COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools
BSEA #12-1298
DECISION
This decision is issued pursuant to 20 USC Sec. 1400 et seq., (Individuals with Disabilities Education Act or IDEA), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL ch. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes. At the request of the parties, a Conclusion and Order was issued on November 12, 2011, before the issuance of a full decision on the merits, so that the parties could make immediate educational arrangements for the Student. The Conclusion and Order is fully incorporated by reference and is attached as Exhibit A to this Decision.
The Student in this case is a middle-school aged child who carries diagnoses of depression, school phobia, chronic health problems, and learning issues, who has received tutoring in lieu of school attendance since approximately March 2011. All parties agree that the Student needs a therapeutic day placement to make effective educational progress. At issue is whether the Boston Public Schools’ proposed placement at the McKinley Middle School is appropriate, or whether the Student needs a private therapeutic day placement to meet her needs.
Parent filed a hearing request seeking an order for a private therapeutic day placement on August 12, 2011. By agreement of the parties, the automatic hearing date was postponed and a pre-hearing conference was held on September 20, 2011. A hearing was held on October 26, 28, and November 2, 2011. The record of the hearing consists of Parent’s Exhibits P-A through P-S, the Boston Public Schools’ Exhibits S-1 through S-5(A)-(E), and approximately 6 hours of tape-recorded testimony and argument. The parties presented oral closing arguments on November 2, 2011 and the record closed on that day. Those present for some or all of the hearing were:
Parent
Phyllis McLean Evaluation Team Facilitator, Boston Public Schools
Elizabeth Pinsky, M.D. Student’s Psychotherapist
Harvey Kent Wilson, Ph.D. Private Neuropsychologist
Christine Stella Program Director, McKinley Middle School
Claire Cassidy School Nurse, McKinley Middle School
Heidi Bonito APM, McKinley Middle School
Lori Walsh Student’s former tutor, Boston Public Schools
Laura Malone Classroom Teacher, McKinley Middle School
Marlies Spanjaard, Esq. Attorney for Parent and Student
Bryna Williams, Esq. Attorney for Parent and Student
Jill Murray, Esq. Attorney for Boston Public Schools
Julie Muse Fisher, Esq. Attorney for Boston Public Schools
SUMMARY OF THE EVIDENCE
1. The Student (“Student”) is a friendly, cooperative, well-behaved, hard-working thirteen-year-old young woman who lives with her family in Boston. The parties are in substantial agreement as to Student’s profile. Student has a complex medical history dating back to her premature birth, and chronic health problems including asthma, migraines, fibromyalgia, digestive disorders, and chronic pain. Student has been receiving regular medical treatment and monitoring by various specialists since her birth. (Parent)
2. Student also has been described as a “highly vulnerable and sensitive child.” (P-D) She has a documented history and current diagnoses of major depression, anxiety, and school phobia. Her emotional and medical difficulties appear to be intertwined, and to potentiate each other. If she is feeling ill or in pain, her anxiety and/or depression may worsen, and vice versa. (Pinsky, Wilson, Parent)
3. Student has overall “borderline” intellectual functioning with some skills in the low-average to average range. Her academic skills are significantly below grade level. On the other hand, many of her adaptive skills are age appropriate. Student struggles with low self-esteem.
4. Student is motivated to succeed academically. When she feels safe and supported, and reasonably well physically, she works diligently and productively. When Student perceives that she is physically or emotionally unsafe, feels physically unwell, or feels unsupported by adults, she becomes silent and withdrawn, and is unable to perform academically. Student does not act out behaviorally; i.e., she does not become loud, defiant, disruptive or disrespectful when distressed. Rather, Student “acts in,” becoming very depressed and anxious. (Mother, Pinsky) In the past, Student has experienced suicidal ideation stemming from anxiety and depression that has led to hospitalization. (Mother, Pinsky, Wilson)
5. Student has spent her entire school career in substantially-separate classrooms for children with cognitive limitations, pursuant to IEPs issued by the Boston Public Schools (BPS or School). Student has changed schools several times; she started at the “B” elementary school, then transferred to the “Q” school and then, in third grade, to the “H” elementary school, where she remained for fourth grade (2008-2009 school year). For fifth grade, Student was transferred to the “C” school.
