Barry v. Boston Public Schools and Department of Social Services – BSEA #03-0044



<br /> Barry* v. Boston Public Schools and Department of Social Services – BSEA #03-0044<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Barry* v. Boston Public Schools and Department of Social Services

BSEA # 03-0044

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on September 10 and 11, 2002 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Father

Sandra Montand Interpreter, Families First

Carol Golden Clinical Director, Orchard Home and School

Rachel Werlin Educational Supervisor, Orchard Home and School

Patricia Antonelli School Psychologist, Boston Public Schools

Lynne Johnson Assistant Program Director, Boston Public Schools

Sandra Baler-Segal Citywide ETF, Boston Public Schools

Hyacinth Loathman Assistant Program Director, Boston Public Schools

Antero Teixeira Social Worker, Department of Social Services

Jenny Chou Attorney for Student

Marlies Spanjaard Attorney assisting Ms. Chou

Shruti Desai Attorney assisting Ms. Chou

Alissa Ocasio Attorney for Boston Public Schools

Elizabeth Kurlan Litigation Unit, Boston Public Schools

Andrea dos Santos Law Clerk, Boston Public Schools

Diane Curran Attorney for the Department of Social Services

The official record of the hearing consists of documents submitted by the Student and marked as Exhibits A through O; documents submitted by the Boston Public Schools (BPS) and marked as exhibits S-1 through S-9; one Exhibit submitted by the Department of Social Services (DSS) and marked as Exhibit DSS-1; and approximately 12 hours of recorded oral testimony and argument. As agreed by the parties, closing arguments were made orally on September 11, 2002, and the record closed on that date.

* Barry is a pseudonym for the Student in this dispute.

ISSUES PRESENTED

1. Is the IEP for May 2002 to May 20031 proposed for Student by the Boston Public Schools reasonably calculated to provide Student with a free appropriate public education?

2. If not, would a residential educational placement at the Orchard Home and School meet said standard?

3. Should the Department of Social Services be ordered to provide services?

PROCEDURAL HISTORY

Student filed his Request for Hearing on July 2, 2002. A Pre-hearing Conference was held on August 2, 2002. On August 5, 2002, Boston Public Schools (BPS) filed a Motion to Join the Department of Social Services (DSS), which Motion was allowed by Ruling of the Hearing Officer, dated August 30, 2002.

In response to a concern that BPS may terminate funding at Student’s current placement prior to a Decision being issued by the Hearing Officer, Student filed a Motion for Emergency Order for Placement Pending Appeal . The Parties negotiated resolution of this aspect of the dispute whereby BPS agreed to continue funding at the Orchard Home and School (the Orchard) to September 13, 2002, and the Hearing Officer was requested by the Parties to issue an Order regarding placement on or before that date.

On September 9, 2002, this matter was reassigned to the present Hearing Officer for administrative reasons.

On September 12, 2002, the Hearing Officer issued an Order in advance of the full text of a Decision in this matter, continuing placement at the Orchard. See Appendix I.

PROFILE OF STUDENT AND IEP

Student is a thirteen-year-old boy (DOB 10/19/88) whose divorced Parents reside in Boston. Student has significant delays in both expressive and receptive language skills, and has emotional and behavioral deficits. These limitations affect his ability to make progress in all academic areas. He has been diagnosed with Post Traumatic Stress Disorder, Conduct Disorder, Bipolar II Disorder, Depressive Disorder NOS, Language-Based Learning Disability, Oppositional Defiant Disorder and Obesity; he has had multiple psychiatric hospitalizations; and he takes multiple medications to address his mood, aggression, attention and depression. Testimony of Antonelli, Golden, Werlin; Exhibits S-3, S-5, S-7, A-24, G-1, G-10, I-1, O-3.

Since March 2001, Student has been receiving voluntary services from the Department of Social Services (DSS). Following a psychiatric hospitalization and pursuant to an agreement among the Parties, Student was placed at the Orchard (a residential placement in Watertown, MA) in July 2001. DSS and Boston Public Schools (BPS) have shared the cost of the Orchard placement. Student has continued to reside at the Orchard during this dispute. Stipulation of Parties; testimony of Father, Werlin, Teixeira.

A Team meeting was held at the Orchard in May 2002. Pursuant to that meeting, BPS proposed its most recent IEP which calls for Student to attend the McKinley Middle School in Boston. Were Student to attend this school, he would continue to need residential services (at the Orchard, a group care facility or specialized foster home) rather than returning home to live with one of his parents. Testimony of Father, Baler-Segal, Teixeira; Exhibits S-3, I-1.

BPS’s proposed IEP includes the following services: all academic classes by special education staff in a substantially separate classroom; counseling once per week for 56 minutes; speech-language services once per week for 30 minutes; and vocational training twice per week for a total of one hour and 52 minutes. No summer services are included within the IEP although BPS agrees that Student should receive such services. Testimony of Baler-Segal; Exhibits S-3, I-1.

STATEMENT OF THE EVIDENCE

· Student’s Father testified that prior to attending the Orchard Home and School, Student had difficulty in school – for example, not doing his homework, not bringing his school work home, and being sent out of the classroom. Father noted that these problems had been developing for a while. He explained that there have never been any problems or difficulties at home, and there were no “serious issues” between him and his son.

Father testified that although there had been allegations of abuse in the home, these allegations have never been substantiated. He denied that he has ever abused his son, although he agreed that he had attended an educational program, provided or paid for by DSS, to help him learn better how to be a parent to his son.

