack of predictability of a relationship between a particular intervention and recovery [ability of the child to become indistinguishable from typical peers] from autism. She stated that, “the degree of retardation is one of the predictable variables…So if the child is higher functioning, he will likely do better.” Dr. Konstantareas stated that there are still a lot of gaps in our knowledge of the relationship between particular techniques, child characteristics and outcomes and the advantages a child gains from the input. For a variety of reasons some children do well, some plateau, and some even regress before they go on. She said we do not know what children will benefit so we must try our best approach. The likelihood is that there will be improvement but it is a matter of degree of improvement.

Dr. Konstantareas went on to state that IBI is particularly suited to children who lack a lot of skills. She reported in 1994, Asperger’s Disorder was introduced as part of the Autism range. The contrast between the lower functioning and higher functioning children is very pronounced. She stated social interaction skills are not taught using discrete trials. As soon as the child has improved through discrete trials the child is integrated to work with other children.

Dr. Konstantareas agreed that prior to 1997, the highly structured discrete trial model encountered problems. She also agreed that components such as parent training, naturalistic child initiated interventions, and natural settings have yielded increased spontaneity. She stated a good IBI supervisor would include incidental teaching by teaching in different parts of the house, or settings and using different therapists. Natural language paradigm, pivotal response training and milieu teachings are Koegel’s techniques but Dr. Konstantareas said these are not for the lower functioning children who have no skills.

Dr. Konstantareas stated she had not seen the ASD/PDD classroom and did not know what was going on there but from the child’s daily schedule, had an opinion on the three sensory programs and no attempt at teaching the child specific skills. Under re-examination, Dr. Konstantareas stated that she was aware of other studies on the treatment of autism, but she “thinks IBI is the one that has proven itself to be the most effective particularly for children who lack a lot of skills”.

A video of the child T. receiving IBI instruction from Eileen Bethune, T.’s instructor therapist, was shown after Dr. Konstantareus’ testimony.

Testimony of the child’s Mother

B. T. described the child’s early diagnostic history, her child’s preschool years and the child’s school history beginning at Kindergarten until the present time. With respect to her knowledge of IBI, she described the success of her client [when she worked in a group home setting for people with developmental disabilities] and the progress that this client made as a result of a Lovaas program that was delivered to her client in the 1980s.

When her child was diagnosed with autism, Ms. T. began to search out programs that might be useful to assist him and found reports in her reading and on the Internet that indicated that ABA and IBI were the same programs as the Lovaas program that her client had used in the 80’s. Ms. T. discovered that this was the only treatment plan with hard clinical data to support it. Her brother and sister-in-law ran a pre-school program in Oakville, an IBI provider, which had some children with autism enrolled in the program. Ms. T. enrolled her child in that program and drove her child and younger sibling from Barrie every day during the school year 1999-20, the year that the child enrolled in Kindergarten.

In the program, T. began to use the Picture Exchange Communication System (PECS), to help the child communicate the child’s needs to those around [the child]. Mediators funded from Special Services at Home engaged T. in play therapy and other activities such as puzzles during that school year.

The family paid for a worker, Kim Barr, to learn the program that T. was receiving and Kim Barr helped the child at home with that program and subsequently was hired by the SCDSB to be T.’s EA in the Kindergarten class. Ms. T. stated that she believed that the child was receiving an IBI program in the Kindergarten placement because she believed that the child was receiving IBI the pre-school program and the Kindergarten report card said, “pre-school program for 30 minutes a day followed by play time.” Kim Barr, the child’s Educational Assistant (EA) in the class, had received the training from the pre-school program. The Appellants were under the impression that their child would receive IBI in the Autism Pilot Project placement, the child’s placement for the Grade 2 year.

In describing her knowledge of the child’s current program, Ms. T. noted that the child has a daily schedule, has full-time EA support and receives speech pathology and occupational therapy through the school. T. receives accommodations for the child’s allergy and intolerance issues and the safety and security issues related to the child being a “runner.” The child does not have independent toileting skills.

At this time, the Appellants have hired Eileen Bethune, an instructor therapist employed by Leaps and Bounds, to provide IBI in the home for six hours a week.

The Appellants believe that IBI is the appropriate program for their child to be able to learn and to access the education that the child is entitled to. Without IBI they do not believe that T. will be able to gain skills to reach the child’s full potential.

In describing the child’s learning needs, Ms. T. stated that the child needs to be shown how to push a truck across the floor and needs to have tasks broken down into small steps with numerous repetitions before he can master a skill. She stated that she believes that the child is at a pre-school academic level.

She has observed that T. knows the alphabet, colors, and shapes and has learned numbers up to 20. The family is assisting the child in generalizing the child’s learning to the community whenever the opportunity presents itself such as at the grocery store.

Ms. T. noted that after initiating the appeal of the placement in the Autism Pilot Project placement, the atmosphere at the school was not as friendly as it had once been. The Appellants had been given the opportunity to provide input to the IEP but because there was only 15 minutes allotted to the IEP meeting, they declined to meet with the school. In testimony, Ms. T. noted that there were no academic goals written into the child’s IEP, only a self-help section, a communication section, and a behavioural section, to the best of her recollection. One annual goal was to improve the child’s self-regulation/behavioural skills, self-regulation meaning that T. would be able to self-calm when T. gets upset. Ms. T. reviewed her understanding of the “joint attention activities,” when the child is engaged with another person and teacher directed activities. As well the child was learning to demonstrate “replacement” behaviours for hair pulling, biting, and scratching.

Although Ms. T. believed that her child has made some progress in these areas, she believes that the bulk of her child’s learning has been the result of the outside therapies that the child has been provided by the parents.

Ms. T. stated that she was told by Mr. Paul Lindros, principal at the child’s school that IBI would not be included in the Autism Pilot Project because the School Board’s position was that IBI is a therapy and school boards do not provide therapy.

In describing what Leaps and Bounds provided, Ms. T. explained that Eileen Bethune, the instructor therapist delivers the program and Linda Cross, the co-ordinator, oversees the program. Ms. T. had not met nor spoken to a psychologist, but noted that Linda Cross consulted with the consulting psychologist for Leaps and Bounds on one occasion.

She described the skills that her child had mastered in the home IBI program: academic skills and life skills. She listed: letters, numbers, shapes, colours; eating with a fork; toileting; dressing; and undressing. The child can match things, has learned a number of body parts, can now maintain eye contact for three to five seconds and follow one step instructions, like, “come here” and “look at me” as examples.

Ms. T. stated that she believed that the child made some very nice gains in Kindergarten.

In summary, in her testimony, Ms. T. stated that the Appellants hope that their child will be able to lead a happy, healthy, and independent life. She stated that the family doctor wrote out a prescription stating that the child requires ABA in order to learn and develop properly. Dr. Len Levin, a psychologist with the pre-school EIBI (Early Intense Behaviour Intervention) program [a preschool IBI program funded by the Ministry of Community and Social Services, now called the Ministry of Children and Youth] said that the child definitely needed an IBI program. Ms. T. noted that the child’s level of independence would be questionable if the child doesn’t continue to receive IBI programming.

Ms. T. stated that the family had filed a complaint with the Human Rights Commission. Ms. Venhola indicated that she had advised Ms. Bowlby that she would be introducing a Case Analysis that Ms. T. had filed with the Commission and knew that Ms. Bowlby was going to object to this document. This procedural matter is found prior to the Reasons and Analysis section of the decision document.

Prior to cross-examination by Ms. Bowlby, Ms. T. stated that the child’s current placement, the one that is under appeal, is not appropriate for the child, “because he requires IBI in order to learn and develop properly to his full potential, and this placement does not do that.”

Ms. Bowlby began the cross-examination by questioning Ms. T. on the communication between the Appellants and the Board staff. She asked Ms. T. to identify the Communication Book that went home daily with comments from staff and the opportunity for parents to respond daily to staff comments. As well, she led Ms. T. through a line of questioning about the IEP and the opportunities to provide input to that document that she and Mr. T. declined. She questioned Ms. T. as to why the Appellants did not attend the IEP meeting and why the Appellants had their lawyer respond to a request for a meeting with school staff about the child’s program. Ms. T. addressed the changed relationship that occurred as a result of the initiation of the appeal process regarding the child’s placement. Ms. T. acknowledged that she had been very critical of the Board staff.

Ms. T. explained that she joined with the parents of two other children in the class and hired a lawyer to “take the Board on” over the issue of placement.

Ms. Bowlby questioned Ms. T. about a number of reports that were submitted as evidence, including a report from the Hospital for Sick Children.

Ms. T. acknowledged that the family was not using PECS consistently at home.

She said that the child was motivated by music and loved music and is involved in music therapy.

She stated that she believed that ABA and IBI can be used interchangeably. Ms. Bowlby questioned where Ms. T. got her information about clinical research about IBI. Ms. T. responded that her information came from “various organizations” and “various things online.” Ms. T. was not aware that according to Ms. Bowlby’s question, that “ the data, in fact, does not support broader outcomes such as adaptation and independent life skills and the efficacy studies on IBI are very restricted and there is not a lot of hard data or clinical data with respect to outcome”. Ms. T. stated that her information came from conferences that she attended or people with whom she spoke,

Ms. T. acknowledged that at home the family doesn’t insist that the child use a fork, particularly when the child is really hungry.

Ms. Bowlby stated that with no concrete evidence about the pre-school program that there was no way of knowing if that was an IBI program. The counsel for the Appellants noted that she would search for that document. That document was later found and entered as evidence. Ms. T. acknowledged that she never saw the child given IBI therapy in the Kindergarten class. In questioning about the Kindergarten report card, Ms. T. noted that the pre-school program was used for 30 minutes per day, but there was no mention that the pre-school program was an IBI program.

Ms. T. described her understanding of the IBI program as a program based on behavioural modification principles.

Exhibit 15, the letter and attachments from the pre-school program to Kinark, was examined and it was noted that discrete trials were not included in the recommendations and IBI was not referenced. The pre-school program was a program based on applied behavioural principles. Ms. T. noted that her child was doing very well with that program.

Ms. T. stated that she was not aware that her child had not demonstrated that the child knows either the alphabet or numbers at school. She did acknowledge that the child had never learned to print the child’s name nor was the child making commenting statements with the PECS program. Ms. T. acknowledged that PECS was not used consistently at home.

The child’s IPRC (Identification, Placement and Review Committee) documents were presented as evidence.

In redirect, Ms. Venhola asked Ms. T. whether she thought that the person paid by the family was providing IBI to the child in school and Ms. T. stated that they thought that this was an IBI program in the Kindergarten class.

With respect to the “mastery of the alphabet” question, Ms. T. clarified that she felt the fact that her child has not demonstrated that the child knows the alphabet at school indicates that the child needs to work on generalization [of the knowledge] to another environment and that the school may not be using the similar techniques that were used to teach the child the alphabet.

Testimony of Eileen Bethune, IBI Instructor Therapist

Ms. Eileen Bethune, the child’s IBI instructor therapist, or IT, explained her credentials as an IT. She had an honours degree in Psychology from the University of Waterloo and has worked for Leaps and Bound since June 2002. The child was her first client with Leaps and Bounds. She has had extensive workshops from Geneva Centre for Autism, specifically IBI, and training through a behaviourist from Durham Region. She has been providing IBI since 1995. Prior to June 2002, she was working privately doing facilitation, specialized mediation, and tutoring [for families with children with special needs]. Since 1988 she has worked with 30 children with autism.

She noted that there is confusion over the terms, ABA and IBI. She explained that in 1995, when she started, the program was called ABA and when she began her employment with Leaps and Bounds the program was called IBI. Ms. Bethune thinks, “ABA is more the principles, the analysis part of it; the IBI is the actual program that I do, the different programs, the discrete trials.”

She described T. as smiley; happy; high-need; and very engageable; loves to work; needs some down time; non-verbal; and has a lot of “stim” behaviour.

When asked how she determines the kind of program to provide for the child, she responded that the “program’s in place from my senior therapist.” Prior to Ms. Bethune getting involved with the child, Linda Cross, the senior therapist, would meet the family, observe the child, do some kind of informal testing and recommend a program based on this informal testing. Ms. Cross then gives Ms. Bethune a program binder and subsequent to that Ms. Bethune goes in to the home and conducts the discrete trials. She had never seen the informal testing results. She would begin several programs at once, for example gross motor imitation, matching, and would conduct ten discrete trials for each program. The child’s reinforcer was a “chewy.”

She described the gains that T. had made in the program that she conducted: the child has mastered imitation with objects; the matching program; dressing skills; alphabet; shapes; and colours. She explained that maintaining and generalization are essentially the same. She believes that the child has generalized matching to another setting. She is convinced that the program works for the child and she would like to see the child spend at least 30 hours a week on the IBI program. She believes that anyone over the age of Kindergarten should spend 30 hours a week [on IBI] to make really great gains.

She has had interactions with school staff in the ASD/PDD class, either “chats” or through visits that an EA and a teacher made to the T. home to observe Ms. Bethune conducting the IBI program. She stated that the school staff were impressed with some of the programs and that they were going to give some of the programs “a try.”

When asked by Ms. Venhola whether she felt that there were any other programs out there that might work as well as IBI, Ms. Bethune replied, “No”.

In cross-examination by Ms. Bowlby, Ms. Bethune said that she did not have expertise in either educational psychology or developmental psychology. She started doing IBI in 1995. Her training in IBI consisted of an initial three-day workshop in March 1995, followed by a two-day workshop that summer and then some private training. The rest of her training in IBI was gained by on-the-job training from Leaps and Bounds, and that Ms. Cross, her supervisor, provided on-the-job training and that she was with her two or three times.

She explained that she never saw the initial assessment conducted by Linda Cross and that Ms. Cross came to the T. home about every three months to make suggestions and to update the program. She acknowledged that she didn’t modify the program and that she worked her way through the binder using the basic, standard program.

With respect to the child’s understanding of the alphabet, Ms. Bethune stated that T. can pick out the correct letter from three presented letters, but that the child had no understanding of what the alphabet means, nor does the child know what the number one represents. She felt that if the child was engaged with the same work at school, that would help the child’s progress.

She explained that generalization is being able to do things in different settings and with different people. She explained the functional skills that she was presenting as dressing skills and eating skills using a utensil.

According to Ms. Bethune, T. has mastered program imitation with objects, the alphabet, dressing skills-socks, shirt, and pants. The child has been desensitized to a ball cap and winter hats. The child has mastered the numbers to 20 and the alphabet A to Z. Although T. can recognize the words, [T.], toilet, park and car, from a field of three, the child does not necessarily associate the written words with the actual thing. The child does know what “park” means.

In response to the earlier statement that if a child did not get IBI the child would not move forward, Ms. Bethune explained that she didn’t believe that the child could learn sight words or numbers without discrete trials. There are things that would prevent a child from moving forward such as cognitive ability and disabilities other than autism, stress in the environment or illness.

Upon reflection, Ms. Bowlby asked if Ms. Bethune believed that “mastered” didn’t mean the child is able to generalize, but that the child achieved a score in the discrete trials. Ms. Bethune responded that in her opinion, “That the program is mastered and we keep it running to hope to do some generalizing with it, but I refer to that as mastered.”

Testimony of B. T., the child’s Father

Mr. T. explained that he thought that the current placement, the ASD/PDD class is not appropriate for the child because he has seen how the child performed with an IBI program when the child was younger and how the child has regressed through Grade 1. He saw how much and how quickly T. was able to learn when the IBI program was introduced in the home in March 2002. He believes that the current placement is not appropriate because it is largely a sensory and occupational therapy program. He is not seeing the gains that he is seeing with the home IBI program. He added that he thinks that the child’s skill level is at a nursery school level. He believes that T.’s receptive language is excellent. He added that the child knows letters, shapes, and colours. His child is limited in the child’s ability to interact with other children and in ways to express [the child]. He believes that IBI is a teaching strategy that occurs in a one-to-one environment where the child’s attention is maintained and the child is kept quite busy. He stated that the video of the child that he took was an accurate representation of the IBI program that the child is receiving at home. He expects that IBI will be tremendous in helping the child’s skill level. He has noticed that the child can generalize things a lot faster. IBI is laying groundwork for the child to be able to learn more.

