Brian v Worcester Public Schools – BSEA #03-0307



<br /> Brian v Worcester Public Schools – BSEA #03-0307<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 03-0307

IN RE: Brian1 v Worcester Public Schools

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing was held on April 3-4, 2003 at the Catuogno Court Reporting Offices (Catuogno) in Worcester, MA.

Those present for all or part of the hearing were:

Mother

Father

Richard E. Keelan Case Coordinator; Worcester Communities of Care

Elizabeth A. Vezina Residential Supervisor, Wediko Children’s Services, NH

James P. Wade Educational Supervisor, Wediko Children’s Services, NH

Harry W. Parad Executive Director, Wediko Children’s Service, NH

Paul M. Rosen . Director, Central Massachusetts SPED Collaborative, Worcester

Kerry Ann Fagan Clinical Supervisor, Burncoat Senior High School, Worcester

Marie E. Wake Special Education Teacher, Burncoat High School

Tracy L.J. Wheeler Coordinator of Team evaluations, Worcester Public Schools

Paul Anderson Webb DMH Social Worker

Darlene M. Coppola Registered/Certified Professional Reporter; Catougno

Charles E. Vander Linden Attorney for Parents

Mary Joann Reedy Attorney, Worcester Public Schools

Joan D2. Beron Hearing Officer, BSEA

The official record of the hearing consists of Parents’ Exhibits marked P1-36 and School Exhibits marked S1-25 and approximately twelve hours of recorded written testimony. The record closed on July 14, 2003.3

ISSUES

I. Does Worcester’s IEP designating a day placement at the Burncoat High School provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) for Student?

II. If not, does Student require a residential program to meet his educational needs?

III. If so, does the Wediko Children’s Services residential program in Hillsboro, NH (Wediko) provide a FAPE to Student in the LRE, thus entitling Parents to reimbursement for their placement of Student in this program?

PARENTS’ POSITION

Student is an 11 th grader with serious emotional and learning disabilities that impact his ability to learn. He has not been successful at the Burncoat High School and requires a residential program. The Wediko residential program is appropriate to meet his needs. As such, Parents should be reimbursed for their placement of Student in this program.

SCHOOL DISTRICT’S POSITION

The School District has provided Student with an appropriate IEP that addresses Student’s educational needs. If Student requires a residential setting, it is not for educational purposes, and as such, it is DMH’s4 responsibility to fund it.

FINDINGS OF FACT

1. Student (d.o.b. September 2, 1985) is currently a seventeen year old, 11 th grade Worcester resident who resides with his parents and fourteen year old sister (Mother, Father). Student has attended the Wediko Residential School program in Hillsboro NH since September 22, 2002 through private placement by Parents; Id.

2. Student began receiving psychopharmacological intervention and special education services in Worcester in preschool. At that time Student was in a program for children with emotional and behavioral difficulties due to his impulsivity and aggression, difficulty focusing his attention and poor interactions with family and peers. Student was diagnosed with Oppositional Defiant Disorder (ODD) at age four and ADHD the following year (P25, Mother).

3. Student attended the Worcester Public Schools/UMASS Kindergarten ADHD project and began 1 st grade in a regular first grade classroom (SY 1992-1993) (Mother, P21, P23). In November of first grade his teacher requested a behavioral disorders class placement due to Student’s swearing in the classroom, volitional finger twiddling and volitional use of nonsense phrases (e.g. “little greenies”) to get attention in the classroom (Mother, Father, P22). At home Student was bothered by the tags on his clothing and loud noises and displayed other sensory integration issues (Mother, S16). The TEAM reconvened in December 1992 and developed an IEP for Student to attend a classroom for students with behavioral disorders at the Flagg Street School in Worcester with support in inclusion math and reading. Student remained at the Flagg Street School until sixth grade with accepted IEPs (Mother). While there, Student continued to have verbal and sometimes physically aggressive confrontations with his parents and sister, flying into temper outbursts at least once per week, often breaking things and hitting people (Mother, Father, P25).