Father testified that when his son first attended the Orchard, it was very difficult for his son as he spent a lot of time outside of the classroom and he had behavior problems, as reported by the Orchard staff. He noted, however, that there was improvement after approximately six months, and even greater improvement more recently regarding his behaviors and school work. Father noted that his son had recently spent the weekend at home and was teaching keyboarding to his daughter – as compared to a time earlier when his son had no interest in the computer.

Father testified that he hopes that in a year, his son can return home to live with him and his daughter. He explained that what he wants to see for his son is a better future and to be able to live a normal life; he believes that his son can achieve this by continuing to live at the Orchard.

· Rachel Werlin testified that she has been working at the Orchard Home and School for the past three years, first as a teacher for two years, then in her current position as Education Supervisor since June 2001. She also noted that since May 2002, she has had the additional responsibility of acting as the principal. She explained that she has a Bachelors Degree and is working on a Masters Degree, which she expects to complete in May 2003.

Ms. Werlin testified that the Orchard has a therapeutic, educational day program serving 24 children, with 10 of these children (all boys) living in a residential house on campus. She explained that the residential staff bring the boys from the residence to the school each morning, stay with them during the day, and then take them back to the residence. Ms. Werlin noted that at Orchard, the staff/student ratio is 1:3, all teaching staff are certified or on a waiver and pursuing certification, no more than 8 children are in a classroom, there are counseling staff available at all times, and all the children receive 1:1 therapeutic counseling at least once per week. She noted that every staff person at Orchard is trained to de-escalate children and to use physical restraint as a last resort in order to keep the children and staff safe.

Ms. Werlin testified that a level system for privileges is used consistently within the school and residence, and the behavior management system (including its structure and expectations) is identical within these two contexts and is individualized to each child. She noted that this allows reinforcement from day to evening and vice versa. She explained in some detail the comprehensive behavior management and privilege systems at Orchard. The Orchard privilege level system is described in Exhibit E-1.

Ms. Werlin testified that Student came to Orchard in July 2001. She explained that she got to know Student well as she was his teacher in a self-contained classroom from November 2001 to January 2002, and that she has worked directly with him regarding many of his behavioral incidents. She stated that she observed his inability to understand what was happening in the classroom and how to participate in class; Student might then become aggressive, for example flipping over a desk and then having to leave the classroom.

Ms. Werlin testified as to progress made by Student, noting that he initially hated school, but now likes school and has become more of a leader and takes pride in his school and residence. She explained that since January 2002, Student’s anger, impulsivity and behavior have improved, and he now more frequently acts appropriately and follows directions. She noted that Student had been out of the classroom for behavior reasons approximately 70% of the time when he began at Orchard, and this has been reduced to approximately 30% of the time. She noted that this time out of class has significantly limited Student’s educational progress.

Ms. Werlin testified that notwithstanding Student’s noticeable improvements, he continues to deal with a great deal of anger and aggression, he continues to be impulsive, and he has significant difficulty controlling his emotions and behavior — for example, he recently threatened another student and had an hour-long temper tantrum that required time out of the classroom for 1½ hours.

Ms. Werlin testified that Student continues to have difficulty focusing and is easily distracted, jumping from one mood to another; he has very poor social skills and is very needy in terms of social support; and these deficits impact negatively on his behavior. She opined that he needs more time at the Orchard to learn to work with his aggression and control his anger, to take responsibility for his actions and to connect with his feelings so that he can relate safely and appropriately with staff and peers without staff intervention.

Ms. Werlin testified that Student’s behavior difficulties occur during the school day and at the residence, although at the residence there is not an academic structure, there is more free time and therefore there is a different response to behavior problems at this time. Ms. Werlin explained how through weekly and monthly meetings, the staff and teachers at the school and residence continually communicate with each other and coordinate their responses and interventions with Student in order to address his behavior and emotional needs in a consistent and structured manner between the residence and the school.

Ms. Werlin testified that at Orchard, Student receives special education in each of his academic subjects, with teachers trained to use Project Read (a phonetically-based reading program) that is incorporated into each subject area to address Student’s language-based learning disability. Ms. Werlin noted that Student receives instruction in language arts (including a writing block), social studies, math, history, computer technology, art and gym. There currently are 6 children in Student’s classroom and the teacher is often aided by additional staff support. She explained that the academics are tailored within the classroom to particular needs of Student through individual adaptations. She noted that Student also receives individual therapy once each week for 50 minutes, group therapy once each week for 50 minutes, speech-language services once each week for 50 minutes and family therapy with his Father (utilizing an interpreter with his Father who does not speak English).

Ms. Werlin testified that Student has extreme difficulty with transitions and other changes in his program – even one new student can disrupt his learning environment. She stated that it took Student several months just to learn the names of the children and staff, and it took until January 2002 to learn the staff expectations and routines.

Ms. Werlin testified that in order to make educational progress, Student needs consistency of rules, expectations and staff between the school day and evening hours; he needs to understand the school day and evening as a single, consistent approach – for example, his behavior will not be controlled if his actions during the day have no consequences during the evening. She noted that Student also needs immediate consequences during the day and evening in order to continue to address his behavioral needs.

Ms. Werlin testified that she continues to believe to be true the statements made in her letter To Whom It May Concern, dated June 7, 2002, in which she explained that Student’s behavior has interfered with his learning, that he has physically assaulted both staff and students throughout the school year, and that he is unable to display impulse control. The letter also notes that Student is unable to connect his feelings to his actions, making it difficult to accept consequences of his behavior. She also noted in her letter that Student needs the consistency of a residential and school component in order to adequately meet his emotional needs. Exhibit B-3.