According to Mr. T., the child received an IBI program in Kindergarten. The programming was written by the staff of the child’s pre-school program and delivered by Kim Barr, the EA who the Appellants had trained at the pre-school program. The family believed that the program delivered by Kim Barr would be continued in Grade 1.

When asked why the School Board was not providing IBI in the school system, Mr. T. reported on an earlier conversation with the principal of the child’s elementary school, that the money aspect was mentioned and that it was too expensive for the Board to offer. At another time, the principal mentioned that IBI was a therapy and that was why it was not being provided in the ASD/PDD classroom. Mr. T. described the child’s regressions in Grade 1 and Grade 2. He described that the child was getting more upset, harder to calm, less focused in behaviour, and was using PECS in a fractured way to make requests.

Mr. T. noted that he understood that there was a pilot project in IBI at Ferndale Public School and although the Appellants wanted the child in an integrated classroom, they were convinced that the family’s best chance at getting IBI for T. was to enroll in the ASD/PDD class.

In cross-examination, Mr. T. acknowledged that the child was given opportunities to follow instructions for longer periods in school than the child is given in the child’s home IBI program and that he had never been in the ASD/PDD classroom. He acknowledged that he was pre-disposed to IBI because he has seen it work. Mr. T.’s letter to the editor was entered as Exhibit 18. In the letter, Mr. T. said that the child is learning to print the child’s name and through questioning Mr. T. noted that the child was not making the first letter of the child’s name.

Mr. T. acknowledged that PECS is not being used consistently at home. He disagreed with Ms. Bowlby’s suggestion that the IEPs and report cards indicated that the child had not regressed and that the teachers will testify that the child has improved in respect of behaviour, in terms of calming himself, in terms of the child’s attending and in terms of the child’s social skills. Mr. T. indicated that the child’s progress in class was linked as being “piggybacked” on the IBI home program.

Mr. T. stated in cross-examination that the child could attend for 30 minutes in Kindergarten, and because later report cards stated that the child could attend for two to three minutes on a structured task, that the child had regressed. Mr. T. referenced the use of the pre-school program in Kindergarten that Mr. T. believed to be an IBI program and read from the report card from the Kindergarten year, “The use of the pre-school program including imitating actions and following verbal instructions, has also been implemented during these play times. After 30 minutes of this program, the child has been allowed to choose where he would like to go.” From this statement, Mr. T. believed that the child has been able to focus for thirty minutes. According to Mr. T., “That’s what I get out of it. That’s what I believe it says.”

Mr. T. said that the family wanted the child to be fully integrated in Grade 1 and wanted the use of PECS, and IBI ‘like he had in Kindergarten”, and expected IBI to go on [in Grade I]. The family had bought the programming from the pre-school and had trained Kim Barr and wanted Kim Barr to be transferred with the child to the Grade 1 classroom.

Ms. Bowlby reminded Mr. T. that it was not established that there was an IBI program in Kindergarten.

In questioning Mr. T. about the nature of T.’s regression in Grade 1, Ms. Bowlby reminded Mr. T. that he had stated earlier that the child’s behaviour problems escalated in Grade 1. In examining the factors that may have contributed to behaviour problems, through Mr. T.’s testimony, it was brought out that during Grade 1, the child was ill on a number of occasions, had allergies identified, had a change in diet, and was discovered to have gluten, sugar, fruit and dairy intolerances. As well, Ms. T. was in the hospital for a period of time. Mr. T. agreed that these would be factors, but not the only factors. Other factors that may have contributed to regression could have been that work periods were reduced and the child’s frustration in getting in and out of winter clothes.

To Ms. Bowlby’s comments that Mr. Lindros, the principal who was reported to have said the he had no recollection of speaking about the cost if IBI therapy, Mr. T. responded, “That’s fine.” And to the other statement attributed to Mr. Lindros about the cost or provision of IBI therapy that Mr. Lindros denies saying “because this was outside of his scope of experience or influence”, Mr. T. responded, “That’s nice.”

In redirect, Ms. Venhola elicited from Mr. T. that in his view, that the biggest factor that would have contributed to the child’s regression during Grade 1 would have been “the withdrawal of IBI.”

Testimony of Sally Baker, Senior Therapist for the Autism Program with York Central Hospital

This testimony was carried forward from the W. Hearing. Specific references to testimony related to [the child] W. have been deleted.

Ms. Baker testified she has four years experience with children with autism. She received two weeks training in IBI at a behaviour institute, and there was an exam upon its conclusion. Ms. Baker has a BA in Sociology and Psychology from Wilfred Laurier University. Ms. Baker testified she provided instruction therapy to children in the Central East Pre-School Autism Services Program, a York Region Hospital Program with clinical supervision provided by Kinark, “…with the hope of transitioning them [children in the program] to school.”

Ms. Venhola questioned Ms. Baker on the contents of the video [for W.] and Ms. Baker described the process of discrete trials.

In her cross-examination Ms. Bowlby questioned Ms. Baker about the existence of a regulatory college or professional organization that regulates IBI instructors or therapists. Ms. Baker said there was no regulatory body for IBI at this point.

Testimony of Linda Cross, Senior Area Coordinator for Leaps and Bounds

This testimony was carried forward from the W. Hearing.

Specific references to testimony related to the child in W. have been deleted.

Ms. Cross testified regarding her responsibilities as Area Coordinator for Leaps and Bounds, for all services for Simcoe County and York Region. Leaps and Bounds offers several services, but primarily services for children with autism. It provides tutoring, ABA sessions, respite care, behaviour management, pre-school services, and IBI programs.

Ms. Cross related that she received her training to become an IBI therapist at Thistletown Regional Centre in 1985. She provided IBI therapy for three years, and then transferred to the adolescent branch at Thistletown. She then worked for the York Region School Board and had a private practice. She attends and makes presentations at conferences, including a presentation on ABA at a conference in Victoria B.C. in the summer of 2003.

Ms. Cross testified that ABA and IBI are the same thing to her.

Ms. Cross stated Leaps and Bounds believes IBI “is really the only way children with autism learn, the most effective way”. IBI is the main focus for Leaps and Bounds and that their program is delivered in their Centre-based program based in Thornhill and in the in-home program throughout the region.

Ms. Cross stated, “But every child that I’ve ever seen have [sic] made gains using an IBI program.” When asked what principles underlie the IBI/ABA program Leaps and Bounds, Ms. Cross stated “…They have to be broken down into small steps. You have to be able to analyze each child, where they are in the curriculum, to make sure that you start at the appropriate spot, to make sure that they meet the criteria for mastery on every single step before moving on. We have two psychologists that we consult with who are both experts in ABA. We make sure – sometimes they’ll change mastery criteria for a specific child depending on – on the program, on the child, but whatever the mastery criteria is, you have to make sure that they - that they meet the criteria before going onto each step. You have to be able to analyze the data, analyze the graphs to make sure that the programs are running appropriately, that the children aren’t stuck on a particular step, and if they are, what you have to do to move on. You know, have they not mastered a step before? Have they not generalized a step before? You know, do we have to change something in order to make the move on? So I think all of those things have to be present to have an effective IBI program.”

In her testimony, Ms. Cross stated, “…Typically developing children learn skills almost through osmosis, almost just through daily living. Children on the autism spectrum don’t do that. We have to teach these children, we have to teach them to learn to learn, and that’s why breaking things down into small steps, that’s what that does, it teaches them how to learn, and that’s why it’s critical that you do break down; and we break down everything from toileting skills to academic skills, to life skills, brushing their teeth, getting dressed. You know, even a dressing program that we have for our children might have 20 steps on how to put on a shoe, and these kids have to learn every single step, you know, in order to move on.”

Ms. Cross described discrete trial teaching. She stated it was a series of ten trials on any one given program. It is not the steps; it is the presentation of the program. The therapist calculates the percentage of correct responses, examines the data collection on the ten steps and counts how many times the child got the task correct, without prompts. Ms. Cross described mastery criteria as achieving 80% accuracy over three different groups of ten trials, over two days, with two or more therapists. She went on to describe generalization as, “To be able to make the skills that children learn in the discrete trial teaching a functional skill, and so that they can take that skill and they can apply it no matter where they are, no matter who asks them to apply the skill, or no matter what materials are used at any given time, that they’ve mastered the skill in a general sense.”

Ms. Cross stated a good IBI program requires a trained therapist, good programs, good supervision of programs, and good data collection. Ms. Cross said the word “intense” relates to the presentation of the trials and the entire program. She discussed how much IBI a child should have. She said a two-year old in the Centre-based program was receiving 30 hours a week and doing well. Finances often dictate how much IBI a child receives.

The Centre-based program has seven children who attend five days a week, for six hours a day. It is not a school, as there is no teacher. Ms. Cross described the IBI curriculum as having three levels: beginning, intermediate and advanced. Responding to a question on who wrote the curriculum, Ms. Cross said “…It’s a Hamilton-Niagara curriculum…. two of our psychologists were involved in writing the curriculum. There’s many people that I don’t know of that were involved in writing the curriculum.… It’s the curriculum for an ABA program from beginning to end.”

Ms. Cross stated that in her opinion it was possible to have an IBI program in the school. The school would need trained IBI people, and someone to supervise, make sure data collection is done appropriately, to analyze the graphs, and to make sure the program is running smoothly. The school would also need a space. The program would also need a psychologist who has training and expertise in ABA.

Not all children need the same amount of IBI, Ms. Cross testified, and the goal of Leaps and Bounds is to integrate children into a school settings.

Ms. Cross briefly described some of the training people receive at the Centre-based program. All staff has had some autism experience. Ms. Cross’s experience with behaviour modification while working with the school board had some similarities to IBI therapy. However, the students in the school system with whom she worked had severe behavioural exceptionalities. Ms. Cross stated she has personally conducted an IBI program with 30 clients, trains people to conduct IBI and provides hands-on-training for staff.

Under cross-examination, Ms. Cross testified that Leaps and Bounds is a privately owned company that sells IBI services and that it would benefit from a contract to sell IBI to a school board.

She testified she has a college diploma from the Child and Youth Worker program from Centennial College and has no other formal qualifications.

Ms. Cross testified her involvement with children with autism has primarily been through the provision of IBI, either doing it herself or supervising others. Ms. Cross said most of her career has been involved in delivering IBI, except for a three-year period when she was employed by the York Region Board of Education in a classroom for children whose designation was behaviourally exceptional. During that period, Ms. Cross testified, she had access to the Ontario School Records (OSRs) of the children in the class and wrote the behavioural component of the report cards and Individual Education Plans (IEPs).

Ms. Cross testified she has no additional qualification in autism, but did take courses in behavioural principles as part of her Child and Youth Worker Diploma, and is familiar with the work of B.F. Skinner (1904-1990) [psychologist deemed to be responsible for developing the Behavioural theory of learning]. Ms. Cross testified that she consults with Dr. Rincover, a consulting psychologist to Leaps and Bounds and who is an expert in autism and IBI, for guidance when she needs it. Ms. Cross testified she could, with the support of someone like Dr. Rincover, supervise an IBI program within a school, and that a teacher would not be necessary in such a program. When asked whether she would see the need for IBI therapy to be delivered in lieu of education, Ms. Cross replied she sees IBI as a form of teaching children with autism.

Ms. Cross testified she has no expertise on teaching techniques used in schools.

Ms. Cross testified Leaps and Bounds offers two types of programs: Centre-based and home-based. Parents pay $30 per hour for either, and in some cases parents pay $900 per week for a 30-hour program of IBI therapy at their centre.

Procedural Matter

Prior to accepting Dr. Boer as an expert witness, the document from the pre-school that was referenced in the Appellants’ testimony was produced and entered into evidence. Ms. Venhola explained that the document, Exhibit 20, contained:

1. the program goals for the child, with three pages describing the program that the child was engaged in at home. This was the program that Ms. T. expected the child to be engaged in through Kim Barr at school. This was Ms. T.’s understanding of an IBI program.

2. the IEP for the child’s Kindergarten year included in that Exhibit, and

3. a program summary report. Exhibit 20 describes the program intervention for the child between the periods of 1999 and 2000.

Testimony of Witnesses for the Respondent

Testimony of Dr. Marion Boer, Senior Psychologist for the SCDSB

Dr. Boer, Senior Psychologist for the Simcoe County District School Board was presented as an expert witness in educational psychology and clinical psychology. Dr. Boer has a Ph.D. in School and Child Clinical Psychology from the University of Toronto and has worked at Earlscourt Child and Family Centre as a residential child and youth worker, as a psychology intern with the Scarborough Board of Education doing standard psycho-educational work, as a psychometrist at Lakehead Regional Family Centre in Thunder Bay, and as a psychoeducational consultant and psychologist in the PDD/ASD team for the Toronto District School Board. In her roles she has had extensive experience in providing assessments and consultation to parents, teachers, and community agencies for students with a range of disabilities, primarily students with behavioural disorders. Outside the school system, she worked as a postdoctoral intern at the Hospital for Sick Children at the Anxiety Disorders Clinic.

This experience at the Anxiety Disorders Clinic had a specific application to children with the autism spectrum disorder and in helping these children deal with anxiety in the school setting, a particular interest of Dr. Boer’s.

As Senior Psychologist with the Simcoe County District School Board, Dr. Boer oversees the psychological services to the SCDSB and is the liaison between the administration and field staff. She consults with Board administration regarding research and how that applies to children with a range of exceptionalities and disabilities. She consults with the ASD/ PDD team at the Board.

She has had additional training in Systems Orienting Parenting Skills, a Rorschach Tutorial and Cognitive Behavioural Therapy for children. In her training and experience, she has extensive courses in developmental psychology and has taught developmental psychology and developmental psychopathology (how children with disabilities develop compared to typically developing children) at the college level. She is a member of the Ontario College of Psychologists, and is qualified in school psychology, clinical psychology, and educational psychology.

Ms. Venhola did not object to the fact the Dr. Boer was presented as an expert witness in school psychology, educational psychology, developmental psychology, and clinical psychology. Dr. Boer has had experience in working with children with autism but the Board did not present Dr. Boer as an expert witness who has worked exclusively with children with autism. It was noted that she does not have the clinical experience and expertise of Dr. Konstantareas with respect to children with autism.

Dr. Boer described positive behaviour intervention as a form of ABA, applied behavioural analysis that reinforces the behaviours that adults want the children to use and replaces undesirable behaviours with new behaviours, giving children a lot of reinforcement so that they will be motivated to continue with the positive behaviours that will assist in their learning or in getting along with their peers or managing the skills that they need. This approach is in direct contrast to punishment or the use of aversive techniques. Positive behavioural intervention is part of IBI, the therapy. Positive behavioural intervention is used in the ASD/PDD classroom. As an example of the use in positive behavioural intervention, Dr. Boer referenced the program that the child uses and stated that PECS is not the same as IBI.

She disagreed with Dr. Konstantareas’ statement that any children were “just being babysat” in the SCDSB and of the further statement of Dr. Konstantareas that the educational assistants “were milling around” in either the SCDSB or the Toronto District School Board where she had previously worked. She noted that she observed meaningful education in both boards. She believed that the children with autism in the Toronto DSB were benefiting even thought they were not receiving IBI. She believed that the children with autism in the SCDSB were benefiting from the program provided by the SCDSB.

With respect to the videotape of T. receiving the IBI program at home, Dr. Boer expressed concerns over what she saw. She stated that the Appellants are requesting the implementation of a full-time IBI program. From a developmental perspective, regarding a student’s ability to concentrate and take in new information and learn a new skill with normally developing students, instruction longer than 20 minutes without a break would be problematic and repeated instruction over time hasn’t been shown to be more beneficial. She stated that there is a limit to how much students can take in, how much information they can process, apply, and learn it on a daily basis.

For children with a developmental delay and those with cognitive delays, staff need to use instructional times that are appropriate to the students’ ability to understand and appropriate for their fatigue level. Generally, the adult needs to go at a slower pace. From her perspective, a full day of intense instruction would be problematic.

