Acton Boxborough Public Schools v Aaron – BSEA #03-2542

Acton-Boxborough Public Schools v Aaron – BSEA #03-2542

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 03-2542

IN RE: Acton-Boxborough Public Schools v Aaron1

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred on December 18, 2002 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.

Those present for all or part of the hearing were:

Margot Flouton Director, Clearway School, West Newton, MA

Matthew McNamera Attorney2 for Ms. Flouton

Nancy Kolb Special Education Director, Acton-Boxborough Public Schools

Maureen Beauregard Special Education Teacher, Acton-Boxborough Public Schools

Melinda Warner Neuropsychologist, North Shore Children’s Hospital, Salem, MA

Mary Emmons Out-of-District Coordinator, Acton-Boxborough Public Schools

Elizabeth Huber Chairman Pupil Services, Acton-Boxborough Public Schools

M. Jane Powers Director Day Program, St. Ann’s Home, Methuen, MA

Sandra Moody Attorney; Acton-Boxborough Public Schools

Geraldine ten Brinke Attorney for the Parents

Joan Beron Hearing Officer, BSEA

The official record of the hearing consists of School Exhibits marked S1-S17 and Parents’ Exhibits marked P1-273 and approximately four hours of recorded oral testimony. The record closed on December 23, 2002 when the Hearing Officer received written closing arguments from both Counsel.4

I. PROCEDURAL HISTORY

This matter was initiated as BSEA #02-3079 in June, 2002, when the Parents requested an expedited hearing to address issues arising out of the evaluation conducted by North Shore Children’s Hospital (NSCH) at the request of, and in place of, the School District’s evaluation. That particular matter was resolved without the need for hearing and the TEAM Meeting at which the North Shore evaluation was discussed was held on July 16, 2002 (S11). Three additional meetings were held during the summer, and an IEP was developed and sent to the Parents on August 28, 2002 (S12). That IEP was rejected by the Parents on or about October 4, 2002. The Parents amended their hearing request and filed discovery requests at that time.

The School District then filed its own discovery requests and moved for a protective order. The Parents filed for a protective order in response to the School District’s discovery motion. These matters were resolved and on October 29, 2002, the Hearing Officer established mutually agreeable dates for hearing on December 16 and 17, 2002.5

On November 26, 2002, the Parents requested a postponement of the hearing dates, which was opposed by the School District. The Hearing Officer denied the Parents’ request for postponement in part by Order dated December 5, 2002 bifurcating the hearing so that the issue regarding the appropriateness of the School District’s out-of-district placement could be tried on the December dates, reserving Parents’ procedural violation and compensatory claims for Parent’s proposed dates in January or February 2003. Parent were also given the opportunity to present evidence regarding alternative in-district and out-of-district programs at that time if the School District’s IEP was not found to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) for Student. On or about December 10, 2002, the School District filed its request for an expedited hearing in this matter (BSEA 03-2542) and requested that its request be consolidated with BSEA #02-3079. The Parents filed an Opposition to the School District’s request on December 11, 2002, along with a Second Request for Postponement of the hearing, stating in that document the intention to withdraw their request for hearing should the postponement request not be granted. Although the Assistant Director of the BSEA denied the request for expedited relief, the matter was assigned to the same Hearing Officer who was granted scheduling authority. The Hearing Officer granted the School District’s request to consolidate the two matters and granted the Parents’ request for postponement, in part, by releasing the first day of hearing and scheduled the matter to begin on December 18, with the School District as the moving party.

The hearing was held on December 18, 2002. The Parents did not appear, but their attorney was present at the start of the hearing and entered a statement into the record following the opening statement by counsel for the School District. In that statement, Parents’ attorney expressed the Parents’ concerns that the program proposed by the School District was not the least restrictive environment and that the Parents had not received sufficient information from the School District, and that the Parents had withdrawn the Student from the School-District and planned to educate him at home, where they believe Student will receive necessary services. Parents did not then introduce any evidence, nor file any Motions, despite having been given the opportunity to do so. At the conclusion of her statement, Parents’ counsel left the hearing and the School District proceeded to put forth its case.

ISSUES

I. Is A-B’s January 2002 proposal to implement Student’s last accepted program for a private day program at St. Ann’s Home (St. Ann’s) an appropriate placement to offer Student a Free appropriate public education (FAPE) in the least restrictive environment (LRE)?

II. Does the August 28, 2002 IEP recommending a program at St. Ann’s Home School offer Student a FAPE in the LRE?

III. If not, what type of program does Student require to achieve a FAPE in the LRE?

SCHOOL’S POSITION

Student is an 8 th grader with serious executive functioning deficits, writing deficits, ADHD and social skills deficits. He requires a program that can address all of these needs and needs to be grouped with peers who function at his average to above average cognitive level. Student’s primary disabilities are social emotional and as such he needs a therapeutic setting that can address his emotional and his academic needs. Student has been in approved and unapproved out-of-district programs since 4 th grade that focused primarily on Student’s learning disabilities but was not able to stay at any of these programs for more than a few months. Student’s behavioral issues have also interfered with his ability to learn even in an interim one-to-one setting. St. Ann’s can provide Student the therapeutic and academic support Student requires to receive a FAPE in the LRE. Therefore, the School District requests that the Hearing Officer find that Student requires an out-of-district therapeutic day program that can also address Student’s other learning deficits and that St. Ann’s Home can implement Student’s program.

PARENTS’ POSITION

Parents agree that Student has serious executive functioning deficits, ADHD and social skills and writing deficits. Student also however has learning disabilities and should be in a program to address these deficits. In addition, Student’s need for pragmatic instruction and other social emotional issues should not be addressed in a program containing a “behaviorally involved” population. St. Ann does not offer the type of program Student requires, does not provide an appropriate academic or behavioral peer group for Student. Parents acknowledge that no other program has accepted Student but feel that the packets sent out do not reflect Student’s profile accurately. Student has made progress in a 1:1 setting. Parents are therefore submitting a proposal to the Acton-Boxborough Superintendent for Mother to home-school Student.

FINDINGS OF FACT

1. Student (d.o.b. April 10, 1988) is currently a 14 ½ year old 8 th grade student who lives with his parents and eleven year old sister in Acton, Massachusetts ( see e.g. P4, S1, S11). Student is a good athlete, enjoys reading science fiction fantasy and skateboards or snowboards in his spare time (S11). He has some peers but most often plays with neighbors aged 6-9 years (S11). Student was first diagnosed with ADHD at age seven (S11). At various times Student has been diagnosed with nonverbal learning disabilities (NLD), expressive language disorder, oppositional defiant disorder and intermittent explosive disorder (S11). Student’s eleven-year-old sister has also been diagnosed with ADHD at age nine. One uncle also has ADD and another uncle has attended a specialized school placement to address developmental delays (P11). The family history is also positive for learning disabilities, intensity and temper outbursts (P2).