· Carol Golden testified that since April 2002 she has been the Clinical Coordinator at Orchard Home and School. She explained that previously she was consulting to school districts. Her resume also indicates that she was Program Director at Greater Lynn Mental Health and Retardation Association from 7/99 to 2/01, was Program Coordinator at Concord-Asabet Family and Adolescent Services from 10/96 to 6/99, and has had other clinical and supervisory positions since 1992 when she received her Masters Degree in Counseling Psychology. See her resume, Exhibit M-1.

Ms. Golden testified that in her role as Clinical Coordinator, she chairs the Multi-Disciplinary Team (MDT) meetings for all students at the Orchard, and she supervises the clinical staff and oversees referrals to the Orchard. She further explained that she had been providing individual and family therapy to Student until 1½ weeks ago when this responsibility was shifted to another clinician. She also noted that she has observed Student in class and at his residence, and she has chaired the MDT meetings regarding Student.

Ms. Golden testified that Student has a diagnosis of Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder; he has a Post-Traumatic Stress Disorder as well as symptoms of depression; and he has a language-based learning disability. She explained that Student has a great deal of anger and aggression – he verbally and physically assaults staff and peers (for example, hitting staff and peers, overturning furniture, and throwing chairs) resulting in physical restraint. She noted that Student has significant difficulty with relations with others (staff and peers) because he is oppositional and does not understand how to relate appropriately to others. She added that Student’s acting out behavior results in his being taken out of the classroom, thereby interrupting the learning experience.

In a letter dated June 7, 2002, Ms. Golden similarly noted that yelling, swearing, asaultiveness and aggression toward peers and staff characterize his behaviors; and that although he is able to control his behavior for brief periods of time, his behavior then decompensates. Exhibits S-7, B-2.

Ms. Golden testified that the most important thing for Student to learn is to control his behavior so that he can interact appropriately with peers and adults. She explained that there are three principal goals, which continue to be worked on at the school and residence: 1) learning to follow rules, 2) establishing relationships with peers and adults, and 3) connecting his feelings with his behaviors. She opined that in order for his education to be effective, these goals must continue to be worked on consistently in all settings, so that, for example, the rules in both places (school and residence) are the same, he is accountable in both places in the same way, and he can be consistently and continually cued and reminded regarding his behavior. She explained that without this consistency, Student would make less (and perhaps no) progress. She explained that Student is still trying to develop ways to use words without acting out (this impacts all aspects of his program), and to identify his feelings.

Ms. Golden testified that Student has benefited from being in a 24-hour setting with consistency and clear rules and structure. Without this integration of and consistency between day and evening, she opined that he would be confused and overwhelmed, and that his behavior would deteriorate. She explained that as a result of the program at the Orchard, Student has made progress, although measured; for example, he is now more willing to take responsibility for his behavior, he uses words (instead of behavior) somewhat more often to express himself, and he has been able to remain more in control of his behavior. But, she noted that it has taken almost a year to reach the point where he has adjusted to the program’s rules and expectations, has developed trust in the staff and program, and has just recently become comfortable with his peers. She opined that this trust would be lost, there would likely be an increase in depression (with possible suicidality), it would be difficult and “frightening” to have new peers, and his behavior would likely deteriorate were he to transfer to another program at this point in time – in short, he “would be back at square one” and it would take months and perhaps as long as a year to get back to where he is now. She noted that his continuation at the residence at the Orchard is the key component to avoiding this regression, although the regression would also likely occur if he stayed at the Orchard residence and changed schools during the day.

Ms. Golden testified that she continues to believe to be true the statements made in her letter To Whom It May Concern, dated July 12, 2002, in which she explained that Student is often “displaying his rage” and requires physical restraints. She then concluded: “With the high degree of therapeutic interventions necessary to keep [Student] safe, it would not be feasible for his father or a less structure environment such as a group home to undertake his care at this time. It would pose a serious risk to all individuals involved.” She further explained that in order to stabilize his behavior, Student must receive a high degree of consistency, routine and structure; also he “needs ongoing observation, and close supervision by professionals trained to deal with his unsafe behaviors in a highly therapeutic environment.” Exhibit B-1.

· Sandra Baler-Segal testified that she has been employed with the Boston Public Schools (BPS) for the past 31 years, most recently as a city-wide evaluation team facilitator for the past 5 years. Prior to this position, she was an evaluation team leader for 8 or 9 years and a classroom teacher for 20 years, all with BPS. She explained that in her role as evaluation team facilitator, she is responsible for coordinating all aspects of the Team meeting for certain BPS students; and she chairs the Team meetings, sends out the IEP and provides notification to parents. She also noted that she has a Masters Degree in education counseling.

Ms. Baler-Segal testified that she first became aware of Student when teachers expressed concern regarding his impulsivity and immature behavior in 6 th grade at the King Elementary School in Boston. Most recently, she explained, she chaired the Team meeting on May 2002 held at the Orchard during which Student’s services and placement were discussed, and it was explained what BPS would offer Student at the McKinley Schools. She noted that at that meeting, there was general agreement regarding the services to be provided Student during the day but disagreement regarding placement – the Orchard staff and Parents opposed changing Student’s services to BPS’s proposed placement at the McKinley Schools. She testified that as a result of this Team meeting, and based on the needs of the Student as explained by Orchard staff, she prepared the most recent IEP for Student.

Ms. Baler-Segal testified that although the most recent IEP does not provide for a summer program, there is agreement by BPS that Student needs a summer program.