4. During fourth grade, Student began displaying more dangerous behavior in school, bringing lighter fluid to school and striking a teacher on one occasion (P25). During that time Student also began lying and stealing at school and at home (P25, Mother). Student’s social skills were poor. Student was also often anxious about his performance at school and being accepted by others (P25). In addition, Student’s fine-motor problems and organizational weaknesses made writing and time management difficult for him. This often increased his anxiety resulting in ticking noises and other extraneous gestures and noises (S9, Mother). Student was however performing at grade level in all of his academic subjects and showed some progress in his peer relationships (P25). IEPs developed in May of 6 th grade also indicate that Student had made gains in accepting corrections from teachers, and with the use of immediate feedback, teacher cueing and a daily chart, had increased his appropriate behaviors (S9).

5. Student received a psychological reevaluation from the UMASS Medical Center in February and March of 5 th grade (1997). Cognitive testing (WISC-III) showed that Student was at an above-average level; however short-term memory skills were below average (P25). Parent and teacher rating behavioral subtest scores5 fell within normal to high normal limits for hyperactivity and overactivity. Student however had elevated subscales for aggression, conduct problems, poor social skills and adapting to changes in routine (P25). Teacher subtests also showed some symptoms of anxiety, atypical or unusual behaviors and poor self-esteem (P25). The evaluators concluded that the atypical features that Student displayed in his behavioral and emotional functioning may indicate the possibility of more significant psychiatric complications of mental illness that may appear during adolescence (P25, Mother).6

6. In seventh grade, Student began attending the Forest Grove Junior High School in Worcester with an accepted 502.1 IEP (Mother, S9). The IEP provided ten hours of consultation and intervention from a learning disabilities teacher for organizational skills, behavior, language arts and math. The IEP also provided for modifications for assistance with written assignments, reduction of lengthy writing assignments, continuation of a daily chart and feedback and reduction of excessive corrections (Mother, S9).

7. Student was overwhelmed and anxious because the Junior High School was a large setting with many more students and teachers (Mother). Student’s anxiety increased and his ability to think clearly declined (Mother).7 While Student was in junior high he set fires at home and during camp (Father), see also (P28). Student was sent to a fire prevention program (Father, P28).8 When Student was thirteen years old, he tried to jump out of a third story window because he decided that life “wasn’t worth it” (S28).

8. The TEAM reconvened on April 7, 1999 and developed an IEP for a diagnostic evaluation at the New Bond program in Worcester (Mother, S7). The New Bond Program is a small setting for children with behavioral, emotional and social skills deficits; Id. Student made connections with staff and some of his peers at New Bond but was not happy there and continued to be anxious (Mother, S7). He continued to make inappropriate comments to his peers to try to make friends and impress them and continued to have attention difficulties that required redirection (S6). Student remained in the New Bond program until the end of the year. No progress reports were generated during Student’s tenure at New Bond, no formal meetings occurred and no report card was issued (Mother). As a result Parents and Student did not know where Student would be going to school in September and could not obtain answers because the teachers were on vacation.

9. An IEP was developed for Student’s 8 th grade year on August 20, 1999 and August 25, 19999 (S6). Mother wanted Student to return to an inclusion program at the Forest Grove Middle School because it would give Student association with good role models and the academics would be on par with what Parents hoped Student was able to do (Mother). The rest of the TEAM agreed and proposed a 502.2 IEP with consultation and eleven hours and twenty minutes of pull-out support to assist Student in organizational and study skills (S6). The IEP was accepted (S6). Student continued at Forest Grove until January 2000 (Mother). While at Forest Grove, Student had lost all confidence in his ability to do anything, and was very frustrated and angry. In addition, Student was engaging in verbal abuse in home and at school, was making irrational comments about aliens and weapons and many of his grades were failing or close to failing (Mother).

10. On January 3, 2000 Parents placed Student in the Winchendon School, a private school for children with ADHD. Student told Mother he was scared to be there and was not able to come home on weekends because he could not earn his behavioral points (Mother). When Student was not able to earn his points he became angry and so his ability to earn points decreased with each week. He was dismissed from the school on February 7, 2000 for throwing furniture, breaking windows and displaying other violence and aggression (Mother, see also S18).