6. From the beginning, Student had frequent absences from school for medical reasons. Beginning in fourth grade at the “H” school, she began missing school due to severe anxiety.1 (Parent, P-D) Student reported that she experienced bullying, and did not feel that her teacher understood or supported her. Parent reported that on two occasions during fourth grade, Student came home with soiled clothing because she had not been allowed to use the restroom. (Student’s digestive issues cause her to need to use the bathroom frequently.) After these incidents, Student became severely anxious when preparing to go to school each morning, and would shake, cry, scream and vomit. (Parent, P-D)
7. In response, Parent enrolled Student in private counseling and continued to send her to school until May 2009, when Student reported suicidal ideation when she thought about going to school. At that point, Parent stopped sending Student to school. (Parent, P-D)
8. In June 2009, Parent obtained a psychiatric evaluation of Student at Massachusetts General Hospital (MGH).
9. The psychiatrist who evaluated Student at that time diagnosed “Adjustment Disorder with Anxiety and Depressed Mood in the context of current ongoing school-related distress. Patient reports increasing anxiety, suicidality, and physiologic symptoms…that worsen in the context of thinking about or returning to current school…” (P-K) The evaluating psychiatrist recommended continued individual psychotherapy, and that Parent “continue seeking alternate academic environment to increase patient’s experience of support and positive engagement in the school environment.” (P-K)
10. In July 2009, Student underwent a neuropsychological evaluation conducted by H. Kent Wilson, Ph.D. of the Learning and Emotional Assessment Program at MGH. Cognitive testing with the Differential Ability Scales—Second Edition (DAS-II)2 revealed a General Cognitive Ability (GCA) in the “extremely low” range (2 nd percentile). The Verbal and Nonverbal Reasoning scores placed Student, respectively, in the 1 st and 2 nd percentiles. The remaining GCA percentile rankings were as follows: spatial reasoning—13 th percentile; working memory—39 th percentile, processing speed—5 th percentile. (P-D, Wilson)
11. Several tests of Student’s language skills indicated significant weaknesses in that area, particularly with specific word retrieval; however, Student scored in the low average range in receptive language, and at the “lower end of normal limits” in a test of ability to follow instructions. (P-D, Wilson)
12. On tests of visual-spatial skills, Student showed a “mix of relative strengths and weaknesses.” She had a relative strength in working memory, but low processing speed scores, and weaknesses in executive functioning. Tests of problem-solving skills revealed “impaired problem solving skills that likely contribute to social difficulties and adjusting her behavior according to feedback from teachers.” (P-D)
13. Academic screening showed that Student was then reading below the first grade level, and had weaknesses in phonological processing. Student’s adaptive functioning skills were below age expectations but were higher than expected given her cognitive weaknesses.
14. Dr. Wilson assessed Student’s social-emotional functioning with behavior rating scales and clinical interviews with Student and Parent. The rating scales indicated “significant internalizing problems including significant symptoms of depression, anxiety, and social withdrawal.” Student also showed “a significant number of somatic complaints.” Dr. Wilson attributed most of these complaints to Student’s medical history, but stated that her anxiety and depression might also be a contributing factor. (P-D)
15. Dr. Wilson noted that in the clinical interview, Student “appeared dysphoric and perseverated on traumas that occurred at school. She stated that she feels suicidal when she thinks about events at school or going back to school. Simply talking about school resulted in tearfulness and apparent anxiety…” (P-D)
16. In summarizing Student’s emotional status, Dr. Wilson provided a diagnosis of major Depressive Disorder, Single Episode—Moderate; Specific Phobia (School Phobia) and Borderline Intellectual Functioning. Dr. Wilson stated that Student was “highly vulnerable and sensitive child…[with]…significant symptoms of depression and anxiety that are contributing to marked problems in her functioning.” (P-D) Dr. Wilson attributed these symptoms to a combination of cognitive limitations, and longstanding physical health concerns, as well as reported bullying at school. (P-D)
17. Dr. Wilson’s recommendations included the following:
· Placement in a “specialized education placement that remediates academic skills while offering daily behavioral and therapeutic support.”