· Patricia Antonelli testified that she has been employed with BPS since 1978, first as a moderate special needs teacher until 1981; from 1981 through the present, she has been a BPS school psychologist. She noted that she as a Masters Degree in Education, moderate special needs, and a second Masters Degree in Education, school psychology; she has a certificate of advanced graduate study; and she is licensed as a school psychologist.

Ms. Antonelli testified that she evaluated Student on April 8, 2002; and has come to know Student through this evaluation, through testimony at this hearing, and by reviewing records at the Orchard and reports prepared by BPS. She explained that her evaluation indicated that Student’s academic functioning is severely depressed (at best, he is at the 2 nd grade level) and she found a significant difference (25 points) between his verbal and performance IQ, suggesting a language-based learning disability. She explained that she also did projective testing of Student to determine his emotional needs.

Ms. Antonelli testified that on the basis of her understanding of Student, he needs a small classroom in a therapeutic setting, a behavior management program, individual and group counseling, and family therapy to address his social and emotional issues. She emphasized that Student appears to have ambivalent feelings regarding his family relationships, and that it will be important to resolve these issues regarding his home so that he can be reunited with his family.

Ms. Antonelli testified that she is generally familiar with the Orchard, having visited there (to do evaluations of children) 10 or more times over the past 5 years, but she does not have an opinion as to whether the Orchard is an appropriate placement for Student. Similarly, she stated that she was generally familiar with the McKinley Schools and what they offered pursuant to her evaluations of children there. She also noted that she attended the May 2002 Team meeting at the Orchard, when McKinley placement and services were discussed. She opined that the McKinley placement would be appropriate because it would address Student’s therapeutic, academic and behavior needs. She stated that she saw no reason why he could not transition well into this program, although she agreed that she does not know how much Student may deteriorate as a result of such a move.

Ms. Antonelli testified that Student’s emotional difficulties (depression), his behavior difficulties and his problems regarding motivation all effect his academics. She opined that Student does not need residential services to make educational progress. She agreed that it would be “nice” to address Student’s behavioral issues in his residence, but stated that this may occur wherever he is living, including at home. She also stated that her responsibilities are to address Student’s educational needs, not his residential services.

Ms. Antonelli performed a psychoeducational evaluation of Student on April 8, 2002 for the purpose of assisting with a determination of Student’s appropriate educational placement. Her testing found that Student had a discrepancy of 25 points between verbal and performance IQ, reflective of a language-based learning disability, with a full scale IQ of 83. She further found that his word reading, oral reading, reading comprehension, spelling and arithmetic computation skills are on a late first to beginning second grade level. Finally, her projective testing reflects an angry and frustrated young boy with poor inner controls and significant self-contempt; and he seems to be experiencing feelings of depersonalization and estrangement from his family. In her report, Ms. Antonelli recommended continuation with individualized and small group support to address his academic needs and continuation of therapeutic support to address his emotional needs as well as his relationship with his Parents. Exhibits S-5, G-10.

· Lynne Johnson testified that she has worked for the past 10 years at the McKinley Schools, first as a special education teacher for 3 years and then in her current position as the Assistant Program Director for the McKinley Middle School. She explained that her responsibilities include supervision of all teachers and other staff, various administrative responsibilities within the building, and chairperson of the service team meetings. She noted that she has a Masters Degree in education.

Ms. Johnson testified that the McKinley Middle School addresses the needs of children through academics, behavior management and therapeutic supports. She explained that the classroom in which Student would be placed has a teacher/student ratio of 3:10; it is a self-contained classroom with children aged 13 and 14 who are generally functioning at the 1 st and 2 nd grade level academically; and the children in this classroom have emotional and behavioral issues similar to that of Student. She further explained that Student would be offered classes in language arts (including a reading program), math, social studies, science, art, pre-vocational skills (woodworking), and instrumental enrichment (which addresses cognitive functioning); a language-based approach (which includes Project Read) is integrated into all of the academic classes.

Ms. Johnson testified that at the McKinley Middle School, therapeutic services are offered to students on a daily basis, including guidance advisors (licensed social workers) and therapists (psychiatrists) through a contract with Wedico. She further explained that a comprehensive behavior management program is in place throughout the school, including positive incentives, re-direction and a hierarchy of interventions that ultimately can lead to time-out. She noted that all staff are trained to address aggressive outbursts, including the use of physical restraint as a last resort to maintain safety.

Ms. Johnson testified that an individual plan would be developed to transition Student from the Orchard to McKinley, including a visit by Student and contact with persons currently working with Student. She noted that transitions have been successful with other children now at McKinley.

Ms. Johnson testified that that Student’s needs can be met at McKinley because the services being requested are offered at McKinley. She noted that she has never met Student, has not evaluated him and has not spoken with staff at the Orchard.

· Antero Teixeira testified that for the past four years he has been employed as a social worker with the Massachusetts Department of Social Services (DSS), and that since March 2001 he has been assigned responsibility for assessing the needs and providing support to Student and his family through monthly visits. He explained that DSS’s involvement occurred as a result of Father’s filing a request with DSS for voluntary services. He noted that the case remains one of DSS providing voluntary services. He also stated that there is an outstanding Probate Court Order which provides that DSS may not remove Student from the Orchard without further order from the Court or the Parents’ consent.

Mr. Teixeira testified that when Student was hospitalized, prior to attending the Orchard, DSS considered placement of Student in a group home; however, based on the recommendation of the hospital that a residential school was necessary because of Student’s need of physical restraint, DSS agreed to placement at the Orchard.

Mr. Teixeira testified that DSS is not now considering (nor has it in the past considered) any other placement for Student; but if Student could no longer stay at the Orchard, Student would need a group home provided by DSS. He explained that Student is not able to return home at this point in time because of the high risk due to his behavior difficulties. He noted that DSS has no protective concerns regarding placement of Student with his father.