11. Student returned to the Forest Grove School in February 2000 and remained there for the rest of eighth grade (Mother). Parents were called to school several times because Student was verbally abusive and was displaying increasing anxiety and stress trying to keep up with his academics and trying to fit in with the other students (Mother). During that time Student was involved in a physical assault with students on the bus due in large part to Student’s not being able to follow and appropriately participate in the conversations of the other students (Mother). He also received an in-school suspension for fighting (P27). Student saw his therapist and psychiatrist several times and went through many medication changes but his behavior did not improve at school or at home (Mother, see P27).

12. Worcester conducted Student’s three-year reevaluation during April 2000 (S18-20). Its’ academic testing10 showed that Student’s grades have not reflected his academic potential or his demonstrated achievement levels on standardized testing (S18, S20). School staff and the teachers noted that Student’s behavioral issues (verbal impulsiveness, obsessive behavior), poor organizational skills, social skills deficits and difficulty with transitions have interfered with Student’s optimal functioning (S18, S19, S20, S5).

13. On April 27, 2000 the TEAM reconvened to develop an IEP for the IEP period from August 29, 2000-June 1, 2001 (S5). The TEAM noted that Student’s behavior had been more consistent than in the past but that he continued to have difficulty reading social cues and seemed to have perceptual difficulty which caused him at times to act inappropriately. Parents also noted Student’s continued difficulty with peer interaction and his lack of self restraint. This was evidenced by Student’s fighting with students and striking a boy on his baseball team who was teasing him, breaking a lamp when he was not allowed to watch television, disrespectful behavior to school administrators and hostility toward Hispanics (P27, Mother).

14. On May 21, 2000 an IEP was sent to Parents proposing a 502.2 program at the Doherty High School. Under that IEP Student would receive organizational modifications, 1½ hours of pull-out services to address organization issues and 15 minutes of consultation services for social awareness (S5). Parents did not sign the IEP; see (S5).

15. Parents privately placed Student in St. John’s High School in Shrewsbury in September 2000 (Mother). Despite accommodations, St. John’s asked Student to leave after four or five weeks because he was obstinate in the classroom, was not getting his work done and was talking back to the teachers (Mother).

16. Student then entered the Doherty High School in Worcester in October 2000 and attended a behavioral disorders classroom because it was the only option offered by Worcester (Mother). Student told Mother that he was afraid to go to school and that he understood how the kids at Columbine felt (Mother, P27). No IEP was written for this placement (Mother, see S5). Parents met with Student’s therapist, Marc Spisto. He strongly suggested to Parents that they look for a therapeutic school that would provide a welcoming peer group for Student and provided them with a listing of all the therapeutic and special education placements available in the state (P27).

17. In approximately November 2000 the family began receiving services from Worcester Communities of Care (WCC). WCC is a federally funded project of the UMASS Medical Center that provides wrap-around services to families designed to keep children in the community (S29, Keelan). Richard Keelan provided case management for the family (Keelan, Mother).

18. Worcester conducted a functional behavioral assessment in October and November 2000 (Mother, S16, S17). The teacher noted that Student displayed increased threatening behavior toward others, increased obsession with sexual material, talked to himself and picked his fingers to the point of blood (S16, S17, Mother). The teacher concluded that Student’s behavior stemmed from anxiety, poor social skills and a need to fit in and please peers (S17). She recommended daily home/school contact and that a behavioral contract be implemented whereby Student would be removed from the setting if he became disruptive or displayed sexual or abusive behavior (S17).

19. On November 21, 2000 the TEAM convened to develop an IEP for Student (S4). The TEAM determined that Student required a program that had a therapeutic component with a point and level behavioral system incorporated into his academic program and goals and objectives to deal with Student’s anxiety associated with making transitions (S4, S22). The TEAM also agreed that Student required extra time to complete written assignments, the use of the computer for longer assignments, positive reinforcement and praise, self-monitoring behavioral strategies (i.e., cueing) and immediate behavioral feedback and an opportunity to complete assignments in the ESP classroom when anxious or frustrated (S4). Worcester recommended that the IEP be implemented at the Burncoat Educational Support Program (ESP) program.