In addition, from the research and literature on IBI and discrete trial teaching, its primary feature, there is no clear relationship between the “dose” as measured in hours and the outcomes. In fact a smaller dose and then the opportunity to generalize that, and apply those skills had been shown to be more effective that larger doses.

Regarding the adjustment perspective, she noted some signs of anxiety in the child when she watched his IBI video. She stated that anxiety interferes with learning. Her observations [of the child in his IBI video] told her that there was increased agitation as the session went on and there was a lack of engagement or desire to disengage from the person delivering the therapy.

She hadn’t assessed the child. She was familiar with the research study publication, Educating Children with Autism, produced by the National Research Council and told us that it is a well known document among clinical psychologists and researchers working in the field of autism. She knew that because when she attended a conference on Autism in September, a number of the researchers and academics who spoke at the conference referenced this study. This study is referenced in a number of websites and through the Geneva Centre for Autism.

The conclusion of the National Research Council’s research publication on teaching children with autism was that having reviewed all the research to date [2002] there is not a clear one-to-one relationship between specific interventions and outcomes for children with autism spectrum disorder. The programs that were based on positive behaviour principles, principles of ABA, were the most effective in producing positive outcomes for children.

When asked if IBI, the Lovaas IBI, was the only intervention based on ABA principles, she replied that it wasn’t. It [Lovaas program] was one of the programs reviewed in the study. It was a well grounded model as were the other nine program reviewed in this study. At this time the authors of the study concluded that no program reviewed was better than any of the others.

She agreed with Dr. Konstantareas that the critical thing in teaching is that the ABA principles be used. She added that she is not in any way opposed to intensive behavioural intervention and stated, “IBI is a technique that falls within the paradigm of ABA….IBI is a very – is a much more traditional approach to implementing ABA principles that includes discrete trials and I believe that IBI is a very good adjunct to education, but is not education in and of itself.” “IBI has traditionally been used to target specific problem behaviours. Then it moved into developing discrete skills or very small, specific skills that would assist children in their adjustment to school or to other social settings with peers and helping them adjust in the community in general. That’s the traditional approach. All of the programs including the Lovaas program have moved beyond that to using ABA principles and teaching skills in a more naturalistic environment in a way that they are generalizable, even using incidental teaching so the skills come out naturally in a structured setting. That’s why classrooms have to be carefully designed so that we can promote the occurrence of those skills and we can then reinforce them, but that’s different than face-to-face IBI.”

She stated that, “In treatment settings where there are concerns about self-abusive behaviour or other extreme non-functional behaviours, it [IBI] is still used as a treatment approach.” The content of the video that Dr. Boer saw would not be an educational program but a treatment program. She does not see IBI as a replacement for an educational program, but a program that would complement an education program for children.

She believes that the child’s educational program should not be replaced by an IBI program because in the child’s educational program, there are a wide variety of needs being addressed such as exposure to same age peers, opportunities for integration, opportunities for physical activities, the development of communication skills, cognitive skills, and academic skills, all within a school setting. In Dr. Boer’s opinion, these are important goals for all children, including children with autism.

She added that it would not be appropriate to replace teachers and education assistants with an IBI therapist because teachers have considerable education in methods of instruction, cognitive development, child development, and special education instruction and EAs have a background that is stipulated by the Board and have exposure to the range of professionals who work in the school system while the training for IBI therapists is limited and there are no standards that all IBI therapists have to meet.

In cross-examination, Ms. Venhola asked Dr. Boer to describe the classroom where the child is currently placed. Dr. Boer replied that the program is guided by behavioural principles. Students get reinforced for the behaviours that are productive. The emphasis is on developing adaptive skills that will facilitate students’ learning and integration with respect to other students at school, the community [and] social interactions. As noted earlier it has a small adult to student ratio and the staff are devoted to instructing children who fall on the [autism] spectrum. The program is individualized, based on student needs. Students have individualized programs that address their communication needs, their behavioural needs, and their cognitive needs. The emphasis is on developing adaptive skills that will facilitate students’ learning and integration with respect to other students at school, the community, and for social interaction.

When asked about the ten programs researched in the National Research Council study, and what part of the programs are being used in the child’s class, Dr. Boer replied, that “an early intervention model …family involvement in treatment, …in terms of where families are working on treatment issues, and ….how some of those skills can be integrated into the school.” She added, “So family involvement and communication, a comprehensive approach to education that is not just focusing just on communication skills or just on cognitive development or just behaviour but looking at all aspects of the child’s functioning using applied behavioural analysis in conjunction with developmental issues and concerns…. And that the staff in those programs – there’s a very high staff to student ratio, and the staff receive training – ongoing training and support.” She described as well how ABA is used in the classroom.

She agreed with Dr. Konstantareas’ testimony regarding IBI as the best treatment in addressing the child’s behavioural needs. In redirect questioning Dr. Boer explained that statement, “Dr. Konstantareus has talked about the efficacy of IBI for severely to moderately autistic children in terms of developing specific behaviours, and so in terms of doing that, IBI has demonstrated that it can meet those objectives; however, specific behaviours don’t translate into educational success. Behaviours have to be put together and they have to be exhibited in various places over a period of time to make an individual function.”

She explained that punishment or aversive techniques are part of IBI but there was no evidence in this hearing that aversive techniques or punishment were used as part if the child’s IBI program.

In responding to Ms. Venhola’s assertion, “so your understanding then that IBI is a very discrete kind of program that’s very limited in scope of what it does?”, Dr. Boer responded, “Yes.”

In questioning Dr. Boer about her credentials and training and expertise, Dr. Boer responded to Ms. Venhola’s question, “Are you suggesting that you are in a position to be able to analyze research and make a professional – come up with a professional conclusion as to the state of the research at this point?’ She replied, “I would say, yes.”

Testimony of J.C., Classroom Teacher, Autism Pilot Project

J.C, presented as an expert witness, was the classroom teacher in the Autism Pilot Project classroom in 2002- 2003, the IPRC placement that is under dispute. Her CV (curriculum vitae) was entered to establish her as an expert witness. She has an honours Bachelor of Arts degree and a Bachelor if Education degree and a Special Education Specialist qualification. She had experience in the Upper Canada District School Board as a special education teacher before moving to the Simcoe County District School Board. She described the child’s personality in a similar manner to which other witnesses described the child and added that the child is lovable and affectionate, seeking attention from adults whom the child knows. She described the child’s program in the classroom, stating that the focus as outlined in the child’s IEP was self-regulation and behaviour, communication skills, social skills, self-help skills. Some academic skills were added at a later point in the year.

She described the progress that the child made that year in decreasing anxiety and attending to tasks for a longer period of time, from two to three minutes at the beginning of the year to ten minutes at the end of the year.

The child’s daily schedule was produced and showed that on a typical day, T. would arrive at school and begin working on self-help skills such as taking off the child’s outer clothes, hanging up the child’s backpack, and generally following a morning routine.

The students would meet for a circle time going through greetings when the students had individual tasks such as completing a calendar. At 9:15, the child had a sensory time in the Snoezelen Room, an activity that he enjoyed. After the Snoezelen Room, which Ms. T. was instrumental in helping establish, the child would start his tasks, such as the “Give me” command and the trials of “Give me” that the EA conducted. The child then worked on a tensor band and squeeze ball exercise for his fine motor skills as developed by an occupational therapist. Then the child had some exercises for gross motor skills. As well he was learning to print the child’s name using a stencil. The child would have a break and then begin painting activities at a paint station. After that activity, the child had a Lego colour match activity, a floor activity, and was given a choice for an activity and then had another break.

After the break, back in the classroom, there were gross motor skill activities with a teeter and then practice in walking down stairs, then a ball/roll catch and then an independent job, one that the child had already mastered, that the child could do without prompting. After the sorting activities, the child has a snack where the child uses self-help skills, such as cleaning up the child’s table. Then there was circle music and time to hear a story. The class did stretches and chants, labeling body parts, and song singing. Recess followed and then the child’s sensory program began. This consisted of heel cord massage and then self-help activities, which in this schedule was sweeping off the bench. The child then had activities, which consisted of cutting plastic veggies and the water table, with pouring and spraying activities. Gym was followed by lunch.

After the lunch routines, there was a quiet time and then playground time when the children went to the park. Upon return, the child had a sensory time and then an academic time when the child worked on a winter clothes puzzle, a matching activity. The academic skills consisted that day of stacking rings numbered one through five as the child was working on number recognition. After a break, the child began working on cutting skills, later a fine muscle activity of grabbing clothespins and hooking them onto a bin, a pegboard activity and a fine motor activity and a colour recognition activity. After a break, there was a roller racer activity that the child liked, followed by integration art when the child went into the Grade 3 classroom. Recess followed and another snack and then a sensory wagon recycling activity when the child loaded bins into the wagon and pulled the wagon to the recycling area. At the end of the day the child and the other children had a game.

With reference to the list of mastered activities, April 30, 2003, [from the child’s IBI home program] that Ms. J.C. received from Ms. T., Ms. J.C. stated that she had observed at school that the child improved over the year in sustaining eye contact; she did not see the child clap hands without a prompt; saw the child imitate actions – something that was worked on at school-such as imitating fine motor actions; matching; identifying familiar people-all activities that were worked on at school. At school, it was difficult for the child to identify people from a picture as was object identification. There was not evidence that the child had mastered identification of objects or body parts nor did the child consistently follow one–step commands. She did not notice that the child had mastered colors or shapes, areas where the Appellants had indicated mastery from the IBI program. The staff were not working on letters as school. At school the child did work on life skills including using utensils to eat.

Ms. J.C. stated that the child was at the lower end of the cognitive scale among the children in her classroom. She believed that the IBI program that she saw in the T. home was not suitable for the classroom because it was one method of instruction and many methods are used in the classroom. The courses that she had taken at the Faculty of Education did touch on applied behavioural analysis. Almost every skill listed in the child’s IEP and his report card is founded on applied behavioural analysis principles.

She learned about cognitive development, theories of learning, child development and various teaching approaches in her program at the Faculty of Education and in the additional courses that she took in Special Education. She uses a repetitive trial method as one of the methods in teaching the child.

She believes that the program in the ASD/PDD class where the child is placed is appropriate for the child and the most appropriate placement to meet the child’s needs.

In cross-examination, Ms. Conod testified that the child was not significantly aggressive, not unresponsive, and does not have severe medical needs that would prevent the child from attending class and engaging in the program.

In response to the questions regarding the mastered list that Ms. J.C. had received from Ms. T. during the school year, April 2003, when the child would have been in Grade 3, Ms. J.C. indicated that when she received the list from Ms. T., she looked at the list and concluded that there were a number of skills that they were still working on at school. The IEP was not amended as a result of the list. She replied that it wasn’t part of the child’s education plan to generalize all the tasks on the list. At school there was a different set of tasks. At school, the staff worked on 80% mastery with their trials before considering if the task has been mastered. The sessions were not necessarily consecutive sessions, but could be implemented over the course of several days. It was established that the trials were conducted several times a day, were part of the child’s educational program and would not be considered intensive.

Ms. J.C. stated that the kind of teaching strategy that she chose to use was based on a number of factors and was developed in consultation with a number of people who worked extensively with the child. IBI is not a teaching strategy, in her opinion, because IBI would be an entire program change. Where there were teaching strategies listed in the child’s IEP, they were there to help him learn more effectively, but were not the entire program.

Testimony of Ms. Sheri Smith, Special Education Consultant, IEP Portfolio

This testimony was carried forward from the W. hearing. Any reference to the child from the W. hearing was deleted.

Ms. Smith’s curriculum vitae (CV) was entered into evidence to establish her credentials as an expert witness in education. Ms. Smith has a three-part specialist qualification in special education and has been the (IRT) Integration Resource Teacher providing strategies for teachers with the Board to support students within the autism spectrum disorder.

Ms. Smith outlined her background, and then described the evolution of the Simcoe County District School Board’s Autism Pilot Project. The autism pilot project had been developed to meet the needs of a particular group of children with autism. It was directed at those who:

– were of primary age

– had a diagnosis of autism spectrum disorder

– had minimal awareness of their surroundings

– had no functional communication

– had stimulatory behaviour which affected their ability to learn

– had complex needs in all areas of functioning.

Ms. Smith related the development of the Autism Pilot Project classes (now called the ASD/PDD classes), and testified that the local Community Care Access Centre and the Geneva Centre had been consulted as well as many special education personnel from the Board. The maximum class size for these classes was six pupils. The child’s class began in 2001-02 with one teacher, and five EAs. In 2002/03 the number of EAs was increased to seven. Additional support was provided by an IRT, a consultant, a superintendent, and the Principal of Special Education. Within the school, support was also provided by the Principal and Vice-principal.

Ms. Smith informed the Tribunal that part of the annual training included a presentation on ABA by Janet Seymour of the Geneva Centre. Ms. Seymour covered applied behavioural analysis principles, backward chaining, breaking down tasks into small steps, ways to determine whether a child is functioning independently, and then taking the next step. The EA training included task analysis, and included role-playing to ensure they understood how to break down tasks.

The teachers in the Pilot Project classes also took this training. The initial training before the classes were started was five days, and following that it was three-five days. In addition to this the Board offered, through a university, a Special Education Qualification course in autism for twenty-five teachers over a period of ten weeks.

Ms. Smith testified the students in the Elementary ASD/PDD class have the Picture Exchange Communication System (PECS) program, and testified about training the staff received in its use. Ms. Smith said PECS is a picture exchange communication system wherein students use a visual [picture or object] to make a request, so that they can get the desired reinforcer. Students exchange a picture and receive what they requested.

Ms. Smith described PECS and the differences between applied behavioural analysis and IBI. She stated that ABA principles are present in all aspects of teaching, both in the regular classroom and in special education programs. She said, “It’s just good teaching.”

Ms. Smith described how the pilot project addressed the needs of children with autism by taking care to provide consistency, smooth transitions, and predictable routines. Ms. Smith described the various programs used to support the students to understand their schedules. She then described the self-regulatory needs of children with autism. She described the alternative curriculum developed based on the student’s need for self-regulation, self-help skills, social skills, as well as some literacy and numeracy skills. She described the classroom and the resources that have been used to accommodate the special sensory and transitioning needs of the children. She described the Snoezelen Room, a separate room that has many different items to assist the children with sensory integration. There is a ball bath, a bubble tube, fiber optic strings, musical mats, and a rocking device. All these pieces of furniture and equipment assist in soothing children with autism. Ms. Smith described integration into the regular classroom as the ultimate goal of the class, when the students are ready to be integrated. In addition to the generalized components of the program, Ms. Smith stated there was a highly individualized program for each child.

In cross-examination, Ms. Smith described the differences between ABA and IBI. She testified that ABA and IBI share the same program goals but that IBI is overseen by a psychologist. ABA is not considered clinical nor is it overseen by a psychologist. Discrete trial training in her opinion is reinforcing appropriate responses adding that any children’s computer program works on the basis of discrete trial training. Each element of the task is practised separately and reinforced until mastery is achieved. Ms. Smith testified that she sees the difference between ABA and IBI is that while both share the same theories and same elements, ABA is educational, and IBI is used as a therapy model and is conducted by a therapist under the direction of a psychologist. She testified that while outside therapists are brought into the school to provide input and consultation to teachers, and to give them ideas on strategies and steps to work on with the children, they do not work one-to-one with children.

Testimony of Linda Millhausen – Special Education Consultant

This testimony was carried forward from the W. Tribunal. Any specific reference to the W. child has been deleted.

Ms. Milhausen’s CV was entered into evidence to establish her credentials as an expert witness. Ms. Milhausen, currently a Special Education Consultant has had extensive experience in a variety of roles in special education: team leader to the autism support team; county resource teacher; and speech-language resource teacher.

Ms. Milhausen described her responsibility for the Autism Pilot Project. She became involved with the program in January 2003 and helped complete the IEPs (Individual Education Plans) for the students.

Ms. Milhausen described the staff support for the Elementary Special Education Class-ASD/PDD. Staff support included a special education consultant; a speech language pathologist; an integration resource teacher team; and two resource EAs whose job is to provide coaching and training to other EA’s across the county in effective strategies for children with autism.