· A transition plan to reintegrate Student into school in light of her school phobia, which would entail daily attendance for increasing amounts of time. If Student continues to refuse school or voice suicidal thoughts, Student should be evaluated for inpatient or partial hospitalization.
· Maximization of Student’s school attendance, with the expectation that she will attend school daily, even for a limited amount of time.
· Encouragement for re-engagement in recreational or other outside activities;
· Continuation of outside counseling
· To address reading weaknesses, individual instruction using a highly structured, multi-sensory phonics-based program such as Wilson, Lindamood-Bell, or Orton-Gillingham, at least 3×45 or 3×50 minutes per week.
· Provision of direct, specific instruction and help with organization and study skills
· Speech-language therapy to address word retrieval and fluency.
18. The BPS Team met to consider Dr. Wilson’s report in September 2009 and issued an IEP calling for a substantially separate classroom within the “C” School. Parent initially rejected the placement at the C, but was persuaded to allow Student to try it after meeting the school nurse and working on a plan to gradually transition Student to school as well as to maintain regular communication between Parent and the nurse. Student began at the C School in the fifth grade in about October 2009 and did well there—including working up to attending for full days– until around November or December of 2009. (Parent)
19. At that point, the school nurse who had been working with Student was replaced by a different nurse. According to Parent, the second nurse did not communicate with Parent consistently. Student felt that the nurse did not hear or understand her. (Parent)
20. Student became increasingly distressed over school, and between May 20 and June 2, 2010, was psychiatrically hospitalized at Franciscan Children’s Hospital (FCH) because of “acute risk to self as evidenced by positive [suicidal ideation] with plan…, increased depressive symptoms, and multiple medical complaints…” (Parent, P-H) Student was discharged to a partial hospitalization program at the Boston Center, where she spent 8 days. The Boston Center discharge summary stated that Student was actively and appropriately involved in group activities. She attributed her emotional distress to school issues including feeling that other students bullied her and that teachers were not supportive or understanding of her health needs. (P-I)
21. According to the Boston Center, Student needed a “small environment in which she feels safe, supported and acknowledged…in a therapeutic school environment in which she is able to receive consistent individual support. She would benefit from a small classroom environment consisting of children with minimal behavioral difficulties. Extensive chaos is likely to lead to feelings of instability and heightened…anxiety and decrease feelings of safety and support…” (P-I)
22. Parent shared these recommendations with the BPS in June 2010. Tutoring was arranged and the parties agreed to reconvene the Team.3 In preparation for the Team meeting, Student underwent an educational evaluation conducted by BPS and a second neuropsychological evaluation by Dr. Wilson. Results of Dr. Wilson’s cognitive and achievement findings that were similar to the results in the prior year’s testing, and showed little academic progress. Dr. Wilson diagnosed Student with Major Depressive Disorder, Recurrent; Anxiety Disorder, NOS, and Borderline Intellectual Functioning. (P-E)
23. Dr. Wilson’s report recommended “an educational placement in a therapeutic school that can support her emotional needs, help her manage pain and medical conditions, and build coping and interpersonal skills, and provide intensive academic instruction.” (P-E) Such placement should include “staff with certified mental health professionals, small group instruction with low student-to-teacher ratio, and, if possible, medical staff on site.” (P-E) Dr. Wilson emphasized the importance of regular, consistent attendance and the use of a gradual desensitization and transition plan to enable Student to return to school. (P-E, Wilson) Academic recommendations (including a recommendation for a phonics-based approach to reading instruction) were similar to those of the prior year. (P-E).