20. Student began the Burncoat ESP program on December 12, 2000 pursuant to an accepted IEP (Mother). Student’s special education classroom contained approximately eight other students (Wake). The ESP teacher, Marie Wake, is a licensed and certified special education teacher who had taught in the program since August 1992. Ms. Wake also had six years of experience working at the G. Stanley Hall/Bridge School, four as a teacher and two years as an Assistant Director (Wake, S24). The program also has the assistance of an instructional assistant with a Bachelors degree in special education, with at that time, fourteen (14)11 years experience in the field (S24). Ms. Kerry Fagan12 , L.I.C.S.W., also provided (and currently provides) assessment, case management, individual and group therapy and crisis intervention to Student’s class along with consultation to Ms. Wake and his inclusion teachers on a full time basis (four hours per week) (Wake, S24).13 Dr. Paul Rosen has been a consultant to the program since approximately April 1998 and was the former Clinical Director of the Bridge of Central Massachusetts since 1976.14

21. Student completed the 9 th grade (SY 00-01) at Burncoat (Mother) taking four classes in the ESP program, individual and group counseling, and JROTC, English and a computer course within the regular education 9 th grade class (S26, Wake). Student’s transition to Burncoat went well for the first month (S26). Student was able to use counseling in a positive manner (S22). He was able to, when he left the class early, independently walk to his classes (Wake, S22). Student also enjoyed going to ROTC and benefited from the structure and consistency in the program (Mother).

22. On January 3, 2001 Student (with a friend) made a prank phone call to his English teacher’s home. In approximately late January 2001, Student began to have difficulty discussing appropriate topics in class and would continually disrupt the class by blurting out nonsense words such as “Cheese”, “cheese-wizz” and “jalopa” (S26, see also S22). On other occasions Student would say these words quietly to himself while independently doing his work (S26). Student would also continually make verbal and written sexualized comments, (S26), see also (Mother, Wake).

23. In mid February (February 13, 2001) Parents found a disk in Student’s possession that was stolen off of his teacher’s desk. When questioned Student told them that he wanted to find out information about another student in the classroom (S26). Two days later Student told his teacher that he was using diet pills (S26). Parents sent Student for an out-patient evaluation on February 28, 2001 (S28). Student told the evaluator he had a bad temper and acknowledged yelling, breaking things, swearing, hitting walls, making threats of aggression, calling people names and demeaning others (S28). He also reported that in the previous two years he had heard his dead grandmother or his dead grandfather calling him, that when he was eight years old he thought that his parents had fangs and that he was abducted by aliens. He also told the evaluator that he saw a dragon at that time (P28). The evaluator reconfirmed the diagnoses of ADHD and ODD; see (P28).

24. On March 15, 2001 the family met for a planning meeting at Worcester Communities of Care (S29). The Communities of Care team proposed respite for Student and Parents, a structured after-school program and summer over-night camp for Student and a mentor for both Student and Sister (S29). Ms. Fagan was also contacted about the plan and gave suggestions (S29, see Fagan, Keelan). The Communities of Care team met again on April 10, 2001 and May 3, 2001. Kerry Fagan was also present at the meeting (S29, see Fagan, Keelan). The Communities of Care team continued to work on the former goals. Worcester Communities of Care also used its flexible funding to hire a housekeeper so that the family would have more time to work on family issues (Keelan, S29).

25. During the third quarter of the 2000-2001 school year Student’s grades dropped from B’s to C’s due to increased difficulty concentrating and an inability to follow directions (S26), see also (Mother, Wake). He was verbally and physically abusive also had increased difficulty following rules and engaging in appropriate interactions with peers (S26, S22, P29, Mother). This difficulty extended to ROTC, resulting in Student throwing his uniform on the floor and stomping on it on one occasion (Mother).

26. Student’s grades improved during the fourth quarter of the 9 th grade year (S29, S22). Student’s English homework however, was still not getting done (S26). Student’s behavioral disruptions and inappropriate comments in class regarding racism, the poor, and sexual topics required daily staff intervention. He was not able to make progress behaviorally despite contracts, feedback, limit setting (including in-house suspensions), counseling and frequent communication between school and home (S26, S22, Mother, Wake, see also S28). Student ended the 00-01 SY with a 75 in a Level 1 inclusion English and a 77 in ROTC. Student’s year-end grades in his special education classes were a 79 in Integrated Math, an 80 in Integrated Science, and an 83 in World History (S27).