Mr. Teixeira signed an affidavit that was filed with the Suffolk Probate and Family court on April 18, 2002. In the affidavit, Mr. Teixeira stated that DSS accepted Mother’s request for voluntary services after DSS received an unsupported complaint (pursuant to MGL chapter 119, section 51A) for physical abuse of Student by Father. The affidavit notes additional section 51A complaints filed with respect to Student, some of which were supported and some of which were not. The affidavit also explains that Father has requested DSS services to help manage his son, has been very cooperative and participated in services provided to him, completed the Cape Verdian Nurturing program with his son in the spring of 2001, and has participated in bi-weekly therapy with his son, with the result that Father has been able to re-build his relationship with his son. Exhibit O-1.

· The parties stipulated that the placement of Student at the Orchard was the result of an agreement reached between the parties (including a cost share between DSS and BPS) rather than as a result of a DSS unilateral placement of Student to the Orchard.

· The Orchard’s Comprehensive Treatment Plan for Student, dated 6/10/02 indicates that Student has witnessed violence in his family and has alleged physical abuse by both Parents. The Plan states that treatment should focus on providing Student with a safe, consistent, structured environment where there are clear rules and expectations. The Plan takes the position that within a structured and supportive environment, treatment can focus on assisting Student in following rules, accepting consequences, managing his anger and communicating more effectively with his family. Exhibit A-28.

· Incident Reports from the Orchard dating from 8/6/01 through 8/6/02 document verbal and physical aggression by Student towards staff and peers. The incidents frequently resulted in physical restraint of Student by staff. Exhibits C-1 through C-77.

· For the most recent academic year, Student’s grades are generally “satisfactory”, with a number of “excellents” as well as a number of “unsatisfactories” during the 2 nd and 3 rd quarters. Exhibit H-1.

· A psychiatric progress note dated July 29, 2002 indicates that a complaint was filed by the Orchard pursuant to MGL chapter 119, section 51A as a result of Student’s allegation of abuse regarding a restraint incident. Ms. Golden also testified that the nurse had delayed for several hours checking Student for any injuries.

· A standard form Voluntary Placement Agreement of the Department of Social Services (DSS) was signed by Father and DSS representatives. Exhibit DSS-1.

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute.

1. The Appropriateness of BPS’s Proposed IEP .

FAPE requires that Student’s individualized education program (IEP) be tailored to address his unique needs in a way reasonably calculated to enable him to make meaningful educational progress in the least restrictive environment.4 The First Circuit Court of Appeals has explained that meaningful educational progress includes “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs.”5

BPS has proposed an IEP that would provide Student only with services during the school day at the McKinley Middle School. In contrast, Student has been receiving both day and residential services at the Orchard, and Student argues that these services should continue. The dispute between the Parties therefore is whether Student may be expected to make sufficient educational progress if provided only services during the school day, or conversely whether Student requires a residential placement in order to make the requisite educational progress.6

There is no dispute that Student has serious and pervasive behavior difficulties. These difficulties are well-documented in the record, including the psychoeducational evaluation report by the BPS school psychologist, the testimony of the Orchard staff who have worked with Student, Orchard incident reports and letters from Orchard staff. These behaviors consist of physical aggression involving property, and verbal and physical aggression towards staff and peers, including hitting others, overturning furniture, throwing chairs, swearing and yelling. Although it seems clear that Student has made important progress in this area, he continues to exhibit significant anger and aggression towards others. And, the DSS social worker testified that DSS believes that Student’s behavioral difficulties make it impossible for him to return home at this time. Testimony of Golden, Werlin, Teixeira; Exhibits S-5, S-7, B-2, C-1 through C-77, G-10.

In addition, there was agreement in the testimony of the clinical and educational staff from the Orchard and the BPS school psychologist that Student’s behavioral difficulties impact his education. For example, Orchard staff explained that even after significant behavioral improvements, Student is missing approximately 30% of his class time due to being in “time out” as a result of behavioral incidents; and it is principally the time out of class that has limited Student’s academic progress at the Orchard. The Orchard Clinical Director, who has experience working directly with Student and his treatment team, emphasized that the most important thing for Student to learn is to control his behavior so that he can interact safely and appropriately with peers and adults. The BPS psychologist agreed in her testimony that Student’s behavior impacts upon his education. Testimony of Golden, Werlin, Antonelli.

I therefore find that Student continues to have severe and pervasive behavioral difficulties. These difficulties have a significant, negative effect on his ability to make educational progress. Successfully addressing Student’s behavior is essential to his achieving meaningful educational progress.7

The Orchard Clinical Director and the Orchard Educational Supervisor testified on the basis of their first hand experience with Student as well as their expertise in working with children with these kinds of behavioral problems. Their testimony (and letters) were both credible and persuasive that the only realistic hope of working with and improving Student’s behavior is through a well-coordinated, consistent behavior approach implemented simultaneously within all aspects of Student’s life, including his school and residence. In other words, in order to stabilize and address his behavior, Student must receive a degree of consistency, routine and structure which can only occur in a therapeutic, educational placement that includes both day and residential components (i.e., a residential educational placement). Testimony of Golden, Werlin; Exhibits B-1, B-3.

The Orchard Clinical Director further explained that there are presently three principal educational goals for Student (following rules, appropriate relationships with others, and connecting his feelings with his behaviors), all of which relate to his behavior. Her testimony was persuasive that in order for Student’s education in these areas to be effective, these goals must continue to be worked on consistently in all settings, so that, for example, the rules in both places (school and residence) are the same, he is accountable in both places in the same way, and he can be consistently and continually cued and reminded regarding his behavior both in the day and evening hours. Testimony of Golden.