2. Student attended public school until the spring of 4 th grade under IEPs addressing Student’s ADHD, word retrieval, writing deficits, nonverbal learning disabilities and associated executive functioning and organizational difficulties (Beauregard). The School District referred Student for a diagnostic evaluation due to behavioral control problems and explosive behavior that resulted in Student biting his arm when overwhelmed and anxious, verbally explosive behavior toward teachers and peers, and other health and safety issues that could not be accommodated in the public school (P11, S11, Beauregard). At that time the School District referred Student to the Dearborn Academy in Arlington, MA (Dearborn) and the Gifford School in Weston, MA (Gifford). Student attended Dearborn’s summer program and remained there for the 5 th grade.

3. In May 1999 the TEAM reconvened to develop a program for Student’s 6 th grade year. The School District members of the TEAM recommended that Student remain at Dearborn because he had made progress. Mother did not want Student to remain at Dearborn because she felt the students were more behaviorally involved than Student (Beauregard). She requested that the School District explore the Case Collaborative because it was a less restrictive setting (Beauregard). The out-of district coordinator had reservations about the appropriateness of this program and asked Mother to consider St. Ann’s if she wanted a different placement than Dearborn. The School District sent packets to St. Ann’s and the Case Collaborative (Case). Mother did not feel that St. Ann’s was appropriate but did accept the program at Case. Student began the Case program in September 1999.

4. On January 24, 2000 Student received a neuropyschological evaluation by Dr. Susan Downing (P2). Dr. Downing diagnosed Student with ADHD, Intermittent Explosive Disorder and Learning Disabilities. Dr. Downing and other evaluators found Student to have good intelligence and athletic abilities and has the ability to learn when in the right setting or mood (P2, see also Beauregard, Flouton). Dr. Downing found that Student showed much difficulty with social situations that are unstructured and lacked a flexible adaptive response thereby resulting in remarkable frustration in social situations, anger and poorly modulated emotional and behavioral responses (P2).

5. Student exhibited behavioral problems and explosive behavior at Case and was withdrawn from the program in February 2000 (Beauregard, see S11). Student received home tutoring for the rest of the year. Id. The School District hired a consultant to assist in locating programs ( see P1).

6. In September 2000, Parents privately placed Student at the Hillside School (Hillside) (Beauregard, see S11). As per Hillside’s policy, Student was asked to repeat his 6 th grade year (Beauregard). Hillside is a regular education program in Marlborough, MA. (P3, Beauregard). While at Hillside, Student received a small class setting, structured teaching of organizational skills, regular feedback and follow-up on homework assignments, opportunities to do hands-on work whenever possible and regular cueing from teachers in the classroom (P3). Hillside also allowed Student to use an Alphasmart to type written assignments, gave Student the option of doing certain assignments verbally instead of in writing and, at times, reducing the volume of work expected of him (P2).

7. Student benefited from these academic accommodations but continued to display the same types of behavior he had displayed in the elementary school, in Dearborn and at Case (Beauregard). Hillside staff found that when Student was upset he would respond by swearing, running out of the building, walking off campus, throwing things, threatening people, destroying property and on at least one occasion, had played with fire (P2, P3).

8. In January 2001, Hillside staff suspended Student for an extended period of time (P2). Parents and Hillside arranged for Student to be evaluated by Dr. Mitchell Wangh at Northboro Psychiatric Associates (P2). Dr. Wangh reviewed Student’s records and talked to Mother, Student’s psychotherapist, Student’s pediatrician and Student (P2). Dr. Wangh found Student to be cooperative but not easily engaged. He showed good verbal skills but his verbal processing was fairly slow, deliberate and linear. He was physically restless and distracted. Student displayed tremendous difficulty following and engaging in a dialogue and impulsive and poorly modulated behavior during unstructured conversation. Dr. Wangh did not know whether Student could be contained at Hillside but recommended that if Student did return to Hillside, his teachers should give Student a neutral “cooling off” site with a period of debriefing (P2).

9. At the end of May 2001, Hillside concluded that Student’s behaviors were beyond its capacity to handle and terminated Student from its program (P3). Hillside sent Mother work for Student to complete and Student was officially recorded as having completed 6 th grade at Hillside (P3).

10. The School District sent out referral packets during the spring of 2001 (Beauregard). Packets were sent out to the Clearway School and Gifford and, at the request of Parents, also sent to the Landmark School in Beverly, MA (Landmark) and to Willow Hill in Sudbury, MA (Willow Hill). Willow Hill and Landmark did not think that they had the necessary therapeutic supports to meet Student’s needs and rejected his application (Beauregard). Gifford did not want to pursue his application because at a previous interview Student, after obtaining permission to use the bathroom, would not come out of the bathroom for two to three hours and would only respond through the keyhole (Beauregard). Clearway received the School District’s packet in the spring of 2001, and accepted Student. He began on August 30, 2001 as a 7 th grader pursuant to an accepted IEP developed at a TEAM meeting on July 25, 2001. (Flouton, Beauregard, S1, P4).

11. The Clearway School is a Chapter 766 approved private day school that services 25-30 students age nine through eighteen diagnosed with language-based learning disabilities, nonverbal learning disabilities, dyslexia or other similar needs (Flouton, P7). Margot Flouton has been the director of Clearway since 1989. She has nine years of experience at the League School and has been employed as a behavioral management and educational consultant for the Learning Center for Deaf Children, the Needham and Newton Public Schools, the FLLAC Collaborative and the Gifford School (Flouton, S17). Clearway offers language-based instruction and has adjunct speech/language remediation and pragmatic instruction for those students who require it, a social worker to deal with adjustment and conduct social skills groups and a vocational counselor (Flouton). Although Clearway primarily services students with language-based learning disabilities, forty percent of Clearway’s population also have been diagnosed with nonverbal learning disabilities (NLD) and many have an overlay of ADHD, bipolar disorder, Asperger’s syndrome or Tourette’s syndrome as a secondary diagnosis to the language based learning disability.

12. Clearway progress reports generated in November 2001 showed that with support Student made some improvement in his ability to write outlines, use topic sentences and add detail to sentences. He had excellent ratings in science fiction and cartooning; good to excellent grasp of math and science concepts and consistently produced his homework in the latter part of the term. His social studies and tutorial teacher noted improvement in working with a peer partner. Student continued to show difficulty in pragmatic language skills, interacting appropriately with peers, maintaining self control, and following directions and showed less progress in these areas ( compare P5, P6). In the following semester, Student increased his ability to complete his English homework but was less able to work independently or interact with peers. His writing organizational skills improved. Student however, continued to avoid writing assignments unless given one-to-one assistance. Progress in other areas remained the same. Id.

13. Student began exhibiting behavioral problems on the second day of school (Flouton). After being given a directive that Student did not like, Student climbed, walked and balanced on a second story banister railing and refused to come down for fifteen minutes. Despite intervention, Student’s behavior escalated necessitating Clearway to call Mother to convince Student to come down from the banister (Flouton). During the second week of school, Student punched a child in the back after being told by staff that he had to remain in the homework room to complete homework instead of going to snack. During that week, Student punched another peer during a touch football game when that student grabbed Student’s shirt and during the following week Student chased another student into a room and kicked him (Flouton). Staff spoke to Student on each occasion, telling him that his behavior was not acceptable and informing him of the consequences of his actions. Student appeared to be able to process the information and indicate that he understood (Flouton).