27. At home, Student continued to be verbally and physically abusive and aggressive (Mother, P28). Student rarely, if ever, socialized with friends outside of school and showed bad judgment with peer relationships, making crank calls, or on one occasion, staying out all night with a classmate (Mother, see S26). He repeatedly fought with his sister, often going into her room and stealing and breaking her possessions and interfering with her interactions with her friends (Mother). Student also stole his grandmother’s credit card and used it to buy items off the internet from a computer in his business course. He was removed from the course (Mother, S26, Wake). Student was also stealing at home (Mother). Student also began to engage in compulsive, uncontrollable eating at home and at school (S16). Parents and Burncoat staff were in constant communication regarding Student’s behavior and Parents were aware of Burncoat’s behavior plan; however Burncoat’s behavior sheets were not sent home to Parents nor was the plan taught to Parents to be used at home (Mother, Fagan).

28. During the spring of 2001, Parents filed a CHINS. DSS told Parents that they were doing a great job because Student attended therapy and was in a special education program. DSS then told Parents that they were doing everything that they would do and that there would be nothing additional that they could provide; see Mother. The Court did not process the petition (Mother).

29. Gail Grodzinsky, Ph.D. conducted a neurological assessment of Student in mid May 2001 (S16). Student was found to be at risk for hyperactivity, aggression and conduct problems and poor reality testing, warranting further investigation (S16). Student’s social and leadership skills were also assessed to be at risk. Id. In addition, Student’s difficulty with subtests requiring efficient visual spatial planning and organization and deficits in short term memory suggested neurological deficits in these areas (S16). Although Student’s receptive and expressive language skills were above average, his response style was hypervigilant, and inflexible and he showed difficulty taking others’ perspectives (S16). He also displayed deficits in filtering irrelevant details from the bigger picture on many subtests. He also displayed slow processing speed and had difficulty doing tasks that required shifting cognitive strategies or multistep directions and his writing reflected poor handwriting and did not correspond to his vocabulary skill (S16).

Dr. Grodzinsky concluded that Student’s poor organizational and spatial skills and poor pragmatics were consistent with a diagnosis of nonverbal learning disability (NLD) and that his obsessive-compulsive behaviors, rigidity and overreactivity may also suggest Obsessive Compulsive Disorder (OCD) or Asperger’s Syndrome.15 She also found that “[Student’s] profile suggest[ed] the need for a more comprehensive therapeutic school, most likely residential should his present behavior continue to spiral down. It appears from recent reports that his behavior has taken this unfortunate turn, perhaps more so than one might suspect even given the end of the school year. It is critical that the school not wait until a more serious regression/crisis occurs. A residential program is recommended” (S16). She also determined that “a psychiatric16 evaluation would be critical to determine the components necessary within a therapeutic placement’… and that “until [Student] is behaviorally and emotionally stable, he remains a fragile learner and even the best educational recommendations/teacher will have little impact”. (S16).

30. Student continued 10 th grade (SY 01-02) in the Burncoat ESP program (Mother). Parents wanted Student to continue at Burncoat because, although he was struggling, Student was receiving academics and inclusion and had supportive and caring teachers who took an interest in him (Mother). Although progress reports of September-December 2001 show that Student’s behavior and peer relationships improved, Student continued to require staff intervention to minimize silliness and class disruption (S22, progress note 4, see also S22 PE assessment 9/28/01). ROTC progress reports drafted on September 29, 2001 indicate that Student could display appropriate knowledge and skills in class but that he deflected responsibility for his actions, did not converse well with others and blamed others for inappropriate behavior (P22, Mother). On September 19, 2001, Student received three days of in-house suspension for making about ten written sexualized comments (S26). On that day Student also received three days of bus suspension for inappropriate language on the bus (S28, Father). Two after-school suspensions were given on September 27, 2001 for creating a major disturbance in the classroom and refusing to leave (S26, Wake). Student frequently continued to display verbal abuse in school and at home, and disorganized thought processes and struggled with his academics, screaming every night about homework. He continued to steal and continue to make threats at home and at school and began making inappropriate sexualized comments at his after-school program and physically assaulted his Mother (Mother, see S15, P29, S28).