Ms. Milhausen described the training that has been provided to the staff in the Elementary Special Education Class-ASD/PDD. (Exhibit 14) Ms. Milhausen testified that the Board was able to offer the Geneva Centre for Autism Summer Training Institute to their ASD/PDD teachers, some special education consultants, and their speech language pathologist. The Board was also able to provide a five-day session at the end of August for the educational assistants. In addition, the Board also provided a half-day in-service in ASD/PDD to principals and will offer it again soon for regular classroom teachers, special education teachers and educational assistants who are not currently involved in the ASD/PDD classes. For those currently working in the classes, the Board will offer in-service for the Boardmaker, and Writing With Symbols 2000 programs.

Ms. Milhausen testified that two children, who met the criteria of the Autism Pilot Project when they began it, did not return to the Pilot Project in September 2003, because they had made significant gains and were able to move into neighbourhood schools. Neither child received IBI training. Based on that and on the gains of other students as reflected in the report cards of the students, the project was deemed to have been a success.

Ms. Milhausen testified she attended a conference on Autism in 2003 at which Psychologist, Ron Leaf, made a presentation. Ms. Milhausen’s notes on this conference are included in the Appellants’ Submissions, Exhibit 2, Tab 9. Ms. Milhausen testified she saw similarities between the principles of applied behavioural analysis as described by Dr. Leaf and teaching. Ms. Milhausen related that in his speech, Dr. Leaf described applied behavioural analysis as something that has been in effect for a long time, and not just in autism but also in many venues. It comes from the school of Behaviourism, and is the application of the theory and principles of Behaviourism. An underlying premise of Behaviourism is that behaviour can be learned or unlearned. The analysis component of Behaviourism regards data as important so that a person can adjust the rewards and behaviours demonstrated and evaluate a difference in behaviour allowing the person using the system to see what is working and what is not working.

In his presentation and in reference to the Appellants’ brief, Exhibit 2, Tab 2, Ms. Milhausen described Dr. Leaf’s findings about the effectiveness of early intervention with children with autism. Factors that affect outcome, according to Dr. Leaf were: early intervention; intensity of the programming; consistency between home and school; and the quality of the intervention and cognitive ability. As reflected in Ms. Milhausen’s notes on Dr, Leaf’s session, “cognitive ability [is] half the equation.” The predictors of success for children entering the program, according to Dr. Leaf are some language; presence of aggression; and the ability to interact with the environment. According to Dr. Leaf, within six months there would be a pretty clear picture of whether the child was learning imitative responses and verbal and receptive responses.

Ms. Milhausen testified that the similarity she saw was that those principles are the underpinnings of good teaching. They are the kind of things teachers do all the time. Teachers are taught behavioural principles and strategies during their initial teacher training and throughout their careers. Ms. Milhausen said that in her opinion, applied behavioural analysis was just good teaching, good pedagogy.

Under cross-examination, Ms. Milhausen described support as, being available with resources, case conferences, liaison with outside agencies, assessing the need for in-service and training, and providing that training. She described the partnership the Board has with outside agencies to provide expertise such as speech therapy. Ms. Milhausen testified to what she sees as the differences between IBI and ABA. She testified that applied behavioural analysis is something with which she has been engaged throughout her career. It is good teaching and good pedagogy, while IBI is delivered in an isolated context by a therapist as opposed to education which is delivered by a teacher in a classroom. The principles of ABA are used by teachers.

Ms. Milhausen testified that not all children receive the same supports within the ASD/PDD class, but that they get what they need depending on where they are in their progress towards their goals. Though all students in the class meet the criteria of the program, all the children are still very different and each has an individualized program.

During this hearing, Ms. Milhausen’s credentials as an expert witness were again confirmed and she provided additional information during testimony to the testimony that she provided in the W. tribunal. She testified that of the five children attending the autism pilot project at the child’s elementary school, the placement under dispute in this hearing, all the students have made progress. One student is now attending full-time in his neighborhood school in a learning centre, a special class placement where he spends at least half his day with up to 16 students and he spends the other half-day integrated into a regular classroom. He is able to meet curriculum expectations with some support and he has made progress in all academic areas. When he began the Autism Pilot Project class, he did not have any functional speech. He recently participated in a public speaking event and spoke in front of the school using only the prompts that other students were using. This child met all the criteria for the autism pilot project when he entered the program, that is little or not functional speech, social skills deficit, severe self-regulation needs, self-help needs and socialization needs. At this point this child who is integrated in his neighbourhood school is looking out for other children in the hall and watching for their safety and he reads to younger children. This child did not have IBI therapy.

In the Guthrie School Pilot Project, [ASD/PDD] there were four students in that class and one has transitioned back to his neighbourhood school. The other three are in a learning centre placement at Guthrie School. The child who is in the neighbourhood school is in a regular Grade 3 placement with intensive special education support. Academically he is able to meet the Grade 3 learning expectations with some adult support. He had no functional language when he began the project and, in fact, hid in a box and made noises. This child did not have any IBI therapy.

There is the hope that the other children in the Autism Pilot Project class will be moving towards greater independence and into less intensive placements.

Under cross-examination, Ms. Milhausen described how progress for the children in the Pilot Project was measured individually for each child using the IEP, noting that the progress of children in the Pilot Project was described in C. and is part of the record in C. v. Simcoe County District School Board, September 15, 2003 (2003 ONSET 3). In response to questions Ms. Milhausen noted that all children in the Pilot Project met the criteria to enter the program, that of: “a diagnosis of autism; severely compromised functional language skills as in nonverbal; severe self-regulatory problems that impacted on all learning; and complex skills overall”. Specific details that might identify a child were conducted in a closed portion of the Hearing to protect the possible identity of any child.

In redirect, Ms. Milhausen responded to counsel’s question of the benefit of the program by stating that she believed that the program was beneficial to all the children in the program.

Testimony of Briar Galloway – Integration Resource Teacher

Ms. Galloway’s CV was entered into evidence to qualify her as an expert witness and she described her education and background. Ms. Galloway has a B.Sc. (Hon) in Psychology and Biology, a B.Ed., and a M.A. in Educational Psychology and Special Education. She has her Special Education Specialist qualifications, Part 1, 2, & 3. Ms. Galloway has been with the Simcoe County District School Board since 1990, and was the Integration Resource Teacher for the Autism Pilot Project. Ms. Galloway is the Integration Resource Teacher (IRT) for the child’s current class.

Ms. Galloway testified she was involved, with others, in preparing the child’s current IEP.

Ms. Galloway described the physical classroom and the equipment it contains, and described the composition of the class as having five students, one teacher and six EAs.

Ms. Galloway testified she reviewed the child’s OSR, and looked at the minutes of the Special Needs Committee to prepare the child’s IEP, as well as meeting with Sheri Smith, the previous IRT.

Ms. Galloway testified the goal of the team was to develop a predictable, consistent schedule for the child for every day, and an overview for the week. The team wanted to incorporate intervals during the day for table tasks to deal with their concern that the child appeared to have lost some of his earlier skill at using a fork.

Ms. Galloway described the program devised to support the child in the classroom, and described how the program was adjusted throughout the year to reflect changes as he learned and changed. From the child’s Grade 1 year she said she has seen significant progress, particularly in the reduction of socially inappropriate behaviour such as hair pulling, biting, scratching and pinching. The child now has a lower level of anxiety in the school environment. The child is now able to attend to tasks for 10 to 15 minutes and to complete some tasks without adult assistance. In her opinion, this is significant progress.

Ms. Galloway referred to an IEP which was amended to address concerns raised by the Appellants. She testified the child made gains in all of the child’s goals. The child is much better able to regulate the child’s anxiety levels, and is able to complete tasks independent of adult assistance, something the child was unable to do when she worked with the child in the Grade1 year.

Ms. Galloway testified that in the area of social skills, the child is engaging in simple turn taking with familiar activities, and that the child is able to demonstrate joint attention with a familiar peer. Ms. Galloway said this was a significant gain not only from the child’s Grade 1 year, but from early in the child’s Grade 4 school year.

In terms of self-help, Ms. Galloway testified that the classroom teacher (Erica Mount) has told her the child is able to toilet independently once the child is in the bathroom. This is a goal that staff have worked on through the years.

Ms. Galloway testified that in regard to the child’s communication skills, the child is able to consistently respond to one-step instructions from familiar adults. The child is becoming more consistent in responding to greetings by unfamiliar people with adult assistance. The child is also beginning to understand the process of a visual schedule.

Ms. Galloway described the visual schedule. It is made of either photographs or pictures created from Boardmaker. The schedule indicates the job expectations at a particular time and the student peels off the picture of the task and puts it in the “done” basket when the task is completed. Ms. Galloway said the child would sometimes peel off all the stickers when the child wants to avoid the work. This shows, she said, that the child understands there is something to the schedule and that the child’s work is done when the stickers are peeled off.

Ms. Galloway described the child’s progress in academics. the child’s fine motor skills are improving. She said, the child is able to hold a pencil and is developing some pre-cutting skills. She testified that in the area of communication, the child has made gains, but not to the same extent as in the other areas.

Ms. Galloway was asked if she had concerns about what she saw on the video of the child doing IBI therapy for academics. She testified she has concerns involving teaching isolated skills without the opportunities to generalize these skills to naturalistic settings. She noted that the child appeared to have a heightened level of anxiety during the IBI session. The video appeared to show only one teaching method (IBI) rather than using a variety of teaching strategies. She stated she would have concerns over the extended time period spent on this one-to-one instruction were it done with a typically developing child, and that these concerns were heightened because such a method would be less conducive to learning for a child like T. who is not a typically developing child.

Ms. Galloway stated she did not see in the video where the material the child learned was being applied in any naturalistic setting. She said the child is still learning symbolic representation, so for the child to understand that a picture of a crayon represents a crayon is a challenging skill, and to identify a letter is an even much more abstract concept, particularly a letter in isolation.

When asked whether she thought the child would benefit from a full day of IBI instruction, Ms. Galloway said she did not. Ms. Galloway said she disagreed with Mr. T.’s view that the child’s progress is attributable to IBI, and that in her view it is the school program outlined in the IEP that is responsible for the progress the child is making.

Under cross-examination Ms. Galloway was asked whether she noted any regression in the child. When she replied she had, Ms. Galloway was then asked whether the Appellants were advised of the regression. Ms. Galloway said she did not notify the Appellants herself, but the normal course of events would be to inform Appellants if there had been changes observed in the child.

Ms. Galloway testified the changes to the IEP were additions made at the request of the Appellants, and included a list of things to which the child is allergic, and the addition of discrete trial teaching to the strategy section in the self-regulation behaviour plan. Ms. Galloway said the addition was made as a way of investigating and tracking antecedent behaviour to create change in behaviour.

Ms. Galloway described discrete trial teaching as presenting a task demanded of the student, and allowing the student to respond. There is also planned immediate feedback, which in the child’s case was typically social praise. Ms. Galloway testified the discrete trials were integrated throughout the day with a number of opportunities to use a verbal demand or response and positive reinforcement.

Ms. Galloway testified that what she saw on the video of T.’s IBI session appeared to be using the strategy of discrete trial teaching. The difference in how it is used in the classroom, she said, would be the kinds of verbal tasks requested. In the area of self-regulation, for example, the child would be instructed to “get your coat” in the context of going out to recess.

Ms. Galloway testified she couldn’t distinguish whether gains T. has made this year are attributable to the use of discrete trial teaching or due to the variety of strategies and accommodations that are provided within the child’s program. Ms. Galloway testified her understanding of IBI was limited to some professional reading and that she did not have enough knowledge of IBI to comment on whether it would be used to improve skills, whether it was only what she saw on the video, or whether it [IBI] includes speech pathology, occupational therapy, or music.

Ms. Galloway was presented with Exhibit 23, the child’s list of mastered skills from the IBI program. She testified she had not been provided with the list during meetings with the Appellants and was not aware that the child had mastered all the items listed.

Ms. Galloway was presented with the child’s Kindergarten report card and asked to read aloud sections from it that stated T. was working on a particular task for up to half an hour. When asked, Ms. Galloway testified she could not comment on this report as she did not know what activities the child would be doing for those 30 minutes, or what the Pre-school program is. Ms. Galloway testified the child is currently able to sit for a period of 10 to 15 minutes before being provided with a break. Ms. Galloway was asked to read further portions of the report card, and then questioned about whether the child was doing more in Kindergarten than the child currently does. Ms. Galloway testified she would not draw that inference that the systems being used (and visual schedules) were different and thus referred to two different concepts.

Ms. Galloway testified to her role with the child in the classroom. She said her job is to support the teacher and discuss the child’s progress with her. She would also discuss the child’s progress with Tracy Hunt, the Speech Language Pathologist, and with Laurie Davies, the Occupational Therapist. She would also observe T. in the classroom.

Ms. Galloway was asked whether there was anything she would know of that would prevent her from adding the IBI program into T.’s IEP. Ms. Galloway testified she takes her direction from the School Board and the plan that’s outlined within the school system, which is to use an eclectic approach to meet the student’s needs. She said she did not recall a specific conversation where it was indicated not to use IBI. She agreed an IEP lists the special programs and special services that are appropriate for a child so that the child can reach the goals of the IEP, that accommodations must also be made for the particular child in the IEP, and that the accommodations must be appropriate. Ms. Galloway said to determine what is appropriate the staff takes into account a student’s strengths and needs and then plans programs to move the students through [these programs] and teach the students new skills appropriate to their developmental levels so they can achieve their personal potential. She agreed one of the goals for the children in the class would be to promote independence and independent living within the community including participation in the community, social interaction with others, and to learn academically as best they can.

In re-examination by Ms. Bowlby, Ms. Galloway was asked to clarify whether the child has been performing at a higher level in his Grade 4 year than he was in the child’s Kindergarten year. Ms. Galloway testified that after reviewing the entire report card there are definitely areas in which there was documentation that the child was experiencing significant difficulty in Kindergarten, particularly around the area of behaviour. She pointed to the statement on stopping hair pulling that said “it will continue to be a challenge for the next term.” Ms. Galloway said that the staff is not seeing the behaviours that the child was demonstrating in Kindergarten with any frequency, referencing T.’s hair pulling behaviours as no longer an issue now that T. is in Grade 4.

Ms. Galloway was asked how many IEPs she consults on during a school year, and she responded that it was over 100.

Testimony of Jeannette Schieck, Principal of Special Education

Ms. Schieck was called primarily to give Ms. Venhola the opportunity to cross-examine this witness.

Ms. Schieck’s CV was entered to establish her as an expert witness. She has a Bachelor of Arts degree and a Master of Science degree in Educational Administration and additional qualifications as a supervisory officer, specialist qualifications in Special Education and has been principal of Special Education for the Simcoe CDSB since April, 2002.

Ms. Schieck clarified that the Board contracted with an outside agency, Bartimaeus, to provide some support, and ABA was discussed as a possible component of that support, to one particular student at Ferndale Woods P.S. Bartimaeus was asked to assist the Board in resolving some behavioural issues with this child and to help get those behaviours under control. Dr. Rincover, a psychologist for Bartimaeus, provided a protocol that involved aversive techniques for the student’s behaviours. That protocol was provided by the Bartimaeus staff in collaboration with Board staff. Discrete trails were used by Bartimaeus. This was not a pilot project but was an attempt to address one child’s needs. Some parents appeared to consider it otherwise.

In cross-examination, Ms. Schieck stated that it was her understanding that if IBI was available it would be done by Leaps and Bounds which had a two-pronged relationship with Bartimaeus. She told the Tribunal that it was clearly stated in correspondence with Bartimaeus that once the behaviours of this child were under control, the Board believed that it had the expertise to provide programming for the child. She stated that it wasn’t discrete trial teaching that “fixed” the child’s behaviours, but rather the aversive techniques that were used by Bartimaeus staff.

When asked if IBI was being provided in any school within the Simcoe County DSB, Ms. Schieck said, “No, not IBI.” She went on to say the Board does use some of the strategies within IBI and does use discrete trial teaching.

The Board would not use the IBI program as an insular program because, “The fact that it is a self-contained predefined work from the beginning to end is not the sort of programming strategies that we use. We do look at the individual needs of the student and develop a program based on his or her needs. Prepackaged programs don’t work very well for individual students.”