The importance of such a comprehensive and therapeutic, 24-hour approach is further highlighted by a letter written by the Orchard Clinical Director in which she stated: “With the high degree of therapeutic interventions necessary to keep [Student] safe, it would not be feasible for his father or a less structured environment such as a group home to undertake his care at this time. It would pose a serious risk to all individuals involved.”8 There is no credible evidence presented in this case which supports a different conclusion. It is self-evident that an appropriate educational placement must be one that is safe.

BPS makes several arguments against the need for a residential placement for educational reasons. First, BPS sought to establish that Student is not able to return home because of the possibility of abuse by Father, and therefore the need for residential services is based on family concerns rather than educational needs.

There is no evidence to support such a conclusion. Although allegations have been made that in the past there was abuse of Student within his home, the unrebutted testimony of the DSS social worker and Father is that it is only Student’s behavior that now precludes him from returning home at this time. BPS submitted no evidence indicating that Student is not able to return home because of family-related issues at this time. Testimony of Father, Teixeira.

BPS further takes the position that Student’s behavior needs can be addressed through the McKinley Middle School (a day program) and the behavioral management program within that school, without the need for a residential educational component. In support of this conclusion, BPS points to the testimony of its school psychologist and assistant program director who testified generally that the McKinley program would appropriately address Student’s needs, including his academic, therapeutic and behavioral difficulties. Testimony of Antonelli, Johnson.

For the following reasons, I find that the recommendations and conclusions of the BPS witnesses (regarding Student’s behavior) are not persuasive.

None of the testimony relied on by BPS is based on experience with or observation of Student in the classroom or in his residence. In addition, none of the BPS witnesses has demonstrated expertise regarding significant behavior deficits.9 Moreover, the only BPS witness who evaluated Student (the BPS school psychologist) apparently did not evaluate his behavior needs — her written report did not address his behavior; instead the report made recommendations only with respect to Student’s academic and emotional needs. Testimony of Antonelli, Johnson, Baler-Segal; Exhibits S-5, G-10.

In addition, the opinions of the BPS witnesses regarding Student’s behavior were stated only as general conclusions, without sufficient explanation or analysis to demonstrate an understanding of how such pervasive and severe behavior could be addressed outside of the school day without a residential educational placement. For example, the only BPS witness (the school psychologist) who addressed Student’s behavior outside of the school day, simply stated, without more, that Student’s behavior could be appropriately addressed in any residential setting, including his home.

I note that it is appropriate to proceed cautiously whenever considering such highly restrictive placements as an educational residential school. If there were any other option, less restrictive than a residential placement, which would satisfactorily address Student’s special education needs, it would need to be given preference.10 However, there has been no credible evidence presented in this dispute that supports such an approach.

I have previously found that successfully addressing Student’s behavior is essential to his achieving meaningful educational progress. I further find that a residential educational placement is necessary in order for there to be effective results and demonstrable improvement with respect to Student’s behavior needs. Student therefore requires such a placement in order to be provided with FAPE, and the BPS-proposed IEP should be amended to include this placement.11

I also note that BPS’s proposed IEP does not include summer services. BPS has agreed that Student requires such extended year services. Testimony of Baler-Segal. The IEP should therefore be amended to include summer services.

2. Appropriateness of the Orchard Placement .

The only particular residential education placement proposed by any party is the Orchard Home and School (the Orchard).12 There was ample evidence to support the appropriateness of the Orchard as Student’s residential educational placement. Student has been attending the Orchard since July 2001 pursuant to an agreement between the Parties (including BPS). Stipulation of Parties.

During this time, the Orchard has implemented individualized academic, behavioral and therapeutic services to address Student’s particular special education needs. This occurs through (1) small classes (six children and one or more teachers presently) that are individualized for Student; (2) individual, group and family therapy; and (3) a comprehensive behavior management plan. Student is also receiving academics that specifically address his language-based learning disability. Although Student’s grades have generally been satisfactory, he has not made significant academic progress during his tenure thus far at Orchard. This is most likely attributable to the fact that his behavior remains a significant impediment to his educational progress. Testimony of Golden, Werlin; Exhibit H-1.

It is also noteworthy that notwithstanding the need to address further Student’s behavioral needs, meaningful gains have been made regarding Student’s behavior and his ability to remain in the classroom, improving from being out of the classroom approximately 70% of the time to being out of the classroom approximately 30% of the time as a result of his behavior. Student is now more willing to take responsibility for his behavior, he uses words (instead of behavior) somewhat more often to express himself, and he has been able to remain more in control of his behavior. This improvement in Student’s behavior is critical to his making further academic progress. Testimony of Golden, Werlin.

Through weekly and monthly meetings, the staff and teachers at the school and residence continually communicate with each other and coordinate their responses and interventions with Student in order to address his behavior and emotional needs in a consistent and structured manner between the residence and the school. These and other practices at the Orchard insure a consistency of rules, expectations and staff between the school day and evening hours that is necessary for Student to understand that the school day and evening are a single, consistent approach, thereby allowing Student to make progress with respect to his behavioral deficits. For the reasons explained above, consistently implemented behavior interventions are critical to Student’s continued progress. Testimony of Golden, Werlin.

BPS has not called any witnesses or introduced any documents into evidence that would contradict the appropriateness of the Orchard placement. BPS had only one witness who testified that she is familiar with the Orchard. She was also the only BPS witness who had any first hand experience with Student (through her psychoeducational evaluation of him). She testified that she did not have an opinion as to the appropriateness of the Orchard as a placement for Student. Testimony of Antonelli.