24. The BPS Team convened in February 2011 and developed an IEP covering the period from February 2011 to February 2012. The IEP proposed placement in a substantially-separate therapeutic program and designating the middle school program at the McKinley South End Academy as that placement.4
25. After both the Parent and Student’s therapist visited the proposed program, Parent decided that it would be inappropriate for Student, primarily because of the presence of acting-out peers within the school building. (Parent, Pinsky)
26. On August 4, 2011 Parent accepted the IEP and therapeutic placement but rejected the specific designation of the McKinley School. (P-A)
Program Proposed by School
27. The McKinley Schools are operated by the BPS as a substantially-separate public school program serving students at the elementary, middle, and high school levels in several different buildings. The stated mission of the McKinley Schools is to “provide a highly structured, therapeutic educational setting” for students aged 5 to 22 who “have failed in school and in the community as a result of emotional problems, behavior problems, and/or learning disabilities. The population is not homogeneous in terms of any one of these characteristics, but, rather, the typical student is handicapped to a severe extent by a combination of two or more of these disabling conditions.” (S-3, Stella)
28. The McKinley programs all provide comprehensive educational and therapeutic services, including on-site licensed mental health providers, small group instruction by teachers certified in moderate or severe special needs, and a variety of related services, including weekly psychotherapy. (Stella) At the middle school level, each classroom is staffed by a team, consisting of a teacher, two assistants, a guidance advisor, and APD. (Stella, Bonito)
29. McKinley students have a range of significant emotional and behavioral disabilities, including anxiety, depression, bipolar disorder, reactions to trauma, schizophrenia, ADHD, and autism spectrum disorders, and learning disabilities. Some, but not all, students display acting-out, disruptive behaviors. Students come to McKinley from a variety of places including public and private schools, psychiatric hospitals, and residential programs. (Stella, Bonito)
30. Students are grouped both by cognitive/academic levels and by emotional/behavioral characteristics. The school attempts to separate “acting out” students from those who do not show disruptive behavior, as well as to separate students who “set each other off.” (Stella)
31. The class proposed for Student is a combined 6 th – 8 th grade class housed within the South End Academy, which also contains three other middle school classes as well as the High School program, which is in a separate wing. (Stella) Middle School students are physically separated from the High School students during the school day, but share a common entrance, which is equipped with a metal detector. (Stella)
32. Student’s proposed classroom is for up to 10 so-called “fragile” students, who all are functioning below grade level. According to the program’s director, Christine Stella, these students tend to generally be passive, depressed, and/or school phobic as opposed to disruptive or acting out. (Stella)
33. Student’s classroom teacher would be Ms. Laura Malone. Ms. Malone has a Master’s degree in special education and is certified in moderate disabilities, grades K-12. Ms. Malone testified that the 8 students in her class are aged 11 to 14. Two are female, and six are male. All have emotional disabilities, including anxiety, depression, bipolar disorder, or autism spectrum disorders. All function below grade level academically, at the first to third grade levels, and curriculum is modified accordingly. A typical day in Ms. Malone’s class consists of literacy (reading and writing), math, science or social studies, and specials (art, drama). Students eat lunch in their classroom. (Malone) As stated above, all students receive individual and/or group counseling, and may receive services such as speech, occupational or physical therapy per their IEPs.
34. The school, including the proposed class, uses a point and level behavioral system; students earn points based on behavior related to safety, academics, social skills, and independence. (Malone)
35. The other school-wide behavioral resource is the Planning Center. The Planning Center is a room, staffed by a social worker and/or other staff, to which students are sent for behavior such as work refusal, yelling, or similar disruptions. Students may also go to the Planning Center to take space or regroup. Typically, the students in Student’s proposed class go to the Planning Center when instructed to do so; however, they sometimes refuse and have to be taken there physically. ( Malone)
36. Ms. Malone testified that she had met Student, reviewed her IEP and some records, and believed that Student would be appropriately placed in her class. (Malone)
37. The school nurse assigned to Student’s proposed classroom is Ms. Claire Cassidy. Ms. Cassidy has degrees both in nursing and psychology. She testified that she had reviewed some of Student’s records and met with Parent. She testified that she would get to know Student and establish communications with Parent in order to address her health needs. (Cassidy)
38. Both Ms. Stella and Ms. Malone testified that the proposed program had worked with students who had been out of school for long periods and/or were school phobic. Student would be able to gradually transition into school over a period of time. (Malone, Stella)
39. During this initial adjustment period, Student could be transported individually, but then would need to ride the bus with all students from the South End Academy, including the high school students. (Stella)
40. As stated above, Student’s proposed peers have a range of emotional/behavioral disabilities, within the context of below-average academic functioning. Redacted IEPs for Student’s proposed peers indicate the following:
· Student 1: Mood disorder/PTSD, frequent tantrums/physical reactions in response to instructions.