14. On October 17, 2001, Student, after being given a directive to complete math homework that was not done, began to shout and swear at the teacher. He then left the room to go to the class store. When told he could not buy something at the store until he finished his homework, Student kicked the wall, ripped down a map and swore for five minutes. He then told a teacher to leave or he would punch him in the face. When that teacher left, Student overturned chairs. He then sat on a windowsill and told another teacher that he was thinking about jumping out a window. The first teacher attempted to have Student talk to his Father on the phone. Student refused, swearing about Father and swinging his backpack at the teacher. Student was sent home at 11:00 a.m. and also suspended for October 18, 2001 for refusing to go to the designated time out area and disrupting the learning of students by his refusal, threatening a teacher and swinging the book bag at the teacher (S3A). Clearway informed Acton-Boxborough’s out-of-district coordinator and Parents about the incident, placed the incident on its agenda for its staff meeting that day and scheduled a follow-up meeting with Parents before Student returned to school on Friday, October 18, 2002 (S3, see Flouton).

15. Clearway’s case manager met with Mother on Friday October 19, 2001. They developed a written behavior plan for Student (Flouton).6 The plan noted that Student had increased his amount of time working in classes, decreased his negative comments to his peers, made strong friendships with a peer or peers and had taken steps to decrease the number and intensity of his outbursts when frustrated (S3). The plan indicated that Student would need to remain in the building with staff for that Friday but would have the opportunity to move up to Level 2 that following week. It also detailed the behaviors that led to the suspension, listing the current plan to address behavior including going to a homework class, going to the designated timeout area on the stairwell (Clearway does not have a time out room because it is not geared toward servicing students who require this intervention on a frequent basis), doing an activity to occupy his hands and talking to a parent on the phone (S3A). The plan also listed positive consequences for following the plan and the effect Student’s behavior had on his classmates and teachers (S3A). The plan also listed the behavior that was expected of Student and the consequences for negative actions progressing from losing points or levels for not following rules, to using the designated time-out space when needed, to suspension for threats or destruction of property. If an assault occurred the police would be notified (S3A). The TEAM was not reconvened nor was the IEP amended to include this behavior plan but did incorporate what Mother and staff wanted to see in a behavior plan (Flouton). A copy of the plan was given to and reviewed with all Student’s teachers and was implemented. The behavior plan was given to Student and reviewed on a frequent basis and Clearway staff believed that Student knew what was expected of him and the consequences of his behavior (Flouton).

16. On October 25, 2001 at 2:00 p.m. Student received a one day suspension for the following day for punching another student who had grabbed Student’s shirt during a basketball game (S3). The out-of-district coordinator and Parents were notified (S3).

17. On November 16, 2001 Student received a one day suspension for the following school day for chasing a student in the school lunch room, punching the student in the shoulder and refusing to leave the room (S3). The out-of district coordinator and Parents were notified (S3).

18. On December 4, 2001 Student received an incident report for violating Clearway’s rule prohibiting any physical contact with other students whether or not consented to. This rule (along with two other rules) is reinforced weekly with students (Flouton). Clearway requires students to take a health and sexuality class. Student took this class that semester (Flouton, S2, F4). Clearway’s social worker also runs an adolescent social skills group for those students who require it. Student was engaged in one of these groups (Flouton). On that day, during art class, the art teacher observed Student touching a girl’s leg. Upon investigation, the girl told the teacher that Student had touched her leg and she did not want him to do that. Clearway staff then spoke to the girl’s mother who informed Clearway that the girl had informed her that Student had touched her leg twice in history class and once in art, that she told him that she did not like it and had told him no but that Student had kept on touching her. The girl’s mother also informed Clearway that she heard her daughter talking on the phone to Student saying “ I don’t want to do that, I don’t think we should do that”. Clearway separated Student’s and the girl’s seating, spoke to Student’s Mother, reviewed Clearway’s sexual harassment policy. Ms. Flouton met with Student who informed her that girl was his girlfriend. Ms. Flouton told Student that his behavior was not acceptable and reviewed the sexual harassment policy and set clear boundaries and expectations for behavior. Student told Ms. Flouton that he understood that his behavior was wrong and was sorry about the incident (Flouton). The out of district coordinator and Parents were informed of the incident (S3).

19. Ms. Flouton also obtained a release to talk to Student’s therapist and psychiatrist (Flouton, S3). The therapist informed her that Student had not had therapy in six months and when last in therapy would not engage with the therapist, would only engage in conversation for five to ten minutes and would then leave the room (Flouton).

20. On January 8, 2002 Student received a one day suspension for violating the sexual harassment policy with another female student. On that day the female student told teachers that Student had, on January 3, 2002 during the afterschool program, put his hand in her lap but had removed it when she told him to stop. She also informed the teachers that when in their Nutrition class on January 7, 2002, Student had put his hand on her rear and then under her blouse and would not stop. Student kept his hand under her blouse even when Student tried to move it away. On the following day, Student touched this female student between her legs. Student was told no and Student complied. Clearway informed the out-of-district coordinator and the Parents about the incident and informed the Newton police to see if they should be involved (Flouton).

21. Clearway also scheduled an emergency team meeting for January 10, 2002 to discuss placement and faxed the out-of-district coordinator a letter informing her that Clearway was terminating Student from Clearway effective immediately because Clearway believed that Student presents a clear and present threat to the safety of other students in their setting ( see Flouton, S3, S4). The School District rescheduled the TEAM meeting for January 11, 2002 so that both parents could attend (Beauregard).7 The School District requested that Student remain at Clearway until another placement could be found (Beauregard). Parents made several requests to Clearway to have him remain there (Beauregard). Parents did not agree with Clearway’s immediate dismissal of Student, questioning whether the touching was consensual because the female student was Student’s girlfriend and did not appear to be upset, and questioning whether the alleged touching had occurred because it was not observed by the Nutrition teacher and would have been in full view of the four students in the class ( see P7). Parents felt that Student’s impulsive behavior were more a reflection of the mixed messages he was getting from other students and requested that Student remain at Clearway with a modification to his social skills group or additional social skills training outside of school (P7). Clearway felt that they could not provide the necessary social skills training that Student required because their focus was on servicing children with language and organizational disabilities (Flouton, see P7).

22. During January 2002 Mother and the out-of-district coordinator spoke several times about Student’s interim and long term programs (Beauregard). The School District felt that Student needed further evaluation and asked for consent for the school district to conduct a full reevaluation. On February 5, 2002, Mother rejected the proposed evaluations because “[Student] was successful in his recent placement (the placement recommended by Acton’s outside consultant) which correlates with the information provided by his numerous evaluations in the last several years. No new educational or behavioral concerns have arisen.” (P8, S5).