Nevertheless, BPS argues against continued placement of Student at the Orchard, making several arguments in support of its position that Orchard is an inappropriate residential educational placement and that Student can and should be successfully transferred to another placement. For the reasons explained below, I am not persuaded by BPS’s arguments.

First, BPS argues that the Orchard has uncertified teachers. However, the testimony was that most of Orchard’s teachers are certified and that the other teachers have a waiver from the Mass. Department of Education and are pursuing certification. Testimony of Werlin.

Second, BPS argues that the Orchard staff are inexperienced. There was testimony relevant to the experience and/or credentials of the staff working with Student. Testimony of Werlin, Golden. However, the relevant question is whether one may conclude, from evidence in this dispute, that the particular staff working directly or indirectly with Student are so lacking in experience that they are not able to provide him the educational services necessary to provide Student with FAPE. As described above, there was substantial evidence supporting the appropriateness of the services being provided Student at the Orchard placement. BPS provided no expert testimony or other evidence that the level of experience of staff at the Orchard (or their credentials) is negatively impacting Student’s educational services or is otherwise insufficient to provide Student with FAPE.

Third, BPS argues that Orchard staff filed a complaint against itself, pursuant to MGL chapter 119, section 51A, for the mistreatment of Student. Under the terms of section 51A, a complaint must be filed with DSS by certain child care providers when there is reasonable cause to believe that a child is suffering from physical or emotional injury as a result of abuse or neglect. Staff at the Orchard filed with DSS a complaint under section 51A due to allegations by Student with respect to a physical restraint by staff. However, there was no evidence that the complaint was substantiated. Nor was there other evidence indicating that staff at the Orchard were negligent or otherwise acted inappropriate regarding this incident, other than testimony that the nurse inappropriately delayed for several hours checking Student for possible injuries as a result of the restraint. Testimony of Golden; Exhibit K-5.

Finally, BPS argues that Student could successfully transition to another program. The testimony of BPS witnesses was persuasive that BPS would implement an individualized plan which would seek to address possible transition difficulties, as BPS has done with a number of children coming to the McKinley Middle School. A certain amount of regression may be an inevitable part of nearly any transfer of a special needs student and should not, by itself, preclude a change in placement. Moreover, as BPS points out, Student has gone through several transitions over the past year or so at the Orchard, including moving (with the other Orchard residential students and staff) to a different residence house on the Orchard campus, and there have been changes regarding his teacher and therapist. Testimony of Antonelli, Johnson.

However, a transition from the Orchard to a different school (and/or residence) would likely be significantly more difficult for Student than the transitions that Student has experienced at the Orchard. A new school (and/or residence) would entail new rules and expectations, and entirely new staff and students during the day and/or evening.

On the basis of the testimony of those who know Student best, I find that there is a reasonable likelihood that even with BPS’s proposed transition plan, such a change in services and people would result in loss of a significant amount of the progress that has been made to date at the Orchard. In addition, the Orchard Clinical Director was persuasive that Student would likely require a number of months (if not a year) to trust the staff and to understand the expectations of staff so that he would then be able to make additional progress regarding his behavior. She further noted that such a transition may lead to worsening depression and suicidality. In short, a transfer at this time to a new school (and/or residence) would include a high risk of a very significant, negative impact on his educational progress, and may negatively impact his mental and/or physical health. Testimony of Golden, Werlin.

For these reasons, I find that the services and placement at the Orchard are tailored to address Student’s unique needs in a way reasonably calculated to enable him to make meaningful educational progress. Placement at the Orchard is therefore likely to provide Student with FAPE.

3. Services from the Department of Social Services .

The Department of Social Services (DSS) was joined as a party in this matter so that, if necessary and appropriate, DSS could be ordered to provide services to Student. Joinder occurred pursuant to statutory language which allows a BSEA Hearing Officer, in an appropriate case, to determine that the state agency must provide services “ in addition to the program and related services to be provided by the school committee”.13

I and other BSEA Hearing Officers have interpreted the statutory language, quoted immediately above, to mean that if a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party, or, if the agency is already a party, without the need to order that agency to provide services.14

Accordingly, the School District’s special education responsibilities are determined first. Only if additional services may be necessary to ensure that the student will be able to access and benefit from the school district’s special education program and services, would the Hearing Officer then consider whether to order the state agency to provide those additional services. This appropriately maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law.15

In the present dispute, I have determined that the School District (BPS) is responsible for Student’s continuing at the Orchard as a residential educational placement. No party has argued that Student has any additional needs which should be considered by me.

For these reasons, I need not consider further the appropriateness or necessity of ordering DSS to provide services to Student.

ORDER

Student requires a residential placement for educational reasons. Student needs such a placement in order to receive a free appropriate public education (FAPE).

Boston Public Schools shall amend its most recently-proposed IEP to include an educational residential placement for Student. Such placement shall be at the Orchard Home and School in Watertown, where Student is currently receiving educational services.

Boston Public Schools also shall amend its most recently-proposed IEP to include summer services.

By the Hearing Officer,

William Crane

Dated: September 30, 2002

APPENDIX I

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS
and Department of Social Services

In Re: Boston Public Schools BSEA # 03-0044

ORDER

By request of the Parties, this Order is being issued in advance of the full Decision in the above-referenced matter.

A Hearing was held on September 10 and 11, 2002. The record closed after oral arguments on the second Hearing day. On the basis of the evidence and arguments presented at the Hearing and for the reasons to be explained in the full Decision which will be subsequently issued, I make the following findings and conclusions.