· Student 2: Schizoaffective disorder, PTSD, hallucinations, all resulting in inattentiveness to severe verbal and physically aggressive outbursts.
· Student 3: Deficits in self-regulation, disorganized thinking, internal stressors, language skills. Quiet, caring, hard-working.
· Student 4: Attentional difficulties, oppositional/defiant behavior, self-stimulatory behavior, requires constant redirection.
· Student 5: Friendly. Mood disorder, academic weaknesses.
· Student 6: Depression, mood instability, deficits in self-regulation.
· Student 7: Friendly, gets along with peers. Pervasive developmental disorder. Talks under breath which can be disruptive. Boundary issues; makes threats when upset. Much time out of classroom.
· Student 8: Friendly, polite. PDD.
41. In June, 2011, Student’s proposed classroom and other areas of the South End Academy were observed by Elizabeth Pinsky, M.D., who has been Student’s private psychotherapist since approximately August 2010, seeing her weekly initially, and then biweekly since that time. Dr. Pinsky is a pediatrician and also is a Clinical Fellow in Child and Adolescent Psychiatry at MGH.
42. After observing the proposed classroom, Dr. Pinsky concluded that the proposed placement would not be appropriate for Student. (Pinsky, P-F) In a letter to Parent dated June 15, 2011, Dr. Pinsky stated that “Based on my direct observations, it is my strong opinion that the proposed classroom and the McKinley School itself is not an appropriate placement for [Student]. “
43. Dr. Pinsky’s letter further stated: “While [Student’s] proposed classroom is geared towards more “fragile” children, I observed that her propsed peers are largely struggling with disruptive, oppositional and uncontrolled behavior. [Student] is truly an exceptionally fragile child who suffers from severe depression. She has no history of oppositional or disruptive behavior. She has, in fact, at times…been mute when outside her home. I predict that [Student] will be unable to tolerate the verbal, and, at times, physical jostling and disruptiveness in the proposed classroom…” (P-F)
44. Dr. Pinsky’s letter and testimony also mentioned that she had observed, outside of the classroom, “verbally aggressive outbursts and physically aggressive posturing that [Student] would experience as threatening.” (Pinsky, P-F)
45. Additionally, Dr. Pinsky found that there was insufficient quiet space for Student to de-escalate and manage her anxiety, since the “planning center” is shared by other classrooms and is largely used to manage students with disruptive behavior. (Pinsky, P-F) Finally, after interviewing the school nurse, Dr. Pinsky concluded that the nursing resources were not adequate for the ongoing management of Student’s health issues as they impacted her educational functioning. (Pinsky, P-F)
Program Proposed by the Parent
46. The Parent has not proposed a particular school placement; rather, Parent seeks a setting that could implement the services in the Student’s IEP in a safe, nurturing setting in which she would not be exposed to students with disruptive and/or acting out behavior.
DISCUSSION
The only real issue in contention in this matter is whether the proposed placement at the McKinley South End Academy is appropriate for implementation of the accepted goals and objectives of the proposed IEP. There is no dispute that Student is an exceptionally fragile, vulnerable child who has been out of school since early 2010. She has a complex profile including medical problems, cognitive limitations, depression and anxiety, including school phobia. These issues have impeded her ability to attend school at all, despite her eagerness and willingness to work hard and learn. Student has absolutely no history of oppositional, disruptive, defiant, or acting-out behavior. Rather, the uncontroverted evidence on the record is that Student finds such behavior in other children to be threatening. When Student feels threatened in this manner, and/or perceives that she cannot trust the adults in the school setting to be attuned to her needs, she “acts in,” becoming highly anxious, physically ill, and unable to function in a school setting.