A discussion regarding applied behavioural analysis and positive behavioural intervention followed.

In response to a line of questioning about the ten programs referenced in the National Research Council study published in its book, Ms. Schieck noted that, “what we do is draw the best possible strategies from all of the pieces that are available to us and we incorporate them and we adjust them and we change them as the student’s needs change, as the situation presents itself. So the piece that moves it into or out of education is how prescriptive it is.” She went on to say that, ‘IBI is very prescriptive.”

With respect to the line of questioning about the Board’s role in not providing therapy to students, Ms. Schieck noted that under Section 20 of the grant legislation, the section of the legislation that describes the funding of care and treatment centres, there is a reference to therapy and that the Board is not mandated to provide therapy. When asked about any legislation that Ms. Schieck was aware that excludes therapy from being provided in education, Ms. Schieck referenced, Program/Policy Memorandum No. 81 [on health supports in the school setting where health supports are provided by the Community Care Access Centres.]

When asked if the Board had done an evaluation of IBI, Ms. Schieck responded that the Board had evaluated it, but not in isolation. The Board evaluates every strategy to determine whether the Board would include elements of it or not. Every strategy that comes to the attention of the Board is evaluated on its merits regardless of who developed that strategy and it is looked at on its own merits. The test is whether the strategy is appropriate and helpful.

She concluded her testimony by stating the program that is being provided to T. works.

Testimony of Tracy Hunt – Speech and Language Pathologist

The first part of this testimony was carried forward from the W. Tribunal. Any testimony specific to the W child has been deleted.

Ms. Hunt’s CV was entered into evidence to qualify her as an expert witness and she described her education and career background. Ms. Hunt has credentials as a qualified teacher with an honours degree in psychology and a Bachelor of Education degree. Ms Hunt has a Master’s degree in Speech Language Pathology and is a member of the College of Audiologists and Speech Language Pathologists of Ontario. Ms Hunt is also an IBI therapist. Ms. Hunt is currently employed with the Simcoe County District School Board as a Speech and Language Pathologist with the Board’s Autism Support Team. She has a certificate in the PECS system at Level 2 and attended the Geneva Centre Autism Training Institute in 2003. She has extensive background training in autism and has worked with many clients with autism. Ms. Hunt testified that in her previous employment as a speech language pathologist, she had worked with many children with autism who were using IBI therapy. She herself received about 10 weekends of training in IBI, has had hands-on training, and has delivered IBI therapy.

In her new position, Ms. Hunt testified, she offers consultative services to the teachers in the elementary special education classes, but provides no hands-on support to the students in any of the classes.

When asked what she sees as the difference between IBI therapy and the educational program being provided in the classroom, Ms. Hunt testified that IBI is a therapy under the auspices of the Ministry of Community and Family Services, overseen by a psychologist, and performed by instructional therapists. ABA is the applied behavioural analysis theory and practice, upon which IBI is based. It, [ABA] is a set of good teaching practices of task analysis, finding out where the child is and prompting, reinforcing, shaping, and molding responses to move the child along a continuum.

Ms. Hunt described the principles of applied behavioural analysis as breaking down the tasks and repetitively going over them so that a child can understand what is expected of him, as somewhat the same as a discrete trial, though a discrete trial gets very specific in terms of a decision made ahead of time on how many repetitions will be done. IBI is usually conducted in blocks of 10, but in the classroom she would not know precisely how each activity would be determined.

When asked about other differences between IBI and ABA, Ms. Hunt pointed out that the Ministry of Community and Family Services [currently the Ministry of Children and Youth] funds IBI, and the programming needs to be overseen by a psychologist and conducted by an instructional therapist. In the classroom, a teacher and educational assistant are carrying out programming. Ms. Hunt affirmed that typically, IBI doesn’t focus on functional settings, but is done in isolation. The difficulty, she pointed out, is that often if you teach a skill in isolation, sitting at a table, a child will learn that skill in that setting, but will have to learn it again in a generalized setting. Learning a skill within a functional activity gives true meaning to the skill, why the child is learning it, and why the child needs to perform it. Learning a skill in isolation, she noted, is essentially a form of rote learning. Although the methods taught in the schools may take longer, these methods have depth and are a foundation for future learning.

As well, Ms. Hunt testified, teachers are overseen by the Ontario College of Teachers, which developed specific Standards of Practice for the Teaching Profession. Working within the schools are other regulated professionals such as speech pathologists and psychologists, professions that are governed by colleges or regulatory bodies that have standards and regulations.

During the T. Hearing, Ms. Hunt’s credentials as an expert witness were reconfirmed. Ms. Hunt is a member of the Autism Support Team and provides support to students on the five ASD/PDD classrooms. She runs training programs and in-service sessions for educational personnel. She commented that the book, Educating Children with Autism produced by the National Research Council is very widely known to speech pathologists, and educators around the province.

At the Autism Conference that she attended in September 2003, educators were told that there are a wide variety of teaching techniques and strategies and that a combination of strategies is required for the most effective teaching for children with autism. According to Ms. Hunt, this message is the same as in the research report from the National Research Council.

She visits the ASD/PDD class for T. a minimum of a half day every two weeks and was involved in developing his IEP for this year.

In describing the child she provided her description of T. as “a very happy [child], very affectionate and seeks of the attention of familiar individuals; very active, does display higher anxiety which [the child] needs to deal with, and obviously displays great needs within the five areas outlined on the IEP.” She added, “[the child] displays significant communication needs, both receptive and expressive, so both understanding of language that is spoken to the child and expressing the child’s wants and needs.”

In explaining the PECS system she stated, “It’s the idea of a child exchanging a picture or a representation of an item or object to get that item in return. The higher level of PECS actually look[s] at using the system for commenting. But it means there’s a representation for words within the spoken language.”

Ms. Hunt has PECS qualifications as described in her testimony for W.. She noted that when she first observed T. in September [2003], he was able to put pictures down onto a sentence strip standing for “I want” and another item, pulling off the sentence strip and handing it to an adult within the classroom to request a food item or an activity but T. was not able to discriminate between the pictures and was not understanding what an exact picture stood for. T. couldn’t match the picture with an item. Now, however, T.’s appropriate use of PECS has increased. Ms. Hunt attributes that change to initially analyzing where T. was within the system, providing training sessions to the teacher and EAs and then guiding them though the process in the classroom. She stated that consistency was crucial in working with a child within the PECS system. She elaborated that “PECS is based on the idea that you are changing a behaviour so that instead of a child just reaching for an item… or leading you to the item…, you want to bring him up to the level of communication of being able to request the item so that if it’s not within view of the child or within the environment, the child’s still able to ask for it.”

Ms. Hunt disagreed with the speech pathologist at the pre-school program and Ms. T. in letting PECS give way to a different way of communication. She noted that once an augmentative form of communication such as PECS is introduced, people need to be consistent because the adults are changing the child’s initial behaviour to a new one.

She listed the changes that she has observed in T. since September by starting with the greatest area of change, that of self-regulation behaviour of calming. T. is able to sit and work for 10 to 15 minutes instead of three to four minutes that the child could work at the beginning of the year. T. is requesting things to calm, such as using PECS to request a “chewy.” T. is doing this without prompts. T. has made gains in socialization in that the child is responding to greetings from familiar people. The child gives eye contact when T. hears, “Hi, T.” The number of inappropriate behaviours such as hair pulling, biting, scratching, pinching have diminished to the point that they are rarely seen. Regarding self-help skills, T. is more independent at lunch and at snack routines. Matching skills have improved so that T. can match identical objects and photographs. It is still a challenge to match non-identical photographs with objects. Ms. Hunt believes that there has been huge progress for T.

In describing the use of applied behavioural analysis principles used for students in the ASD/PDD class, Ms. Hunt noted that she has observed those principles being used.

She told the Tribunal about her experience as an IBI therapist when she was a speech pathologist in Sault Ste. Marie. Her training for IBI amounted to 240 hours of training and she delivered IBI therapy herself. She stated that in IBI, there are modules, pre-packages modules that are followed by the therapist. The therapist did not have the flexibility to change the modules to meet the student’s needs.

In describing the education program delivered in the ASD/PDD class compared to the IBI program, Ms. Hunt said, “ The education provided within the classes are (sic) holistic and incorporating numerous teaching strategies of which discrete trials are included. There’s also teaching within naturalistic settings, in essence, kind of milieu teaching, teaching in the moment; teaching within activities of daily living, and using principles of ABA, so task analysis, breaking skills down to their smallest component and then positively reinforcing the responses you wish to see and shaping and moulding the incorrect responses.”

In response to questions about Exhibit 20, the pre-school program, after reviewing the goals contained for T. in that documents, Ms. Hunt stated that this was not an IBI program. She said that this document contained a list of skill sets.

She made a number of statements explaining some concepts in IBI, such as mastery. She stated that in IBI, mastery means that a child can respond with the response that has been targeted which does not mean that the child who is receiving the IBI therapy has understood the concept and can generalize that skill to another environment outside the therapy environment.

In describing the process children use to learn letters, precursors to language, Ms. Hunt stated that T. is at a developmental level where there are a lot of skills that would come before letter recognition. For example, there is a hierarchy of symbol representation in which objects are first, then miniature objects, then moving to colour photographs, the black and white photographs and the coloured line drawings and then black and white line drawings and then actual letters and written words. T., in this hierarchy, is still working on object identification.

Ms. Hunt thought that T. demonstrated anxiety by not maintaining eye contact, not looking at the materials, and by some giggling. She believed that the tape did not show that T. had mastery over the skills being demonstrated on the tape in the video that we saw of the child in the IBI program. Ms. Hunt stated that she saw periods of anxiety when T. was trying to disengage from the activity to move away. She stated that the child was pointing in response to a directive without looking. Sometimes the child pointed without waiting for the directive to be competed. T. had a tendency to point to a centre object in a row of three responses and there was no real way of knowing if the child really knew the correct answer or was guessing. The order of the objects should have been changed to avoid this tendency to point to the centre and to avoid guessing. She believed that these skills were not developmentally appropriate for T. because for the child’s level of development there would be a number of precursor skills to be used before those we saw on the video.

She stated in response to questions that IBI was not an appropriate program to meet T.’s communication needs and that the appropriate placement for the child is the ASD/PDD class, the child’s current placement.

In cross-examination, Ms. Venhola asked what was missing in the Pre-school program, Exhibit 20 that would make it an IBI program. Ms. Hunt responded, “I think IBI speaks more to the delivery method, sitting one-to-one with an instructor therapist, going through – and very restricted discrete trials and keeping data according to that.”

When asked how she could determine T.’s developmental level, Ms. Hunt responded that she had numerous courses through her undergraduate degree in psychology in child development and developmental skills, in educational psychology, in courses within the teachings in her Bachelor of Education program and classes on child development within her Masters of Speech Language Pathology program. She added that a person needs teaching and training to be able to tell what stage a child is at cognitively.

She believes that an IBI instructor would not be able to determine a child’s cognitive level because developmental stages within childhood and adulthood are not covered in IBI training. In responding to a line of questioning on T.’s ability to read a word and associate a word, Ms. Hunt replied that reading implies that a child has associated a word with an object for example that a child could associate a written word with “chips”. She elaborated that reading implies that a child can look at a combination of letters and know that it means “chips’ or goes with the item of “chips”. She explained that at school, T. is learning the first letter of T.’s name so that T. can sign onto a program on a computer, so the child is not actually learning keyboarding skills. She explained that visual discrimination is developed through skills that are precursors of reading such as matching and sorting activities. This work is carried out by the teacher and the educational assistants.

When asked to describe the difference between the PECS program and IBI, Ms. Hunt explained that “they are created by two entirely different sets of people, that PECS is actually not a system that works on complete discrete trial[s]. It is actually not based on the initiation of a child. For example, within the discrete trials in IBI, the instructor gives a direction and the child follows. Within the PECS system, it is the reverse. The child actually initiates the communication…. They are actually two different teaching methods.”

In describing IBI, Ms. Hunt stated that “IBI is based on the idea that you give a directive and the response – the child responds, and then you shape or mould that response into the correct one.” She further elaborated, “IBI is carried out by the IBI therapist. It’s usually the strict sense of programs that are carried out in a one-to-one setting working towards mastery criteria. Some programs, depending on who oversees them or develops them, will start to plan in ways of getting at generalization and generalizing the skills beyond the one-to-one setting.”

A line of questioning about T.’s skill development in using a fork continued with questions about why such an increase in skill did not appear on the report card.

In explaining how the report card was written, not something that Ms. Hunt did however, Ms. Hunt stated that there are overall goals and that T. is making progress in the child’s overall goals and is progressing towards independence within those overall goals. Broad skills are listed in the report card.

In explaining why Ms. T. sees certain skills at home that are not demonstrated at school, Ms. Hunt explained that children with autism have difficulty with generalizing and that to generalize to another area is an immense task for T.. Generalizing from a home environment to a school environment is a big leap for T..

In response to how the school bridges the gap in terms of generalization, Ms. Hunt replied that the school uses good teaching practices: teaching the skills; breaking skills down to the smallest steps figuring out where in this case T. is on that skill list; teaching towards the next step; both reinforcing the responses that the teacher wishes to see; and shaping or moulding the incorrect responses.

In response to why IBI would not be an appropriate program for an educational strategy for T., Ms. Hunt replied “I think that (IBI) is too limiting and restrictive. It’s one teaching strategy, the underlying principles, the ABA as such which is being used within the classroom. I see the classroom as a really rich environment for learning. There’s (sic) lots of opportunities to work on generalizing the skills that they are working on. Just the set-up within the classroom of having that number of educational assistants and then being able to rotate around and work with other students is just bound to continue to foster generalization.’

She continued to elaborate by saying that children with autism require a multitude of teaching strategies. The conferences she has attended and the literature she has read indicate that all the strategies combined will give the best outcome and the best learning opportunities for the child. She stated that “discrete trials have a place, however, research has shown that generalization can be an issue with it; that depending on how it is carried out, the children can become cue dependent for skills …A child may be able to communicate within the moment and the activity that is taught, but again then the huge generalization to use it spontaneously is difficult.”

In response to a request for the meaning of “discrete trials”, Ms. Hunt responded, “Discrete trials mean you are looking at one particular skill. So long as you’re keeping data or the teaching strategies to that one particular skill, you can spread out the time that you are doing it in. It means that you’re assessing the one skill and teaching towards it at a time.”

Testimony of Joan Fullerton – Superintendent of Student Services

The first part of this testimony has been carried forward from the W. hearing.

Ms. Fullerton’s CV was entered into evidence to establish her qualification as an expert witness. She testified that as Superintendent of Student Services, she was responsible for curriculum development and supervision; ESL (English as a Second Language) and Special Education programs and services. In addition to her qualifications as a supervisory officer, she has specialist qualifications in Special Education and extensive involvement in Special Education.

When asked why she did not have the school staff provide IBI, Ms. Fullerton testified that it is a therapy, which is provided by other agencies, not by educators in educational settings. Educators provide education. Ms. Fullerton noted that applied behavioural analysis would be part of the curriculum at a faculty of education. Ms. Fullerton described the Ontario College of Teachers as the regulatory body that established the Standards of Practice for the Teaching Profession. Principals who supervise teachers are also bound by the Standards of Practice for the Teaching Profession and are members of the Ontario College of Teachers. Under the Quality in the Classroom Act, (now part of the Education Act) all teachers must have a formal teacher performance appraisal every three years. All teachers and principals have acquired an undergraduate degree and then a Bachelor of Education degree and then additional qualifications can be acquired.

When asked why the Board did not provide an IBI placement as requested by the W. family, Ms. Fullerton replied an IBI placement would not be available as it is not an educational placement. Educational placements are supervised by the Board and taught by a teacher. The placement proposed by the parents, [IBI] is not [an educational placement].

Ms. Fullerton described IBI as a therapeutic program that is designed by a psychologist and delivered by a therapist. She noted there is data collection, and the psychologist must approve changes to the program. She stated that an educational placement is regulated by the Education Act, taught by teachers and supervised by principals.