23. In January and February 2002, the School District also requested consent to send packets to the Gifford and St. Ann’s because the School District thought that they would have the therapeutic support to meet Student’s needs. (Beauregard, see P9, S6). She also requested to resend packets to Landmark and Willow Hill School even though she did not think that these schools had the therapeutic supports for Student because she thought that Parents may be willing to have these schools reexplore Student’s packet (Beauregard, see (S6, P9). Parent did not consent to having packets sent out because she wanted Student to return to Clearway and wanted a TEAM meeting to explore reconsideration of Clearway’s decision and review A-B’s request for out-of-district placements prior to further investigation of Clearway’s expulsion decision (Beauregard, P9, S6, P8, P10).

24. Parents made several subsequent requests to have Student return to Clearway, including sending Clearway written information from Student’s therapist Dr. Streff. Dr. Streff sees Student every two to three months if something comes up ( see P11, S11). On February 9, 2002, Dr. Streff wrote a letter indicating that:

The incidents in December and January are further reflections of his disability, not an indication of a “sexual predator.” His confusion and impulsive behaviors are more a reflection of the mixed messages he was getting from some of the other students in his environment, rather than some difficulty managing his sexual drive….He needs on-going directives for interpreting the messages he gets from females who interact with him….[Student] will continue to need some interpretation of the social messages and cues in his environment. But he is not a ‘threat’ to anyone, nor does he have a history of violent acting out, and he does not have fantasies of harming anyone. He is a young adolescent who is working hard, who struggles to meet expectations, and is able to acknowledge when he had done something unacceptable and he tries to learn from it. He will need a learning environment that includes teachers and other adults who understand that he is willing to make extra effort, as long as he can also get guidance and reinforcement along the way (P11).

25. The School District agreed that Student was not a “sexual predator” agreed to have a TEAM meeting explore readmission to Clearway or other long term or interim planning options for Student (P12). Clearway also agrees that Student is not a “sexual predator” but does not feel that it can provide the necessary social skills support for Student and as such, did not reverse its decision (Flouton, P7).

26. The School District continued to ask for releases in January and February 2002 to send packets to schools. It also asked Mother for a release to get information from Dr. Streff and Dr. Wangh and a release to obtain records from Hillside because the only information it had was Student’s transcript and attendance records (P12). Parents did not provide the releases (Beauregard). Therefore, sanitized packets were sent. Willow Hill and Landmark again rejected Student. Gifford recognized the sanitized information and did not want to pursue the application. St. Ann’s expressed interest in the application and agreed to interview Student. Parent did not agree to having Student considered for St. Ann’s (Beauregard).

27. Student received no interim services in January 2002. During February 2002 the School District sent emails to special educators and assistants in the A-B school system who would be willing to work as a tutor (Beauregard). In February 2002 Student had three home tutoring sessions with Kelli McSweeney, a Masters level special educator for a therapeutic resource room/inclusion program at the Acton-Boxborough Junior High (McSweeney, S17, see also Beauregard, Kolb)8 . During the second session, Student told Ms. McSweeney that she had insulted him by giving him math to do and told her that he would not do any writing. During the third session Student left the room refusing to work. The tutor did not provide any more sessions due to a personal medical emergency (McSweeney). The School District could not find another tutor (Kolb). In late February or early March 2002 Parent located a tutoring program at the Commonwealth Learning Center (Commonwealth) which the School District agreed to fund as an interim program until an appropriate program could be found.9

28. Commonwealth began providing twelve to fifteen hours of tutoring per week to Student four times weekly at the beginning of March 2002 until the middle of June 2002 (S7, Beauregard, Kolb). Student showed an initial reluctance to work on a one-to-one basis but could work for an entire fifty minute session if he was interested in the subject (S7). During high interest sessions involving critical thinking and problem solving skills (math and science) Student displayed a high oral vocabulary and could engage in lengthy discussions and his reading and comprehension skills were well above grade level. When Student was not interested in the subject he had difficulty focusing and often displayed short verbal and written responses. He usually refused to participate and would not engage in writing activities that were more than one sentence. Student also had difficulty moving between the details and the big picture and incorporating his ideas in a sequential manner (S7, Kolb). He displayed limited use of study skills and Commonwealth’s attempts to help him were often met with resistance (S7).

29. At Commonwealth, Student also struggled with word retrieval and required additional time to synthesize his ideas. In addition, Student was often impulsive and/or rigid in his answers even when presented with other factual information. He also had trouble accepting criticism in his written and oral work and, when presented with changes in routine, Student often took extended time to adjust (S7). In situations were Student was unable or unwilling to express his ideas, he typically withdrew to a secluded spot and curled up in a fetal position in a chair or on the floor. In other instances Student would leave the building and pace back and forth in the parking lot. If further interaction was attempted, Student would typically become verbally threatening and hostile (S7).

30. The School District also continued to request consent to evaluate Student (Beauregard). Parents continued to believe that Student did not require any further evaluation because three evaluations were done within the last two years and that if done by the School District they would be non-comprehensive. ( see generally P23, P24). TEAM meetings occurred on March 7, 2002 and in April 2002. In April 2002 the Parties agreed at a TEAM meeting to having an outside agency conduct the evaluation. Three outside sites were suggested by the TEAM. Parents only agreed to have the North Shore Children’s Hospital (NSCH) conduct the evaluation (P15). Parents’ attorney contacted NSCH, went over the proposed evaluations to be done and set up a date of May 20, 2002 for the evaluation. (P26). On April 24, 2002 the School District authorized and agreed to fund the evaluation and invited NSCH to attend the TEAM meeting to discuss the evaluation results (S10, see also P16, P14). The evaluation was completed in early June 2002. Parents wanted to meet privately with the NSCH Diagnostic Evaluation Team (DEC) to review the results first believing the evaluation to be an independent evaluation. The School District believed that they contracted for a school evaluation and proposed that either a preview meeting with Parent and one school representative occur before the TEAM meeting or postpone the TEAM meeting until after NSCH and Parents had reviewed the reports (P19). Parents filed a request for an emergency hearing on this issue on June 24, 2002. The issue was resolved through prehearing and the matter was continued by mutual agreement to allow the TEAM to reconvene to develop an IEP for Student after completion of the evaluations.

31. The 2001-2002 school year ended without acceptance at another program (Kolb).10 The School District offered to increase the tutoring time from twelve hours per week to twenty to twenty-five hours per week to make up for services not received in January and February 2002. Parents chose to reduce Student’s time at Commonwealth four hours per week so that Student could attend some morning camp programs (S8, Kolb).