The McKinley staff who testified at hearing were impressive in their knowledge professionalism, and obvious compassion. Moreover, the program clearly is designed and staffed to meet the multiple needs of a very challenging student population in as individualized a manner as feasible. However, in Student’s current state of vulnerability, it seems unlikely that she would be able to benefit from what the program has to offer. The unrefuted evidence on the record is that the behavior of peers, whether inside or outside of the classroom, would be unavoidable and would likely prevent Student from even attending school on a regular basis, let alone making effective progress.
CONCLUSION AND ORDER
The Conclusion and Order issued on November 14, 2011 is hereby incorporated by reference and attached as Exhibit A.
By the Hearing Officer:
_______________________ ______________________
Date: December 13, 2011 Sara Berman
EXHIBIT A
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools BSEA #12-1298
CONCLUSION AND ORDER
This Conclusion and Order is issued pursuant to 20 USC Sec. 1400 et seq., (Individuals with Disabilities Education Act or IDEA), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL ch. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes. The parties requested issuance of this Conclusion and Order by ten days after the close of the hearing, before the issuance of a full decision on the merits, so that they could make immediate educational arrangements for the Student. A complete decision with findings of fact and conclusions of law will be issued in the near future. The appeal period will not begin to run until issuance of the complete decision.
A hearing was held on October 26, 28, and November 2, 2011. The parties presented oral closing arguments on November 2, 2011 and the record closed on that day.
Based on the documents and testimony presented at the hearing, I find and conclude that the Parent has met her burden of proving that the McKinley Middle School placement5 is not appropriate for Student for the period covered by the IEP for February 2011 – February 2012, or for the remainder of the 2011 – 2012 school year (including summer 2012)6 and that Student requires an out-of-district therapeutic day school placement in order to provide her with a free, appropriate, public education.
The record establishes that the Student requires an educational placement that can provide a supportive, nurturing, calm environment, on-site therapeutic and nursing/health supports and services, specialized academic instruction in all subject areas, with appropriate remediation and accommodations, related services per the IEP referred to above, the ability to flexibly and gradually transition Student to full-time attendance in light of her school phobia and related diagnoses, to accommodate her fluctuating health needs, and regular communication with Parent and outside providers. Additionally Student requires a peer group—within her classroom, within the school population as a whole, and on the bus or other transportation vehicle—that displays a little or no disruptive, aggressive, or acting-out behavior.
The Parent has not designated a particular day school as appropriate for the Student. Rather, Parent has asked Boston to send referral packets to several private therapeutic day placements.
Boston is hereby ORDERED to immediately assemble and send out referral packets to private day school placements that meet the criteria listed above, especially including the peer group and environmental requirements . Boston shall amend Student’s IEP to designate a private therapeutic day placement and to provide such placement through the end of the 2011 – 2012 academic year as well as the summer of 2012. Once a placement has been located, the Boston Team, in conjunction with the private school, may adjust Students IEP goals and objectives to reflect her academic and other needs.
By the Hearing Officer:
_______________________ ______________________
Date: November 14, 2011 Sara Berman
1
According to a pediatrician’s report dated February 10, 2009, Parent stated that Student already had missed 50 days of school as a result of “social and physical problems.” P-J
2
According to Dr. Wilson’s report, the DAS-II scores are “reasonably comparable to” IQ scores, in that they measure similar skill areas, and are normed on the same scale. (P-D)
3
Student has been receiving tutoring at a local public library from that point until the time of the hearing.
4
Initially, the BPS proposed the McKinley Elementary program because Student would be repeating fifth grade. However, the ultimate proposal was for a sixth grade placement in the Middle School based on Student’s age and size.
5
At hearing, Parent disputed only the specific McKinley School placement. She did not contest the IEP goals and objectives at the hearing, and did not object to a therapeutic day placement.
The IEP calls for extended school year services.