Ms. Fullerton said she would agree there is an element of instruction in IBI. She testified that teachers would use behavioural instruction and behavioural modification, but not in the same way as in IBI. A teacher would look at the classroom routine and modify it to create a routine that would elicit the desired behaviour. Teachers do not provide behavioural modification as a stand-alone program. Ms. Fullerton said a teacher would modify how she/he organizes the day to create an orderly flow within the classroom. That is behavioural planning. The teacher would focus on what behaviours are desired and develop a plan to achieve them. The Board does not conduct IBI at all, as it is not within its mandate.

Ms. Fullerton testified that provision of IBI is outside of the Board’s mandate, and when asked how she knew that, she answered that she is a supervisory officer of the Province of Ontario and with that qualification is responsible to her employer, the Simcoe County Board of Education, and to the Ministry of Education for the implementation of its legislation. In order to earn her certificate as a supervisory officer, she was required to study acts, regulations, and statutes and how they apply to education. She has been certified by the Ministry of Education, so that her knowledge, experience and qualifications permit her to speak on behalf of the Board. Ms. Fullerton was then asked whether she knew of Ministry legislation or regulation that prohibited provision of IBI, and she directed the Tribunal to Exhibit 26 in which the then Ministry of Community and Social Services (MCSS) Minister Brenda Elliott, spoke of her Ministry’s commitment to provision of IBI to children at an early age, until the age of six years. Ms. Fullerton said that exhibit indicates provision of IBI is an area of responsibility for that Ministry. Later, the same Ministry of Community and Social Services (MCSS) document references that “Elementary school-aged children will also have out-of-school programs available to them that are focused on developing and improving social interaction” which also indicates which Ministry will be in charge of IBI or social programs. Finally, the document mentions the Ministry of Education for the first time while stating that the Ministry of Education will pilot Autism Program Standards so that teachers and School Boards around the province can help teachers learn about new approaches in teaching children with autism.

Ms. Venhola then asked Ms. Fullerton about the role of the Office of Integrated Children’s Services, to which Ms. Fullerton replied that the intent of that office is to coordinate “a service delivery in all aspects of a child’s life.” Locally, there is a Simcoe County Coalition for Children, Family and Youth, where all service providers come together on a regular basis to coordinate the services and programs between health, family services, and education, and so on. There are many members of the Simcoe County District School Board who participate in that committee. Participation in this committee does not change each organization’s own mandate.

Testimony moved to the role of registered psychologists within the Board, and Ms. Fullerton said they had several roles, most importantly to provide educational assessments for children for whom there are questions around the delivery of educational programs. Psychologists would communicate those assessments to both staff and parents. Based on the results of those assessments, the psychologists would also provide advice on educational programming. Similarly, the speech pathologist or occupational therapist would make an assessment, pass the results on to the educators, and provide advice. These professionals do not conduct therapy within school settings. They would, if necessary, engage in a referral process to a community service. They hold a supervisory capacity for assessments and diagnosis, but not over education staff.

Ms. Fullerton was asked where families would turn if they feel that IBI is the best programming for their child. What are their options within the school system? Ms. Fullerton replied that there are some young people in the Province for whom care and treatment needs are greater than educational needs at a particular point in their lives. The Province has many Care and Treatment Programs, often called a Section 20 program throughout the province. Ms. Fullerton indicated she holds responsibility for Section 20 programs in the Simcoe County District School Board and within those programs are partnerships with other ministries, with the school board playing a role. A Care and Treatment Program can occur without the involvement of Education, she said, but an education program cannot occur without a teacher. To her knowledge there is no Care and Treatment Program in Simcoe County that is providing IBI therapy. The decision to develop such a program would have to be initiated through the Ministry of Community and Family Services (currently called the Ministry of Children and Youth Services) or another relevant ministry [other than Education which cannot initiate a Care and Treatment Program]. A treatment program for a student with severe mental health problems is an example of a care and treatment program. Some care and treatment programs have residential placements. The School Board could not place a child in a Section 20 class, but rather such a placement would be a suggestion by the agency that controls intake and discharge. As well, the child’s suitability for the program and ability to participate in education would be determined by the treatment staff, not the educational staff. When students are admitted to a Section 20 Program those students are removed from the school roll of the School Board because they are enrolled in non-school board facility.

In cross-examination, Ms. Venhola asked Ms. Fullerton to further explain the role of Physical Therapy, Occupational Therapy and Speech Therapy services in schools. Ms. Fullerton explained that speech pathologists working for the Community Care Access Centre provide speech and language to school aged children by suggesting accommodations that can be provided in a classroom setting. As an example, Ms. Fullerton described how a speech language pathologist would help a teacher implement a communication system for a child in the classroom. Special Education involves modifications and accommodations. When a student’s program has been modified to such a degree that it is no longer based on the Ontario curriculum, such as T.’s, that student is being taught an alternative curriculum. When speech pathologists and occupational therapists and other are involved, these are part of the accommodations made to the “environmental pieces and other pieces of the teaching strategies for that child.”

When asked if a teacher or EA would ever perform any kind of occupational therapy such as leg stretching or muscle stretching, Ms. Fullerton testified that they might, but that such action would have a context in Physical Education, which is a required element of education in Ontario.

Ms. Venhola made the point that if discrete trial teaching is part of the educational program of the autism class, much like the PECS program, and it is delivered to the child, it could also be an accommodation. Ms. Fullerton testified that if Ms. Venhola was referring to discrete trial training within IBI it would be neither an accommodation or a modification, but a therapy. Ms. Fullerton expanded her answer by adding that there are many examples of discrete trial training within schools with Reading Recovery being one of them. The teacher would set a goal and “backward chain” to figure out where the child is, and then develop a program for reading education. Discrete trial training within the context of IBI has a different construct attached to it than the kinds of teaching strategies that are used in classrooms.

In the T. tribunal Ms. Fullerton was called as a witness during this hearing primarily so she could be cross-examined by Ms. Venhola. In addition to the evidence given during W. that will be relied upon in this hearing, the following is additional evidence given by Ms. Fullerton during the case regarding T..

Ms. Fullerton expressed concerns about some of the comments made during Dr. Konstantareas’ testimony. Ms. Fullerton stated that she believed Dr. Konstantareas’ comments inflamed an already difficult situation between the parents of children with special needs. In particular, she referenced Dr. Konstantareas' comments about the “schools babysitting children”; “misguided attempts at intervention”; “not enough educational assistants”; and “educational assistants milling around”. Ms. Fullerton said that she found the comments “extraordinarily disheartening” and “singularly unhelpful.” [in developing a positive relationship with the parents.]

Ms. Fullerton noted that the staff in the ASD/PDD classroom had done their best to improve communications with the Appellants and now believes that the comments of Dr. Konstantareas have diminished this effort and eroded and their trust and confidence in the educational system.

Ms. Fullerton commented that the principal of T.’s elementary school would not have information or the authority to comment on T.’s best chance of getting IBI in the classroom or about the use of IBI in the newly proposed placement at Algonquin Ridge Public School.

Ms. Fullerton attributed T.’s progress to the program in his placement in the ASD/PDD class and to the co-operative efforts between the educational services and the IBI service. Ms. Fullerton stated that IBI cannot be presented as an educational program in Ontario schools for a variety of reasons and explained that in Ontario, in Special Education, there is an obligation and responsibility to modify and accommodate programs in the areas of content, process, product and assessments and evaluation. She maintained that the IBI programs as described in this hearing do not meet the standards to which the SCDSB holds their educational programs. The programs must be approved and on the Trillium List that lists approved curriculum programs for students. It describes programs or texts that may be used in classrooms in Ontario. These programs and texts are evaluated and reviewed by an independent body before being approved for inclusion on the Trillium List. Only approved texts and programs may be used in public schools in Ontario. An IBI program that would replace a classroom program would need to meet the standards, based on the Trillium List.

With respect to process, the Simcoe CDSB could not support IBI because of the intensity, duration and intent to modify behaviour in an extreme way.

In a classroom a teacher uses formative assessment all the time to make changes in a child’s program to meet the needs of children. Ms. Fullerton expressed concern that Eileen Bethune, the instructor therapist, could not make changes to a child’s program because she did not have the authority to do so. As well, the initial assessment for children in classrooms is done by the classroom teacher and Eileen Bethune did not even see the pre-assessment for T..

Product in the educational sense, according to Ms. Fullerton, is the ability of students to demonstrate their learning in a variety of ways, to generalize their knowledge in another context and in another venue. She stated that there might be the opportunity for learning [in IBI] to be generalized, but that would be in a very limited way.

In summary, she believes that IBI is not suitable for a school.

Ms. Fullerton described the invitation to the New Haven Learning Centre conference. [Dr. Konstantareas consults for that institution] Quoting from the brochure, Ms. Fullerton noted that “Many consumers and practitioners equate ‘ABA’ with discrete-trial instruction”. “In fact, discrete trial teaching is only one of the many instructional strategies based on the principles of applied behavioural analysis. Other strategies include incidental teaching or naturalistic teaching base” – strategies based on Skinner’s Verbal Behaviour, independent activity schedules, functional communication training, video modeling, supported inclusion, etc.” Most of these strategies according to Ms. Fullerton are currently used in the ASD/PDD class.

At a recent conference on Autism in September, the approach advocated at the conference was an eclectic approach that required educators to consider all of the available research and to apply that research in an eclectic way in their classrooms where children with autism are educated. The SCDSB took a ten-member team to this conference.

In summary she stated that she believes that the ASD/PDD class is the most appropriate placement for T. because it offers a comprehensive, eclectic educational program taught by qualified teachers, supported by trained educational assistants. As well, the program has regular persistent consultation with professionals of other disciplines who advise on programming strategies for the children in that placement.

In cross-examination Ms. Fullerton described the materials that would be on the Trillium List and how the physical education program from the Ontario curriculum would be modified. As well she noted that the PECS program is for augmentative communication and that in T.’s case the teachers would be using a modified Ontario Kindergarten curriculum and making modifications to assist the child’s learning.

Ms. Fullerton, in response to questioning stated that the IBI program is therapeutic and in her view an extreme form of behaviour modification that the Board would not be directing staff to use in a classroom.

In cross-examination regarding IBI, she noted that she heard evidence that the IBI program that Eileen Bethune used for T. was in modules developed by somebody outside the home environment by someone who doesn’t know the child and the content is delivered by a instructor therapist who does not have the latitude to change the program to meet T.’s needs at any particular moment. Ms. Fullerton stated that Ms. Bethune’s supervisor has the ability to consult with a psychologist, but there was evidence that Ms. Bethune latitude is “monumentally restrictive.” The psychologist who supervised Ms. Bethune, Linda Cross, has the ability to consult with a psychologist, but there was no evidence that a psychologist visited the home to review the program when the IBI was taking place.

In response to the final question by Ms. Venhola, Ms. Fullerton stated, “There is no dispute on the part of the Board that certain young people require a therapeutic program. The dispute is whether that therapeutic program ought to be delivered within an educational setting. And there is, in my mind – in my view, a clinical program requires a clinical setting. And a question that I have – is this is not going to be a popular statement – is to the efficacy of the delivery of IBI as is currently delivered in the Province of Ontario. We’ve heard evidence of studies of IBI delivered in clinical settings. I would suggest that the T. home is not a clinical setting ….and the clinical parameters that I would consider to be - - are – in the T. home, the clinical standards that are done at a university, I would suggest are not replicated as it’s currently - being used in our province.”

Reasons and Analysis

(1) Background

There is no substantial dispute concerning the following facts and the Tribunal relied upon the following in arriving at its decision:

1. T. is a child, who became ten years old in April, 2004. T. has been identified as an exceptional student diagnosed with autism spectrum disorder. T. has a severe form of autism and needs one-on-one assistance and supervision with most daily living skills

2. T. currently attends an elementary school in Barrie and is placed in the Elementary Autism Spectrum Disorder/Pervasive Developmental Disorder (ASD/PDD) class.

3. T. is described as an affectionate, active child who has a lot of energy who likes to be outside.

4. T. is non-verbal and uses a Picture Communication System (PECS) to request some food items. He communicates by taking a person’s hand and leading to where he wants to go.

5. T. has difficulty with social interactions with other children, has impaired play skills, likes to have stories read to [the child], particularly Barney and likes jumping on a trampoline.

6. T. has significant allergies and is anaphylactic to peanuts. T. is not fully toilet-trained.

7. T. dresses himself independently with minimal adult assistance.

8. T. has self-stimulatory behaviours: mouthing objects; wiggling his fingers; and making vocalizations.

9. T. was diagnosed with Autism Spectrum Disorder in 1997, when he had just turned three.

10. T. seemed to be developing normally, walking and saying two to three word phrases until around 20 months when his parents became concerned that T. had stopped doing some of the things that the child had previously done,

11. After diagnosis,T. started nursery school and had referrals to a variety of services, including speech pathology and occupational therapy.

12. Ms. T. enrolled her child. in the Pre-school program in Oakville in the fall of 1999 when T. was four years old.

13. T. started Kindergarten that same fall with educational assistant support.

14. T. was placed in a regular Grade 1 class for the next year with educational assistance support.

15. T. was invited to attend the Autism Pilot Project class for the child’s Grade 2 year.

16. The Appellants are appealing the June 18, 2002 Identification, Placement and Review Committee (IPRC) decision that recommended that T. continue in the ASD/PDD class for another year.

17. A Special Education Appeal Board meeting was held on September 12, 2002 and released its recommendations on September 17, 2003, upholding the IPRC decision.

18. The Simcoe County District School Board accepted the recommendations of the Special Education Appeal Board on September 15, 2003.

19. The Appellants subsequently, with two other parents, appealed this decision to a Special Education Tribunal.

20. A preliminary hearing was held on the matter of jurisdiction to hear the T. and W. cases on September 22, 2003.

21. The T. case was to directly follow the W. case in October, but was not completed at that time. The Tribunal subsequently met on February 19, 2004 to hear the T. case. Some of the witnesses’ testimony is shared as is some written evidence. [This shared witness testimony is noted in the decision.]

22. The content of the video of T. receiving an IBI session was not in dispute.

23. The relationship between the Appellants and the School Board and its staff has been strained.

(2) Procedural Issues that Arose During the Hearing

1. Admission of the Case Analysis from the Ontario Human Rights Commission

Ms. Bowlby expanded her arguments during the Preliminary Matters section of the Hearing by indicating that the two issues, relevance and hearsay, were significant issues for her client. The complaint against the Ontario Government about funding for IBI is not relevant to the appeal for T.. The Case Analysis is not a decision of any administrative tribunal and is not a decision that was based on a hearing and cross-examination of witnesses. The Tribunal cannot assume that the information set out in the investigator’s report is in any way trustworthy evidence. As well, the Case Analysis reflects double and even triple hearsay. Ms. Bowlby was not only unable to cross-examine the author of the report but as well she could not cross-examine the source, the people who responded to the invitation to express views. This is not sworn affidavit evidence - it is opinion evidence and therefore is completely unreliable. She used the Innisfel (Township) v. Vespra (Township) et al. and the Ontario Municipal Board, (1981) 123 O.L.R. (3d) 530 SCC in furthering her argument on denial of the right to cross-examine.

The second case, Jackson v. Region Hospital Corp. (1994) 1994 CanLII 8874 (NB QB), 145 N.B.R. (2d) 51; 24 Admin L.R. (2d) 220 (NBQB), reiterates the right to cross-examine. She summarized her objection by stating that on both the grounds of relevance and the denial of the right to cross-examine, that the Tribunal should not allow the Case Analysis to be entered into evidence.

Ms. Venhola, in arguing for the admissibility of this document, reiterated her arguments that she gave during the discussion of the preliminary matters and further argued that the Tribunal should receive this document. The Case Analysis investigation is regarding the Government of Ontario, specifically the Ministry of Education and its role in providing IBI in the school system. The fact that the Ministry of Education governs the Education Act, school board and schools, the Case Analysis is relevant. She stated that the issue of IBI is the key issue here relating to the appropriateness of the placement for T.. She stated that this Tribunal is bound by the Human Rights Code of Ontario and must consider issues of discrimination in the context of whether the School Board has failed to provide IBI in a placement, whether that failure constitutes an appropriate or an inappropriate placement. She further stated that the investigator’s report demonstrated a prima facie case of discrimination on the basis of her investigation. She summarized that it would be inconsistent with the Tribunal’s duty under the Human Right Code not to consider all the issues before the Tribunal, including discrimination.