32. Student was assessed by NSCH’s DEC team on May 20, 2002 and May 22, 2002(S11). The DEC team consisted of a neurologist, an occupational therapist (OT), a child psychologist, a speech-language pathologist (SLP), a nurse and a neuropsychologist. At NSCH the nurse conducts her evaluations and coordinates the medical information. The neuropsychogist reviews the prior assessments and records, conducts the nueropsychological evaluation and emotional assessments, coordinates with the other members of the team and writes the report (Warner). Dr. Warner was the neuropsychologist for this team. She has been a licensed psychologist since 1991 and has clinical experience since 1986 in hospital and in school settings (Warner, S17).11 The DEC evaluation and previous evaluations showed consistent difficulty with attention regulation and generalized executive function deficits characterized by difficulty formulating goals, planning, controlling attention, inhibiting impulses and decreased ability to regulate and control behavior (S11, Warner). During unstructured situations such as social interactions, Student could be easily be overwhelmed by anger, frustration and emotional and behavioral explosiveness, especially in situations that he perceives as too complex or overly demanding (S11, see Warner). He showed poor pragmatic skills with every examiner; compare S11 (staffing conference summary reports).

33. The DEC team however did not feel that Student had a language-based learning disability because previous and current speech/language testing showed strengths in single word vocabulary, use of inference, rote memory and decoding, and he was able to use nonliteral language and enjoy humor and sarcasm. Student however did show language deficits because his impulsivity, disorganization, lack of self-reflection and concrete thinking for social situations were found to negatively affect his ability to find the words he wants, to think critically, make appropriate inferences, sequence his thoughts and get the “big picture” (S11, Warner).

34. The DEC team also concluded that Student may not meet the criteria for NLD. The DEC team noted that:
his [Student’s] visual-spatial skills were not weak and he did not have difficulty with mathematics. The other NLD criteria with which student does struggle include: poor pragmatic language skills, impaired reasoning and concept formation; a tendency to get lost in the details to the detriment of the “big picture”; and social–emotional difficulties which may include anxiety or depression. These issues could also suggest Asperger’s Syndrome. Some research has suggested that people with Asperger’s Syndrome typically have the neuropsychological characteristics of NLD, such that the two disorders may be interrelated. Again [Student] meets enough of the criteria for Asperger’s that his score on the Asperger’s Syndrome Diagnostic Scale is elevated, but he also manifests additional symptoms that are not generally indicative of Asperger’s.

35. The DEC Team also concluded that student had average to above average cognitive ability and attributed lower testing scores to Student’s oppositionality (Warner).12 Student showed no signs of mania, delusions or thought disorder during the psychiatric interview, however, the DEC team felt that their observations and the clinical interviews showed that Student met the criteria for a clinically significant emotional disturbance (S11, Warner). During speech/language testing Student repeatedly asked to play “Chutes and Ladders”, a game typically enjoyed by younger children (S11).13 The child psychiatrist noted that Student looked and acted like a younger child even though his conversation demonstrated relative strengths in language and abstraction (S11). The DEC Team also agreed that:

“ Student had a rigid and very fragile sense of self….He is suspicious of others and hypervigilent and overly sensitive to the tiniest of slights. Sometimes his guardedness and suspicions may reach nearly paranoid levels… He has only the barest of controls on his behavior”.

The DEC team also noted that:

“ Whether [Student’s] current behavioral and emotional issues arose out of his frustrations in school or whether the behaviors and psychological missteps preceded his ability to learn, the present situation has reached a level where [Student] is unlikely to function well, much less to learn to his potential unless his emotions and behaviors are addressed first. If he is so unable to manage himself that he spends the majority of the school day out of the classroom, then his learning will be minimal. Attending to the psychological factors that are impeding his progress must be the priority in choosing a placement for [Student].”

The DEC team made the following recommendation for placement:

“ [Student] may do best in an educational setting that is psychologically supportive and success-oriented…He is likely to do best in a small educational program with a high teacher: student ratio…An ideal program would be capable of dealing on-site with any behaviors that might arise. In addition to those interventions described below, such a setting would have access to psychiatric consultations and have a psychotherapeutic focus. Social skills training and management of feelings are likely to be crucial to [Student’s] success in an educational program. Ongoing evaluation of [Student’s] thought processes and his ability to ‘contain’ his thinking, feeling, and behavior are likely to be very important.”14

36. The TEAM first met on July 26, 2002 to review the evaluations. There were three additional meetings during the summer (Kolb, Emmons). The Parents were at each meeting given the opportunity to suggest revisions to the IEP and to express their views (Kolb, see S12). Dr. Warner attended the first Team Meeting to discuss the results of the evaluation. Parents and their Counsel felt that the NSCH report presented a new diagnosis of Asperger’s Syndrome and that the placement recommendations suggested that Student should be educated in a less restrictive environment. Dr. Warner and the School District TEAM members did not agree (Warner, Beauregard, Kolb). Dr. Warner attempted to discuss her findings and answer Parents’ questions but was often not allowed to finish her answers because Parents and their Counsel would interrupt (Warner).

37. Dr. Warner was also present on July 31, 2002 when the Parent and Parent’s attorney met with Dr. Robert Caggiano, the NSCH Director of Psychology, to obtain “clarifications” of the report after the Team meeting (Warner, P27)15 . Dr. Caggiano had never met the Student nor had he participated in the team discussion that led to the development of the DEC evaluation (Warner, see P27). On August 8, 2002, Dr. Caggiano sent correspondence to Parent’s Counsel to clarify some of the issues raised at the meeting. The letter clarifying some of the issues contained a signature line from Dr. Warner but was not signed by her nor did she have an opportunity to read the letter prior to its issuance. She agrees with the report but does not completely agree with the letter . In regards to placement, the clarification letter states that “[Student] would best be served in a setting that is psychologically supportive and can help him restore his sense of self worth and academic confidence. The setting should not be primarily psychiatric based or a setting with primarily behaviorally disordered teens” [Student] …has many characteristics consistent with PDDNOS/Asperger’s Syndrome profile. A school that is intellectually challenging and can at the same time address his nonverbal social skills problems typical for this population would be best.” In regards to behavioral contracting Dr. Caggiano stated that “These children do not respond well to behavioral contracting or reward punishment system [sic] but need frequent verbal praise and gentle processing of complicated social interactions.” (P27).

38. On August 28, 2002 the School District sent Parents the IEP developed at those four TEAM meetings. The Parents’ concerns and vision statement were added to the IEP as well as many of the suggested accommodations. Parents’ goal for social scripting was added into the IEP. The IEP also included the recommendations from NSCH. ( compare S11, S12, Kolb). The Parents and their Counsel strongly believed that Student should continue to attend tutoring from Commonwealth and continue with his social language/pragmatic group and have access to regular education inclusion classes through the Acton-Boxborough Regional High School with a one-to-one assistant in class. Id. The school TEAM continued to strongly believe that Student needed a therapeutic placement and did not believe that Student currently had the skills/readiness to be successful in a public school setting. Id. The IEP called for a private day placement (location to be determined). The plan was to continue pursuing a private day placement that is appropriate for [Student’s] emotional/behavior and academic needs. Acton-Boxborough urged the parents to consider a placement at St. Ann’s.