Student requires a residential placement for educational reasons. Student needs such a placement in order to receive a free appropriate public education (FAPE).

Accordingly, Boston Public Schools shall amend its most recently-proposed IEP to include an educational residential placement for Student. Such placement shall be at the Orchard Home and School in Watertown, where Student is currently receiving educational services.

By the Hearing Officer,

_________________

William Crane

Dated: September 12, 2002

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Decision Summary

Case name : Barry* v. Boston Public Schools and Department of Social Services

BSEA #: 03-0044

Date issued: September 12, 2002

Representation : Student represented by an attorney

School represented by an attorney

Department of Social Services represented by an attorney

Issues :

1. Is the IEP for May 2002 to May 200316 proposed for Student by the Boston Public Schools reasonably calculated to provide Student with a free appropriate public education?

2. If not, would a residential educational placement at the Orchard Home and School meet said standard?

3. Should the Department of Social Services be ordered to provide services?

Facts : Student is a thirteen-year-old boy who presents with significant delays in both expressive and receptive language skills, and has emotional and behavioral deficits. These limitations affect his ability to make progress in all academic areas. He has been diagnosed with Post Traumatic Stress Disorder, Conduct Disorder, Bipolar II Disorder, Depressive Disorder NOS, Language-Based Learning Disability, Oppositional Defiant Disorder and Obesity; he has had multiple psychiatric hospitalizations; and he takes multiple medications to address his mood, aggression, attention and depression. Following a psychiatric hospitalization and pursuant to an agreement among the Parties, Student was placed at the Orchard in July 2001. DSS and Boston Public Schools (BPS) have shared the cost of the Orchard placement. Student has difficulty with managing his aggression and anger, and it is DSS opinion that the Student should remain in residential placement. The School testified that the McKinley Middle School (day program) in Boston is the appropriate placement for the Student. The School takes the position that Student’s behavior needs can be addressed through the McKinley Middle School and the behavioral management program within that school, without the need for a residential educational component.

Ruling: Student should remain at Orchard School and Home. Student’s behavior must be addressed in order for meaningful educational progress. A residential educational placement is necessary in order for there to be effective results and demonstrable improvement with respect to Student’s behavior needs. Student therefore requires such a placement in order to be provided with FAPE, and the BPS-proposed IEP should be amended to include this placement. The School District (BPS) is, therefore, responsible for Student’s continuing at the Orchard as a residential educational placement.

Prevailing Party : Student

Hearing Officer : William Crane


1

Exhibits S-3, I-1.


2

20 USC 1400 et seq .


3

MGL c. 71B.


4

For a more complete explanation of this standard and the legal authorities upon which it is based, see part A of the Findings and Conclusions section of In re: Arlington , BSEA # 02-1327 (July 23, 2002).


5

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”).


6

Courts have similarly phrased the issue when parents have sought a residential placement. E.g., Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001) (issue is whether student “can reasonably be expected to make academic progress outside of a residential program”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (issue is “whether the child requires the residential program to receive educational benefit”); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983) (“court ordered residential care only upon a finding that the minimal educational benefits to which [student] was entitled could not be obtained in a day program alone; rather the kind of training he needed had to be given round-the-clock, thus necessitating placement in a residential facility”).


7

Courts have noted the importance of addressing behavior issues that impact upon educational progress.

E.g. Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001):

If the problem prevents a disabled child from receiving educational benefit, then it should not matter that the problem is not cognitive in nature or that it causes the child even more trouble outside the classroom than within it. What should control our decision is not whether the problem itself is “educational” or “non-educational,” but whether it needs to be addressed in order for the child to learn. . . . [T]he record here does not permit the conclusion that A.C.’s behavior problems are separable from the learning process.

The federal special education regulations also make clear the importance of addressing behavior which impedes a child’s learning. 34 CFR 300.346(2)(i).


8

Exhibit B-1. Although the letter was dated July 12, 2002, the Clinical Director testified that the statements in the letter continue to be true in her opinion. Testimony of Golden.


9

The BPS assistant program director works at McKinley where there are students with significant behavior problems, but her role is administrative and she has never met Student. Similarly, the responsibilities of the citywide evaluation team facilitator are administrative. Although the PBS school psychologist presumably has educational and clinical expertise, there is nothing in the record to indicate what expertise, if any, she (or any other BPS witness) may have as to understanding the significant behavioral needs of a particular child such as Student.


10

Walczak v. Florida Union Free School District , 142 F.3d 119 (2nd Cir. 1998) (IDEA’s preference is for disabled children to be educated in the least restrictive environment capable of meeting their needs ); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (Congressional preference that education of special needs students occur in “the least restrictive environment” ); Roncker v. Walter , 700 F.2d 1058, 1063 (6 th Cir. 1983) (inquiry should be made as to whether requisite services “could not feasibly be provided in the non-segregated setting”).


11

Courts have found that a student’s behavior deficits may be sufficiently severe so as to require a residential educational placement. E.g., Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114 (2d Cir. 1997).


12

Although BPS opposes continued placement at the Orchard, BPS did not present evidence regarding any alternative residential educational placement.


13

MGL c. 71B, s. 3.


14

In Re: Ipswich Public Schools , BSEA # 02-4324 (July 16, 2002) and BSEA decisions/rulings cited in footnote 2 of the Ipswich ruling.


15

In Re: Ipswich Public Schools , BSEA # 02-4324 (July 16, 2002) and BSEA decisions/rulings cited in footnote 3 of the Ipswich ruling.


16


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