Ms. Bowlby, in reply, noted that while Section 15 (2) of the Statutory Powers Procedure Act states that a Tribunal can receive any evidence that it chooses to admit, and that a Tribunal can receive hearsay evidence, that was also true in the Ontario Municipal Board and the Town of Innisfel case but that that does not trump the right of a party to cross-examine where a party says this is an important issue. In allowing this case analysis, Ms. Bowlby stated that this would be a violation of her client’s procedural rights and the Innisfel case would apply directly here. The Case Analysis is an investigative report, not a legal submission.

Ms. Venhola stated that she is arguing for the Tribunal to admit the report and asked the Tribunal to assign weight to it during deliberations.

Ms. Bowlby argued that the report was totally irrelevant. She reminded the parties and the Tribunal that this tribunal is here to decide what placement is in T.’s best interests. It is not up to the Tribunal to decide whether the Ministry of Education should provide IBI training or IBI in the classrooms. It is not up to the Tribunal to find whether the Ministry of Education is discriminating by not providing IBI.

Ms. Bowlby further argued that Ms. Venhola stated that the document is relevant, but has not stated what the relevance is.

In rendering its decision, the Tribunal declined to receive the document. The Tribunal stated that in the previous tribunal hearings on IBI, the Tribunal had admitted evidence and used the admission of Dr. Konstantareas’ affidavit evidence as an example of hearsay evidence that was admitted in C. and W.. In the T. case, however, the preliminary report is the opinion of one person who gathered opinions of many people who were invited to come forward. The investigator wrote this report on that consultation, and sent it forward with a recommendation for a hearing. There is no evidence to suggest that a full hearing will occur or that a hearing would validate the preliminary finding of the investigator.

The Tribunal views this document as opinion evidence that is not sworn evidence as was the case in accepting Dr. Konstantareas’ affidavit evidence in the two previous cases, W. and C. The Tribunal does not know the credentials of the person who wrote the piece or the credentials of the people who were interviewed by the investigator. The Tribunal would not be able to give any credence to this report in arriving at its decision regarding a placement for T., and therefore the Tribunal was not willing to admit this opinion report into evidence at this hearing. Therefore the Tribunal ruled not to accept the Case Analysis document.

2. The Request for an Order of the Tribunal for the Tapes of the Hearing to be Part of the Official Record

During Ms. Schieck’s testimony, Ms. Venhola stated that there had been a pattern of objections that was obstructing her right to elicit evidence, and requested that the Tribunal make an order that the tape recordings become part of the official record in the event that the decision of this proceeding is followed up in the future. Ms. Bowlby argued that an order is unnecessary since the transcript including the tapes is considered part of the record.

After deliberating, the Tribunal agreed that the decision of this proceeding could be challenged in another court if either party chose to do so. [The court reporting firm keeps all tapes of a hearing for a period of seven years and those tapes as well as the written transcripts are available to either party through the court reporter.]

3. The Admission of the Ontario Human Rights Consultation Paper, The Opportunity to Succeed, Achieving Barrier-Free Education for Students with Disabilities as evidence during closing argument

During closing arguments, Ms. Bowlby objected when Ms. Venhola tried to enter an Ontario Human Rights paper as evidence.

The Tribunal decided that the consultation paper could be accepted, not as evidence, but as a public document.

(3) The Issues:

1. How did the role of research influence the positions of the parties?

2. Issue of staff “duly qualified to meet his [T.’s] needs”.

3. Was the placement decision of the Simcoe County Board of Education IPRC,

placing T. in the Autism Pilot Project, (currently the ASD/PDD class) the

appropriate placement for T.?

1. How did the role of research influence the positions of the parties?

a. Research played a critical role in the positions taken by each of the parties. The Appellants testified that research influenced their decision to pursue IBI for their child. Ms.T. testified IBI was the only method that research had shown to be successful for children with autism. The Appellants and their witnesses all stated that IBI was based on research and that IBI was the best approach to use for children with autism. The Tribunal did not hear any reference to specific research articles upon which the Appellants based their arguments. The Lovaas method was referenced but specific empirical evidence that would support their contention that IBI was the best education for T. was not presented. There were no studies or primary research findings in the Appellants’ book of documents about the Lovaas method although Internet resources and websites were included.

b. The most compelling research that the Tribunal heard from the Appellants’ arguments was the summary of Ms. Milhausen’s notes from a conference that she attended on Dr. Leaf’s presentation. That information was part of the Respondent’s evidence as well. From her [Ms. Milhausen] notes, Dr. Leaf discussed child variables and stated that the child’s cognitive level makes up “half the equation” in the section of her notes on “Factors that Affect Outcome”. The summary of this paper noted that there are factors such as the child’s cognitive level that can affect the child’s success in the program. Both parties submitted this hearsay evidence.

c. Dr. Konstantareas had generated a significant body of research in her special field of stress in families and more currently, temperament of children with autism, but not in the area of the effectiveness of IBI. She is currently supervising a graduate student who is conducting research on IBI at the New Haven Centre, but that study is not ready for release. Although Dr. Konstantareas mentioned the success of Lovaas’ work, she did not provide a specific study that supported the claims of IBI’s effectiveness in school-aged children. Dr. Konstantareas’ CV indicated that she is a prodigious scholar and has many scholarly articles and publications, most of which are in the area of the stress on families with children with autism and on the temperament of children with autism. From her CV, the Tribunal learned that she has not researched the effectiveness of IBI as a teaching strategy for children of school age. In cross-examination, Dr. Konstantareas stated that she is a parent advocate, and that she is arguing for IBI to be delivered beyond the age of six and that she has a private practice supervising people who are conducting IBI. Dr. Konstantareas did not know T., and had not seen the classroom under dispute. Dr. Konstantareas’ affidavit was prepared in order to assist two parents who were involved in litigation against the Ontario Government over the lack of provision of IBI to their children.

d. The Tribunal acknowledges Dr. Konstantareas’ considerable reputation as a scholar, an academic, a prodigious writer, a researcher primarily in the area of stress in families who have children with autism and more recently, the temperament of children with autism, but not in the area of the effectiveness of IBI with school aged children. Therefore, the Tribunal did not give significant weight to her testimony regarding the best placement for T..

e. The Tribunal was left to assess the research that was presented by the Respondent. The Respondent made specific reference to the research contained in the book, Educating Children with Autism by the National Research Council, 2002. This analysis was a study supported by the National Research Council and established by the National Academy of Sciences and the US Department of Education. It is a report by The Committee on Educational Interventions for Children with Autism, and is a synthesis and comparison of the ten most used programs, including the Lovaas method, to teach children with autism. The study is highly regarded in the province of Ontario, even though it is an American publication. The research and findings from the National Research Council study are noted in Exhibit 4,

A large body of research has demonstrated substantial progress in response to specific intervention techniques in relatively short periods of time (e.g. several months) in many specific areas, including social skills, language acquisition, nonverbal communication, and reductions in challenging behaviours. Longitutudinal studies over longer periods of time have documented changes in IQ scores and in core deficits (e.g. joint attention) in some cases related to treatment, that are predictive of longer-term outcomes. However, children’s outcomes are variable, with some children making substantial progress and others showing very slow gains. Although there is evidence that interventions lead to improvements, there does not appear to be a clear, direct relationship between any particular intervention and children’s progress. Thus while substantial evidence exists that treatments can reach short-term goals in many areas, gaps remain in addressing larger questions of the relationship between particular techniques and specific changes. P.5

Further,

Studies have reported substantial changes in large numbers of children in intervention studies and longitudinal studies in which children received a variety of interventions. Even in the treatment studies that have shown the strongest gains, children’s outcomes are variable, with some children making substantial progress and others showing very slow gains. The needs and strengths of young children with autistic spectrum disorders are very heterogeneous. Although there is evidence that many interventions lead to improvements and that some children shift in specific diagnosis along the autism spectrum during preschool years, there does not appear to be a simple relationship between any particular intervention and “recovery” [eventual attainment of language, social and cognitive skills at, or close to, age level.] from autism spectrum disorders. Thus, while substantial evidence exists in many areas, gaps remain in addressing larger questions of the relationships between particular techniques, child characteristics and outcomes. P. 217

f. The research is clear that a comprehensive approach to teaching children with autism is the most effective approach. Behavioural approaches are effective as the research points out, but there was no endorsement of any particular method such as the Lovaas method, which, in this study is referred to as the UCLA Young Autism Project. The Board has taken the appropriate pedagogical position in providing a comprehensive program based on an assessment of T.’s needs. The individualized program created in the ASD/PDD class and for T. is supported by current research.

2. The Issue of Staff “duly qualified” to meet T.’s Needs

In their document package submitted to the Tribunal requesting a hearing before the Tribunal, under Remedies Sought from the Special Education Tribunal, the T. Appellants stated that they wanted a placement that had “staff duly qualified to meet his needs”. The Tribunal therefore, is including this section of the W. decision to respond to the written request from the Appellants even though this issue was not raised in the oral hearing for T.. The issue was, however, noted in closing statements by counsel for both parties. There is a notation where additional information from witnesses in T. regarding this issue has been added.

a. The Tribunal heard from Ms. Sheri Smith, who testified as an expert witness, that she was involved in the development of the Autism Pilot Project as an Integration Resource Teacher, and developed the staff training for the primary autism project. In developing the Autism Pilot Project, Ms. Smith testified the Board involved all its Integration Resource Teachers, along with the Superintendent of Student Services, the Principal of Special Education, and other Special Education Consultants. The staff consulted with the Geneva Centre for Autism’s Case Manager, and staff from the Community Care Access Centre (CCAC), particularly its Augmentative Speech Pathologist and Occupational Therapist.

The Tribunal heard that there was in-service for teachers that included Introduction to Autism, Communication, Social Skills Development, Behaviour and Sensory Processing, IEP Development, and Nonviolent Crisis Intervention. The Board also supported an additional qualification course in Autism, offered by a faculty of education and approved by the Ontario College of Teachers, which 25 teachers attended. There were five days of specific training in Autism for the EAs, in An Introduction to Autism Spectrum Disorders, Social Skills Development, Communication, Behaviour Management, Sensory Processing, Writing with Symbols, Boardmaker, a computerized communication program, Picture Exchange Communication System (PECS) and ongoing Nonviolent Crisis Intervention Training workshops.

The Tribunal was convinced that the level of training and support for the teachers and EA’s in the Primary ASD/PDD class was very appropriate to help T., a child with autism, to learn.

Teachers in the program have:

• An undergraduate degree

• A Bachelor of Education degree

• Ontario College of Teachers Certification

• Additional qualification in specialist areas, specifically Special Education

• Additional qualification in Autism

• Training in Boardmaker, Writing with Symbols, IEP Programming

• Support and supervision from Program Support Specialists

• On-site supervision by School Principal

• Non- Violent Crisis Intervention (NVCI) training

Educational Assistants in the program have:

• A Community College diploma or University degree

• Autism training from the Geneva Centre

• Non- Violent Crisis Intervention (NVCI) training

• Introduction to ASD/PDD workshop

• Training in Boardmaker [computer program]

• Picture Exchange Communication System (PECS) training

• Writing with Symbols 2000 training

• Sensory Behaviour training

b. During the T. hearing, the Tribunal heard that in addition to education and training for the in-class staff, the Board has provided professional staff with relevant education and expertise to provide consultation for the teachers and educational assistants in the ASD/PDD class. Ms. Hunt, the Board’s Speech Language Pathologist has credentials as a teacher, a Master’s degree in Speech Language Pathology, and was trained for 240 hours as an IBI instructor, and has Level 2 training qualifications in PECS, T.’s augmentative communication system. Dr. Boer, the Board’s Senior Psychologist, has credentials as a school and educational psychologist as well as experience in developing programs to manage behaviours of children with various types of exceptionalities including those with autism. Ms. Hunt is in the ASD/PDD class on a regular basis and Dr. Boer has been in the class and is available to staff.

c. The Board consults, as well, with experts outside the Board and the Tribunal heard reference to consultations with the occupational therapist from CCAC and personnel from The Geneva Centre for Autism and other agencies when needed. This level of expertise is in sharp contrast to the paucity of expertise available to the instructor therapists and Linda Cross, the Coordinator for Leaps and Bounds, who stated that her organization contracts with a consulting psychologist with whom she consults infrequently.

d. Compared to the education and training for the teachers and educational assistant in the ASD/PDD class, Linda Cross, Senior Area Coordinator for Leaps and Bounds, testifying for the Appellants said that the instructor therapists who work for Leaps and Bounds and conduct IBI:

1. have experience with autism

2. receive on-the-job training

3. are supervised by a psychologist

4. receive instructor therapist training ranging from one to two days to up to three weeks with a final examination.

e. Ms. Cross testified neither of the two psychologists who provide consultation services to Leaps and Bounds is actually employed by Leaps and Bounds. The Tribunal found that there was no evidence of certification or consistent clinical supervision for IBI instructor therapists, and there is no governing college of instructor therapists for IBI. The Tribunal heard no evidence that the psychologist who provides supervision to the IBI therapy through Leaps and Bounds or Kinark is ever on-site to supervise the therapy.

f. Adding further to the Tribunal’s concerns about the qualifications and expertise of the instructor therapists was a comment by Dr. Konstareus in T. who said, “This is the discrete trial approach, and you do it over and over again, and believe me, unless the girls who do this are very young, it’s very, very tiring….So, it’s a lot of work, it’s tedious work. …and usually for not very high returns in terms of salary.”

The limited training and supervision of staff delivering the home-based IBI program added to the concerns of the Tribunal. Inconsistencies in the delivery of IBI by Leaps and Bounds as seen in the video of T. were noted by Ms. Hunt, currently in the role of Speech-Language Pathologist, but a trained IBI instructor as well.

g. The Tribunal found that the professional accreditation of staff in the Simcoe CDSB, the teachers, the Speech Language Pathologist, and the Senior Psychologist provided a level of capacity and professional judgment that allowed staff to make appropriate, timely decisions regarding T.’s learning needs. The Tribunal found that the expertise of the staff in the ASD/PDD classroom, and the professionals supporting the class, had superior knowledge and expertise in the education of children with autism compared to the staff in the proposed IBI placement that the Appellants were requesting.

h. There was a statement in the Appellants’ Statement of Grounds for Appeal that the Respondent has failed to educate and train staff to provide IBI or an ABA based behavioural management program. The Tribunal’s findings based on the evidence are that, to the contrary, although not providing training in IBI, the Board has provided appropriately educated and trained staff for T.. The Simcoe County District School Board has provided staff duly qualified to meet T.’s needs.