39. The School District sent, with Parents’ consent, a referral to St. Ann’s (S13). Student’s packet was also sent to Willow Hill (Emmons)16 . In September 2002, Willow Hill rejected Student’s application because they did not have a therapeutic component to meet his needs. A referral also went to the League School’s Asperger program (Beauregard). League rejected Student. Id. St. Ann’s however, was willing to interview Student (Emmons, S13). Mother told St. Ann’s that she did not think Student was appropriate for St. Ann’s because the curriculum would not be sufficiently challenging, there would be no academic or social peers, the behaviors of the other students with whom he would interact were too extreme, the school would not provide positive role models for Student and it is not a school where Student could remain for four or five years because it only goes until the 10 th grade (Powers, see S14). (Powers). Therefore St. Ann’s sent the application back to A-B (Powers).

40. St. Ann’s Home is a private 766 approved therapeutic day and residential school servicing 150 students ages six through seventeen years from twenty five different school districts in Massachusetts and southern New Hampshire (Powers). Although St. Ann’s does provide outpatient treatment and has a psychiatrist on staff it is not considered a psychiatric hospital based program. Thirty percent of its student population has never been hospitalized. Id. The school only goes until the 10 th grade to maintain a challenging curriculum. Id. Two thirds of St. Ann’s students are able to go to a less restrictive setting. Of those that remain until the tenth grade, one third will make a lateral transition. All students who leave St. Ann’s do so with an individualized transition plan. Id .

41. Student’s proposed class would be in the adolescent section. He would be grouped in a homeroom according to his academic level and would receive individual psychotherapy, training in psychosocial skills throughout the day and would participate in a peer group run by a psychotherapist. Student would also be assigned to a psychologist who has a great deal of specialized training in working with students with Asperger’s Syndrome. Student would also receive his speech/language therapy and additional pragmatics instruction from the speech language pathologist on staff and could receive occupational therapy services and consultation from St. Ann’s occupational therapist. St. Ann’s behavioral component is interwoven through all parts of the day. The program focuses on improving self-esteem and mastering social skills and interactions in a less restrictive setting. There would be eleven students, including Student, in the proposed classroom. Of the ten potential peers, three would be a good cognitive match for Student and would probably be grouped with him. One of those three peers would be the “perfect peer” in terms of similarities to Student (Powers). That peer has been in the program for two years and has shown progress there. Id. Five of the remaining seven peers have average to above average cognitive ability and average to above average math and reading skills. The remaining three students have low average IQ scores but display average to somewhat below average reading and math scores. ( compare S15). All are similar to Student in that they share difficulty with social relationships, have anxiety and difficulty controlling behavioral outbursts. None are behaviorally disordered children and none would be inappropriate for Student (Powers).

42. Student and Mother interviewed at St. Ann’s on October 4, 2002. Mother had previously taken a tour of St. Ann’s in 1999. Id. On this occasion Mother, Student and the day program director (Jane Powers) walked through the school and went into all four of the adolescent classrooms including Student’s proposed classroom. While there Student saw one student he had known at Dearborn and another student who used to attend Acton-Boxborough and plays on Student’s soccer team (Powers). Although neither are in Student’s proposed classroom because they are not at the same academic level, Student would have the opportunity to interact with this Acton-Boxborough student on the bus and with both students during the structured nonacademic periods such as electives and field trips. Id.

43. Parents rejected the placement decision on September 26, 2002 and partially rejected the IEP on October 4, 2002 because the IEP did not include an aide in an inclusion setting and called for weekly therapy at school to address interpersonal and social issues. Parents also rejected several of the School District’s word selections in the summary and present levels of educational performance level sections of the IEP, adding alternate wording suggestions. Parent also added three communication goals to the IEP ( see P12). Parents also asked for a meeting to discuss the placement decision (S12). A meeting was scheduled for October 22, 2002, but Parents did not come because they did not think that the meeting was a proper TEAM meeting because a regular education teacher was not part of the TEAM. (Kolb, Emmons, S12A).17

44. St. Ann’s accepted Student on October 11, 2002 and informed Parents that they felt that they could provide a supportive and challenging academic environment for at least the 8 th and 9 th and possibly the 10 th grade while addressing his social and emotional needs. She also told Parents that there would be some students who could be potential good peers for Student (Powers, S14). Others who are familiar with St. Ann’s also agree that it is an appropriate setting to implement Student’s IEP (Kolb, Beauregard, Emmons, Warner). St. Ann’s agreed to hold the spot until the end of December 2002 (Emmons).

45. The School District has a therapeutic program for 7 th and 8 th graders located at the Junior High, a school containing 800-900 students (Beauregard). These students have varying diagnosis including Pervasive Developmental Disorder (PDD), ADHD, Oppositional Defiant Disorder, Clinical depression, Kleinfelters syndrome and Asperger’s Syndrome. All of these students take all their academic subjects in mainstream classrooms containing twenty to twenty four students. They also receive support from three assistants who go into the class to monitor minor behavioral issues and assist with attention or organizational techniques. (McSweeney). All of these students also receive one forty-five minute session of academic support from a special education teacher who reviews homework, helps students prioritize assignments and provides other support as needed (McSweeney). All are able to transition between classes. The teacher (Kelli McSweeney) is familiar with Student through her three tutoring sessions with him. She does not believe that Student could be successful in her program because Student has difficulty managing himself in a large setting even with support, the program has too many transitions for Student and does not provide the therapeutic support infused into the day that Student requires (McSweeney, see also Kolb, Beauregard, Powers, Flouton, Warner).

46. In September 2002 Student returned to his interim program at Commonwealth (Beauregard). At this time Student began working on the same curricular subjects as the junior high to see what Student was able to do (Kolb). Progress reports show that Student refused to do his language arts homework and was resistant to assistance to help him organize the work (S7). When in October, Student was asked to do a writing assignment, Student curled up into a ball on his chair and stated that he was not going to complete the assignment. On other occasions in October and November however, Student was able to attempt the writing assignment but was defensive when teachers tried to assist him with corrections. He was generally cooperative in math and science and able to complete the tasks and when interested in the subject could engage in the tasks including research and writing assignments ( see S7, Kolb).

47. During this semester Commonwealth issued three incident reports. The first incident report was issued on September 10, 2002 because Student wrote a note to a teacher daring her to kiss him on the lips for ten seconds. Student was able to verbalize the ramifications of his behavior and explain appropriate boundaries between students and teachers. The next day however, Student reached out and poked the tutor. He was able to apologize and the tutorial session proceeded without further incident Id. The second incident occurred on October 15, 2002 when Student was asked to transition from a break back to his language arts tutorial. Student stormed out of the building, pacing back and forth in front of the sidewalk while watching from the front door. After about six minutes, Student left the building, crossed the sidewalk and began walking along Route 20 in Sudbury, MA. He was able to talk to the truant officer and go back inside the building. He could not process the incident with staff and attempted to bolt from the room. When the director closed the door Student began to cry intensely. Student was able to return the next day and finish the week successfully.

48. The third incident occurred on December 16, 2002. During social studies Student immediately proceeded to the computer, refusing to follow the teacher’s directives to come to the table to do his assignment. When told that the computer was only available before or after school or during lunch Student told the social studies teacher that he was eating now. After taking a bite from his sandwich, Student took a drink from the teacher’s water bottle and threw it on the floor. He also refused to open his textbook informing the teacher “you can’t make me”, leaning back in the chair with his feet up. He then unplugged the computer and when the teacher was waiting for the computer to reboot, Student began pushing the other table with his feet causing the table to tilt and the books to fall to the floor. Student refused directives to pick the books up, then proceeded to another cubicle barricading himself into the cubicle wall with various body parts so that neither he nor the teacher could move. He was not able to respond to direction from another teacher and began dialing the phone. At that point the social studies teacher was able to get beyond the barrier and remove the phone. The director told Student that his behavior was unsafe and inappropriate. Student made an inappropriate gesture and started biting his forearm. He was not able to explain what was bothering him and continued to bite his forearm. Student was told that he needed to open the walls or the police would have to be called to ensure his safety. Student responded with “I don’t care” and “Go ahead.” When the police arrived Student was cordial but was not able to offer any explanation. When his mother arrived she told the Director that Student had been ill and may not have been ready to return to school (Kolb, S7A). Commonwealth suspended Student and decided that they could not provide additional tutoring (Kolb).

49. On December 17, 2002 Parents, through Counsel, withdrew Student from School and submitted an intent to home school Student.18 She also filed a motion to dismiss the School’s hearing request because Student was no longer enrolled in the Acton-Boxborough Public Schools. In the alternative, Mother asserts that the hearing should be postponed because she has not had time to develop her home schooling proposal and as such the Superintendent has not had an opportunity to approve it. Although the home school proposal has not been submitted or acted upon by the Superintendent those that are familiar with Student do not believe that a home school environment can provide the integrated therapeutic and academic support that Student requires to achieve a FAPE in the LRE (Beauregard, Kolb, Emmons, Powers, Warner, Floutin).

FINDINGS AND CONCLUSIONS

There is no dispute that the Student is a student with special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. Regardless of whether Student has a nonverbal learning disability or Asperger’s Syndrome diagnoses that need to be ruled in or out, several evaluations consistently show that Student has extensive difficulty with attention regulation and generalized executive function deficits. These deficits are characterized by difficulty with formulating goals, planning and controlling attention, and inhibiting impulses and decreased ability to regulate and control his behavior (S11, Warner). During unstructured situations such as social interactions, Student is easily overwhelmed by anger, frustration and emotional and behavioral explosiveness, especially in situations that he perceives as too complex or overly demanding (S11, see Warner). He shows poor pragmatic skills and difficulty with fine-motor tasks. Although Student does not have a language-based learning disability, Student does have language deficits because his impulsivity, disorganization, lack of self-reflection and concrete thinking for social situations negatively affect his ability to find the words he wants, to think critically, make appropriate inferences, sequence his thoughts and get the “big picture” (S11, Warner).

These disabilities have impaired Student’s ability to be successful in a regular education environment with supports, in the Collaborative and in small structured private settings addressing organizational deficits and one-to-one tutoring situations. In all of these settings Student has refused to do work he does not want to do and has had trouble expressing criticism. He has also displayed verbally explosive and disruptive behavior with teachers and peers and has engaged in threatening behavior. He has also bit himself, curled into a fetal position, bolted from buildings, balanced on a second story banister, played with fire, barricaded himself into a wall and threatened to jump out a window when he is anxious. Student has destroyed property, thrown objects at people and has displayed impulsive and misinterpretation of social cues with both male and female peers leading to punching or hitting to inappropriate comments or behavior toward female peers or teachers. None of this behavior makes Student “behaviorally disordered” or a “sexual predator”, however, the evidence is clear and convincing19 that Student does require an integrated therapeutic environment to address his disabilities, and that such program can not be implemented in a less restrictive setting.

Parents maintain that Student does not require a program geared toward emotional disabilities because his emotional disabilities have arisen out of his frustration in school. Most of Student’s previous placements have been picked by Parents and assented to or supported by the School District over their better instincts. As the North Shore Children’s Hospital’s DEC team indicated: “Whether [Student’s] current behavioral and emotional issues arose out of his frustrations in school or whether the behaviors and psychological missteps preceded his ability to learn, the present situation has reached a level where [Student] is unlikely to function well, much less to learn to his potential unless his emotions and behaviors are addressed first. If he is so unable to manage himself that he spends the majority of the school day out of the classroom, then his learning will be minimal. Attending to the psychological factors that are impeding his progress must be the priority in choosing a placement for [Student].”

The Parties agree that the placement selected to implement Student’s IEP must also meet his academic needs. Student’s cognitive level is above average. Student also requires assistance in writing, fine-motor accommodations such as software or computer substitution for writing and strategies in organization of homework and writing among other agreed upon services and accommodations. The IEP as written incorporates the above, identifies and addresses all of Student’s special needs and is deemed appropriate.

Parents do not feel that St. Ann’s can implement the IEP or that St. Ann’s is appropriate because the curriculum would not be sufficiently challenging, there would be no academic or social peers and the behaviors of the other students with whom he would interact would be too extreme. They also maintain that St. Ann’s would not provide positive role models for Student and is not a school where Student could remain for four or five years because it only goes until the 10 th grade (Powers, see S14). While at first blush these may appear to be valid concerns, the evidence shows that St. Ann’s is not a psychiatric program, that St. Ann’s can provide a challenging curriculum individualized to Student’s needs, can provide appropriate therapeutic services and the speech/language therapy services and occupational therapy consultation Student requires and will place him in a classroom with academic and social peers. It can also provide the integrated social-emotional supports that Student requires to develop and master social skills and social interactions he will need in order to achieve academic success and move to a less restrictive school and eventually work setting. St. Ann’s will hold an opening for Student until the end of December 2002. Parents are strongly urged to take advantage of this opening and allow the School District to implement his IEP in this setting.

Parents and their Counsel maintain that this matter should not have been allowed to go forward because it is either not ripe or moot because Parents have withdrawn him from school and have submitted a home schooling plan to the Superintendent. Parents have submitted a proposal to submit a home school plan but have withdrawn him from any school program prior to making their proposal for home schooling. Parents planning to educate their children at home must notify the superintendent or school committee before removing the child from the public school. “Prior approval of the superintendent or [school] committee is a prerequisite to removal of children from school and to the commencement of a home schooling program; Care and Protection of Ivan, 48 Mass. App. Ct. 87, 89 (1999). Removing a fourteen-year-old child from school prior to approval yields the Student truant. Student is still enrolled in the Acton-Boxborough School District. As such, the School District has the right to bring forward a due process proceeding in this forum to ensure that Student, pursuant to the School District’s legal obligation to do so, will receive a free appropriate public education in the least restrictive environment. As such, the matter is not moot.