3. The Appropriateness of the Placement

a. All children with autism share some similar needs that T. demonstrated, however children with autism are also unique, with personal characteristics and strengths. As the evidence shows, T. has communication needs, sensory needs, social needs, academic needs and life skill needs related to his autism.

b. The report from The Hospital for Sick Children of November 2001, when T. was five and one half years provided a summary of T.’s functioning level and abilities. This report stated that T. performed at the 1st percentile for auditory comprehension or an age equivalency of eleven months and for expressive communication with age equivalencies of ten months. T. performed below the 1st percentile in the communication, daily living skills, and motor skills which are all within the range of a severe to profound deficit compared to children of T.’s age. Age equivalencies in each the domains assessed ranged from one year to two years, two months. From the evidence presented, it is clear that T. has significant needs related to the child’s cognitive ability.

c. According to the Appellants, T. is functioning at a pre-school level and needs constant one-to-one supervision to keep T. safe and attending to the task at hand.

d. T. needs much repetition to internalize skills. T. needs the opportunity to develop small and large motor skills. In particular, T. needs the opportunity to calm [the child] and to reduce [the child’s] anxiety. T. needs to develop academic skills in a developmentally appropriate manner. T. needs opportunities for social interaction and to develop social skills with adults and children in a peer group. T. needs considerable opportunities to develop self-help skills of dressing, getting snacks and following a lunch routine.

e. The Tribunal found that T. has significant needs related to the child’s cognitive disability as well as the child’s autism.

f. As the Board argued and the Tribunal agrees the Appellants are really seeking a therapeutic treatment program that is not within the power of the Board to create. Only a recognized Care and Treatment facility can admit a student into its facility for care and treatment.

g. Ms. Venhola stated that the Board was unable to substantiate that it cannot provide therapy or that IBI is a therapy as opposed to an instructional strategy. The Board, through the testimony of Joan Fullerton acknowledged that some children need therapy and stated that those children, through the Education Act and related legislation, have their therapeutic needs provided through a placement in a Care and Treatment Centre, which is outside the responsibility of school boards. For children who are in schools within the Board, Community Care Access Centres, as part of a long standing agreement (P.P.M. No. 81) between the Ministries of Education, Health, and the then Ministry of Community and Social Services [now Child and Youth Services] provide therapy if necessary. As in C., the Tribunal determined that IBI is a therapy and heard no additional evidence in this Tribunal to change its position on this matter. In fact throughout the Hearing, the Tribunal heard additional evidence supporting its view that IBI is a therapy i.e. the family doctor wrote a prescription for IBI for T., supporting the position the Tribunal found in C. that IBI is a medical treatment.

h. The Tribunal heard clear and consistent testimony that the legislation states that, under the Education Act and its related regulations, that schools and school boards are responsible for providing education for children and that the other agencies through their respective ministries have responsibilities for providing therapy and treatment for children who may need treatment or therapy. Therefore, the Tribunal’s finding is that IBI is a therapy and that IBI should not be provided in lieu of education. T. has many other needs besides the therapeutic needs that would be met in the IBI placement that his Appellants are requesting.

i. Only one of the Appellants’ witnesses was presented as an expert witness - Dr. Mary Konstantareas. All of the Appellants’ witnesses gave testimony that IBI was the best way for all children with autism to learn. None of the witnesses gave any evidence of research that supported those conclusions. Even Dr. Konstareous, an expert in autism, did not provide concrete evidence of the efficacy of IBI in educating children with autism at the school age level. The best evidence that the Appellants provided regarding research was a summary of a document prepared by Linda Milhausen, a witness for the Respondent in which Ms. Milhausen described a researcher in IBI who stated that IBI is most effective for children functioning at the higher end of the cognitive scale.

j. The Board provided significant research from the National Research Council in a study, Educating Children with Autism. A synthesis of that research states that: Although there is evidence that interventions lead to improvements, there does not appear to be a clear, direct relationship between any particular intervention and children’s progress. Thus while substantial evidence exists that treatments can reach short-term goals in many areas, gaps remain in addressing larger questions of the relationship between particular techniques and specific changes. P.217. In summarizing the ten major approaches critiqued in the National Research Council study, there is no one approach that works best for children with autism. The Behavioural approaches are becoming more naturalistic and the Developmental approaches are just as effective in the eyes of most researchers especially over the long term. The Tribunal found that the Board is using both behavioural and developmental approaches to meet T.’s needs in the ASD/PDD class which is consistent with the findings in the research study from the National Research Council report on Educating Children with Autism.

k. Tab 1, Exhibit 2, in the Appellants’ Joint Record (W./T.) entitled, Autism/PDD: What are the most effective approaches? from the Autism Society of Ontario website states:

Evidence shows that early intervention results in dramatically positive outcomes for young children with autism. While various pre-school models emphasize different program components, all share an emphasis on early, appropriate, and intensive educational interventions for young children.

Other common factors may be: some degree of inclusion, mostly behaviourally-based interventions, programs which build on the interest of the child, extensive use of visuals to accompany instruction, highly structured schedules of activities, parent and staff training, transition planning and follow-up.

Because of the spectrum nature of autism and the many behaviour combinations which can occur, no one approach is effective, alleviating symptoms of autism in all cases. Various types of therapies are available, including, but not limited to applied behavioural analysis, auditory integration training, dietary interventions, discrete trial teaching, medications, music therapy occupational therapy, physical therapy, sensory integration, speech/language therapy, communication and social skills training and TEACH. (a program developed at the University of North Carolina for children with autism.)

Studies show that individuals with autism respond well to a highly structured, specialized education program, tailored to their individual needs. A well designed intervention approach may include some elements of communication therapy, social skill development, sensory integration therapy and applied behavioural analysis, delivered by trained professionals in a consistent, comprehensive and coordinated manner. The more severe challenges of some children with autism may be best addressed by a structured education and behaviour program, which contains a one-on-one teacher to students’ ratio or small group environment. However, many other children with autism may be successful in a fully inclusive general education classroom.

In addition to the appropriate educational supports in the area of academics, student with autism should have training in functional living skills at the earliest possible age….

To be effective, any approach should be flexible in nature, rely on positive reinforcement, be re-evaluated on a regular basis and provide a smooth transition from home to school to community environments.

The ASD/PDD placement includes most of the common factors that are within the control of the school system as outlined in Exhibit 2: a degree of inclusion; behaviourally–based interventions; programs based on T.’s interests; extensive use of visuals; highly structured schedule as described by Ms. J.C.; staff training; a flexible approach; and reliance on positive reinforcement. As well, the staff use applied behavioural analysis principles in developing teaching strategies; use PECS; an occupational therapist and a speech /language pathologist provide input and training for staff; and communication and social skills were part of T.’s IEP.

l. The Tribunal is of the opinion that parents should not be expected to be aware of the research on the effectiveness of programs for children with autism, but the administrators of these programs should be knowledgeable about the child variables in order to inform parents which children might benefit from various programs. The consistent reference to IBI as the only way to teach children with autism, in the opinion of the Tribunal, has led to a lack of understanding of and appreciation on the part of the parents of the extensive knowledge that educators have about child development and how children learn, including children with autism. Dr. Konstantareas’ comment that T.’s education program was “babysitting” and that T. daily schedule was “bunk” did not help instill confidence in the significant work that the school and Board were doing in providing a comprehensive program for T., a placement that had materials and activities that were developmentally and cognitively appropriate for T.’s learning needs.

m. The Appellants believed that IBI was superior to the school program because they saw T. engaged in “academic” activities in the home IBI program and believed that T. was not having an appropriate “academic” program at school. Witnesses for the Board, particularly Ms. Hunt and Dr. Boer, provided evidence of the difference between “rote learning” and learning that is internalized by children. The Tribunal is of the opinion that the Appellants, perhaps in their desire to see gains that T. was making, did not see that the learning that had been “mastered” at home was in fact, “rote learning” that would not likely be generalized at school unless there was a meaningful way in which this could be demonstrated. The school activities, on the other hand, were developmentally appropriate for T.’s cognitive level and were activities that T. was using to help the child integrate learning in a naturalistic environment with other children in a social setting. The Tribunal is of the opinion that the life skills activities in the child’s curriculum were appropriate. The Tribunal believes that the Appellants failed to see that activities such as counting rings and learning to hold a pencil were pre-academic activities and at T.’s cognitive level.

n. Many of the activities that are considered as “play” that the Appellants felt were better suited to a nursery school are important pre-academic activities that allow children to develop the “readiness” skills that lead to academic learning. Much work needs to be done, as described by Tracy Hunt, in developing the precursors to language before printing and recognition of letters can have meaning for a child. The Tribunal is of the opinion that the activities in T.’s daily schedule and IEPs were developmentally appropriate and were meeting the child’s learning needs. The life skills program and the daily living activities are most appropriate in giving T. the skills that the child will need to live an independent life, a hope of T.’s parents.

o. Much of the Appellants’ testimony and evidence focused on “discrete trial,” the primary technique used in IBI. This technique is not endorsed by the Tribunal as a substitute for the variety of teaching techniques in the comprehensive program in the ASD/PDD placement. The Tribunal notes that, in education, teachers are discouraged from using “rote” learning in their classrooms where children learn facts that are meaningless to the children and quickly forgotten. Rather, educators are encouraged to provide learning experiences for children that are relevant, can be applied to real life and have meaning for the child that is learning that can be integrated or generalized and practised in life. This learning is appropriate for all children, but particularly for those children with autism.

p. B. T., in particular, expressed his view that T. had regressed from the skills that he had demonstrated at home compared to the skills that T. was demonstrating at school. The Tribunal notes that there was misunderstanding of the reporting on the report cards which changed goals as T. accomplished goals which may have led to the impression that T. was not progressing at school. The Tribunal notes, however that when children learned something by a “rote method”, those skills are not internalized unless they are practised in a meaningful way so that the skills become part of the child’s acquired knowledge. A common definition of learning is: A lasting change in the learner’s knowledge where such changes are due to experience. The Tribunal is of the opinion that the “learning” that the Appellants saw as a result of the IBI program was not of a lasting, generalizable nature and would not be labeled, “learning” by educators, but rather it would be considered, “imitation” or “association”. In particular, the alphabet would be of little value to T. given his cognitive developmental level of functioning because he would have no opportunity to apply those letters in a meaningful way to use them in a reading activity.

The Tribunal is not clear whether T. was not demonstrating some skills that the child had previously seemed to have acquired due to the “rote method” of teaching T. in the IBI program or whether regression had occurred. Had regression occurred, the Tribunal notes that regression of learning occurs in children for a number of reasons, some of which are fatigue, illness and anxiety. Dr. Konstantareas in her oral testimony stated that, “Some children for a variety of reasons because of their brain damage or other problems, sometimes do very well, only to plateau for a while, and then perhaps even regress before they go up again and so forth.”

The Tribunal took notice that both Tracy Hunt and Dr. Boer noted anxiety the T. was demonstrating in the video in which T. was receiving the IBI program and the Tribunal expresses concern over the anxiety that can be caused when children are exposed to developmentally inappropriate expectations over an extended period of time.

q. The Tribunal found that the learning taking place for T. in the ASD/PDD class was developmentally appropriate for T., had application to T.’s daily world, and was meaningful for the child. From a child’s perspective, this is a meaningful learning environment.

r. We heard evidence of the extensive resources available in the placement that were meeting T.’s needs and the interdisciplinary team that helps the staff in the class to meet the needs of children in that placement. The Tribunal noted the resources in the Snoezelen room and the wagons, the water play and other materials that allowed T. to “play”, an important need since it develops gross motor skills and allows for socialization and language development, needs that have been identified for T.. T.’s social needs can be met in the ASD/PDD placement as well as in the integration activities in the classes with typical age appropriate peers and with other members of the school community in the child’s activities around the school

s. The Tribunal found that T. was progressing in the placement and was making some significant gains in the area of calming, attending for longer periods of time, and was not engaging in inappropriate behaviours in which the child was engaged in earlier grades. In describing the gains that she observed in T. since September 2003, Ms. Hunt, described the gains as “significant.” The Tribunal is of the opinion that the gains that T. is making at school are not solely the result of the IBI program at home as the Appellants suggest, but rather as a result of the program that he is experiencing at school in conjunction with the outside resources that T. is receiving.

Jurisdiction Revisited

In closing, in a new argument, Ms. Venhola stated that the Appellants wanted more than “discrete trials” and wanted T. to have Music, Gym, and other activities within the IBI placement. The Tribunal as in C. v. Dufferin-Peel Catholic District School Board, September 19, 2003 (2003 ONSET 4) is of the opinion that these additional requests are programming issues and that the Tribunal does not have jurisdiction to address this second request by the Appellants that was made during closing arguments. The evidence presented in this hearing was in support of a placement consisting of IBI.

With respect to the other therapies, speech-language and occupational therapy as noted in the Appellants’ document to the Tribunal, May 2003, Remedies Sought from the Special Education Tribunal, and the request for increased speech-language and occupational therapy, the Tribunal notes that it does not have jurisdiction to order a school board to provide speech-language or occupational therapy. The Tribunal agrees with the Respondent that a placement of IBI at a minimum of three hours per day and increased speech language and occupational therapy would constitute a therapeutic placement and that to order a therapeutic placement would be outside the Tribunal’s jurisdiction. With respect to personalized assistance from an educational assistant at all times, and the request for the adoption of a unified approach to the special education program and services for T., again, the Tribunal would not accept jurisdiction to make an order in these areas.

The Tribunal has accepted jurisdiction to hear the matter regarding the request for a placement that “consists” of IBI, as Ms. Venhola argued in her opening statement, and has satisfied itself that it has heard the matter and can issue a decision on that remedy sought by T.’s Appellants.

In closing, Ms. Venhola argued that the Board has the obligation to provide an education for T. which would allow T. to reach T.’s personal potential and that without IBI T. cannot access an academic program. She referenced Eldridge and the Supreme Court of Canada, Fleischman, the Human Rights Code and E. The Tribunal considered the references to rights as outlined by Ms. Venhola and accepted Ms. Bowlby’s analysis of E., that in taking into consideration the needs of the child and the appropriateness of a placement from the child’s perspective, “the best interests” of the child, a Tribunal decision under those circumstances is in compliance with the Charter and the Code. The Tribunal is of the opinion that the case in Fleishman is not relevant to the decision in this tribunal because it is an order for an injunction until a judicial review of the transfer of an educational assistant who was delivering an ABA program can be heard.

The Tribunal believes that the Appellants failed to prove that the placement requesting the pre-packaged IBI program that was presented in evidence, was a better placement for T. and is of the opinion that the ASD/PDD Elementary class, the current placement provided by the Simcoe County District School Board is the appropriate placement for T.. The Tribunal is of the opinion that the Appellants failed to prove that the ASD/PDD class placement was inferior to the placement that consisted of IBI that the Appellants requested, failed to prove that T. had regressed in the placement and that T. had not learned in the ASD/PDD class.

In arriving at its decision on the appropriate placement for T., the Tribunal used the standard of review that the Supreme Court used in the E. case in determining appeals on placement, that is, which placement meets the pupil’s best interests. In determining the “best interests” of T., the Tribunal used the reasoning of the Supreme Court’s decision on E., which said, “For older children and those who are able to communicate their wishes and needs, their own views will play an important role in the determination of best interest. For younger children, and those like Emily, who are either incapable of making a choice or have a very limited means of communicating their wishes, the decision maker must make this determination on the basis of other evidence before it”.

The Tribunal unanimously denies the request of the Appellants and affirms the determination of the June 17, 2002 and June 2003 IPRC decisions placing T. in the Primary Autism Pilot Project class (now called the Elementary ASD/PDD class). The appeal is denied.

Recommendation:

Reporting T.’s progress through the report cards seemed to be an issue for the Appellants.

Clarity is needed in explaining T.’s progress at school to the Appellants. From their interpretation of report cards, the Appellants were under the impression that T. was not progressing in school other than in T.’s Kindergarten year. Face-to-face communication between the Appellants and the school personnel that has not been occurring must increase so that the Appellants are able to understand T.’s progress or lack of progress and the steps the staff are taking to assist T. to learn and progress. The Tribunal understands that communication has been limited as a result of the appeal process and strongly encourages the Appellants to begin to contact the school to restore their relationship. In closing Ms. Bowlby stated that her client, the Simcoe Count District School Board is desirous of working with the Appellants in a cooperative and collaborative manner. In particular, the Tribunal suggests that the Appellants meet with Tracy Hunt and Dr. Boer who can assist them in understanding T.’s learning needs and the school program that has been developed for T. It is critically important for the Appellants to develop a working relationship with T.’s teacher and the school based personnel who work with T. on a daily basis. Transitions need to be planned carefully and will continue to need careful planning throughout T.’s schooling and this can only be accomplished with a good co-operative, collaborative working relationship between the Appellants and the school staff. The Tribunal notes that Ms. T. was instrumental in helping the Board establish a “state of the art” Snoezelen Room that T. and other children with autism are using and enjoying in addressing their sensory needs. It is hoped that there may be an occasion in the near future where the T. family and the Board may have a co-operative venture to re-establish their working relationship.

Paula Barber, Tribunal Chair________________________________

Sharon Carson, Tribunal Member____________________________

Dawn Roper, Tribunal Member_____________________________

May 28, 2004