In reviewing a home schooling plan, all Massachusetts school districts must determine if that plan provides for an education of the student that “equals in thoroughness and efficiency and in the progress made therein, that in the public schools [of that district]…” M.G.L.c.76 §1. If Student was receiving his special education and related services in his home district a free appropriate public education in the least restrictive environment for Student would mean that Student would require in his home school program an integrated therapeutic program that would address his executive functioning deficits and social emotional needs as described above.

Care and Protection of Charles and Brunelle v. City of Lynn , addresses the approval of a home-based regular education program and gives the authority for approval to the Superintendent or local school committee. The superintendent, in reviewing the plan for this special needs student, will make a determination about whether the Parents’ plan when submitted would equal the “thoroughness and efficiency” and the progress if in a public school program (including a public school endorsed out of district program). Parents have supplemented their proposal for a home school program. If Parents do not choose to send Student to St. Ann’s, the Superintendent will, using the procedures established in Care and Protection of Charles , Brunelle v Lynn Public Schools, and Care and Protection of Ivan ,20 and the determination of FAPE in the LRE for Student, will make a decision regarding the home school plan if pursued by Parents.21

ORDER

The IEP for St. Ann’s Home provides Student with a FAPE in the LRE. As such, Acton-Boxborough will immediately arrange for Student to receive his educational program there.

By the Hearing Officer,

Joan D. Beron

Date: December 27, 2002


1

Aaron is a psuedonym used for confidentiality and classification purposes.


2

Parents chose to pursue legal issues with the Clearway School (Clearway) through the Massachusetts Department of Education’s Program Quality Assurance Division (PQA). PQA made a preliminary finding that Clearway acted appropriately in regard to Student. Parents chose to pursue further action with PQA. The appropriateness of Clearway’s actions have not been put before the Hearing Officer by either party nor is Clearway a party to this action. The Hearing Officer will not determine whether Clearway acted appropriately. Findings regarding Clearway will be used to determine whether Student requires a therapeutic day program.


3

Parents’ exhibits were submitted on June 20, 2002 concerning their original hearing request. Parents did not submit any further exhibits. Parents exhibits were taken “de bene” with an opportunity for objection from the School District and were admitted without objection. The Hearing Officer admitted the completed Clearway behavior plan (S3A), a December 16, 2002 incident report “de bene” and progress notes to supplement testimony (S7A-B), correspondence regarding an October IEP meeting (S12A) and resumes of witnesses from School District witnesses who also supplemented testimony (S17) and correspondence both Parties alleged was in Parents’ document packet (P27). These exhibits were admitted without objection.


4

The Hearing Officer, on her own motion, sent Parents’ Counsel copies of the hearing tapes and correspondence informing her that the closing arguments would be due on December 23, 2002. Parents’ Counsel presented her motion to dismiss in the closing argument along with an offer of proof regarding Parents’ testimony and the cross-examination they would have presented if allowed to present its case in January or February 2003. The offers of proof regarding alleged procedural violations, to be heard in January 2003, were withdrawn by the Parents. Parent was given an opportunity to present and cross examine witnesses in the School District’s case but chose not to do so. As such, the School District’s request to exclude the offers of proof are Granted.


5

The School District moved to move the second day of hearing from December 17, 2002 to December 18, 2002 with assent of the Parents. The request was GRANTED.


6

This was Student’s first suspension at Clearway. Clearway admits that a Functional Behavioral Assessment was not conducted nor was the TEAM reconvened. The regulations do not require either to occur for suspensions of less than a ten day period; see generally IDEA discipline regulations Section 1415.


7

Parents alleged in their hearing request that procedural violations occurred at this meeting. Parents withdrew their hearing request. As such, allegations regarding procedural violations will not be addressed. Parents’ rights to present a new matter within the limitations period is noted along with the School’s right to file objections.


8

Ms. McSweeney also has five years experience as a program specialist for the New England Center for Children.


9

Parent, in her closing argument, alleges that Commonwealth is an inappropriate interim placement and as such A-B denied Student a FAPE. In the postponement request Parent asserts that Commonwealth is an appropriate interim placement. Issues regarding the agreed upon interim programming were not articulated in the Parent’s hearing request nor in any prehearing conferences. (There were issues regarding the procedure for receipt of progress reports). Parents withdrew their hearing request and did not appear in this proceeding and as such issues regarding compensatory education for this period were not explored and will not be addressed in this proceeding. The Parents’ right to address this issue in another proceeding within the limitations period and the School District’s right to defend any such action is noted. Issues relating to Commonwealth will be addressed in regard to the issue of whether Student requires a therapeutic program to address social emotional needs.


10

The Parties agreed at prehearings to explore and/or send Student’s packets to several schools including St. Ann’s and several suggested by Parents.


11

Dr. Warner’s resume also lists three research experiences and ten presentations and publications.


12

Achievement testing done by Commonwealth in July 2002 revealed average to above average skills in math and language arts (S9).


13

Chutes and Ladders is geared for children ages 3-6 years.


14

The NSCH evaluation also included recommendations for an updated medical evaluation, weekly psychotherapy, a Parent’s group and organizational strategies such as note taking, study skills, outlines and graphic organizers, extra time for tests, extra time in testing, oral and multiple choice exams, use of a tape recorder, shortened homework assignments and a homework notebook, and structured writing strategies such as brainstorming, organization through a template or graphic organizer, and rough drafts edited separately for content, then grammar, then spelling, then punctuation. Other recommendations included word processing programs, keyboarding instruction or voice recognition software instead of handwriting for long assignments, practice of a legal signature and a social pragmatics group. Commonwealth recommended concept imagery strategies and that alternate strategies for writing be explored (S9). These recommendations are not in dispute ( see S12).


15

Both Parties assumed that this document was included with Parent’s exhibits but was not. The Hearing Officer is including this with Parent’s exhibits without objection.


16

Other placements including placements at schools servicing Student’s with Aspberger’s Syndrome were also explored. Student was not accepted at any of these placements.


17

Parent’s assert that the IEP was not a complete IEP because a public school teacher was not part of the TEAM. Parent’s withdrew their hearing request alleging procedural violations and did not appear at hearing. This will not be addressed at this time. For general guidance regarding this provision see IDEA Appendix A # 24.


18

Parents’ Counsel filed supplemental information with the Superintendent on December 20, 2002.


19

A peponderance of the evidence standard is the standard required. The School District has met and exceeded that standard with its evidence.


20

Care and Protection of Charles, 399 Mass 324(1987) established procedures for a home school program. Brunelle v. City of Lynn, 428 Mass 512 (1988) established that home visits cannot be a condition of approval and Care and Protection of Ivan , 48 Mass. App.87 (1999) reaffirmed the School’s right to evaluate and monitor home school plans


21

The School District also has a right initiate truancy proceedings if a Student is not attending school or initiate a Care and Protection in the Court of appropriate jurisdiction if it feels that a Parent has rejected services that would deny a FAPE to Student.

 

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