31. In early October 2001 Mother was called to school because Student, after being sent to the Assistant Principal’s office for discipline, became enraged and threw his file cabinet to the floor (Mother, Wake). On or about October 3, 2001 the TEAM reconvened and proposed that a functional behavioral plan be developed. The TEAM also noted that a neuropsychological evaluation had diagnosed Student with a learning disability and recommended that Student receive LD services for two forty-five minute sessions per week. The TEAM also noted that Student’s medication would be updated and that a 688 referral17 may be made in June of Student’s junior year (S3). The TEAM agreed to reconvene on November 13, 2001 to review the functional behavioral assessment (FBA) (S3). Parents accepted the amended IEP (S3).

32. Burncoat’s social worker Kerry Fagan conducted an FBA on October 19, 2001 and November 8, 2001 (S14). Although Ms. Fagan had frequent contact with Parents, the data sources used to assess Student’s behavior do not include information from Parents or contact with anyone other than Ms. Wake (the special education teacher) and Mr. O’Brien (the Assistant Principal) (S14, Fagan, Mother, Father). As a result, the FBA did not include information that Student had stolen $50.00 from his mother, and had made threats to, and had, physically hurt his parents and did not seem to comprehend the likely consequences or the impact of his behavior upon others (Mother, Father, P27). Nor did the FBA include information from Worcester Communities of Care or the after-school program that Student had begun even though Ms. Fagan had attended meetings in April and May 2001; see (S29, Keelan). The goals for Student were, like the behavioral intervention plan (BIP), developed in November 2000, to “improve ability to remain on task”, reduce frequency of inappropriate language/noises and reduce frequency of disruptive or obsessive behaviors” (S14), compare (S17, S14). The intervention strategies for remaining on task were identified as “positive and frequent reinforcement for on-task or appropriate behaviors” and structuring or breaking down tasks into essential components” (S14). The interventions for reducing the frequency of inappropriate language and disruptive or obsessive comments continued to be:

· staff redirection and feedback;

· use of time-out;

· removal from class or activity when needed;

· consultation with the Assistant Principal as needed;

· ongoing and frequent consultation with Parents regarding positive and negative behaviors and

· consultation with collateral service providers (therapist, psychiatrist) to help identify and target behaviors (S14, compare S14, S17).

The FBA does not indicate the person responsible for implementing these interventions; nor does it include notes or dates by which the FBA is to be reviewed (Fagan, see S14).

33. The TEAM reconvened on November 13, 2001 and developed an IEP for the November 2001-November 2002 time period (S2). The TEAM noted that Student had difficulty organizing math problems and also sometimes unintentionally and intentionally forgets his pens/pencils, homework assignments, calculator and agenda book (S2). It recommended two forty-five minute pull-out sessions of assistance from a learning disabilities (LD) specialist, accommodations of color-coded notebooks to match subject areas, a morning checklist of necessary materials for organization and the use of a calculator and written directions and examples of math problems (S2). Dr. Grodzinsky’s recommendations for verbal/visual pairing of information, breaking down of steps into structured sequential components, self cueing and rephrasing strategies and the use of outlines, study guides, direct feedback and examples of expected work were not included in the IEP; compare (S2, S16). Dr. Grodzinsky’s recommendation for a written contract to assist him with written work was also not included in the IEP. The IEP also did not include her recommendation for use of keyboarding to bypass handwriting nor were any of the specific strategies for written language, organization skills and test modifications included. Id.

The TEAM also acknowledged that Student’s social/emotional needs often impacted his ability to succeed in educational settings but that lately Student had been responding to the behavioral management system and the counseling services provided in the program (S2). The TEAM recommended continuation in the Burncoat ESP classroom and individual and group counseling with preferential seating away from distractions, established routines and continuation of the BIP and the daily contact between school and Parents (S2, Mother, Wake). Extended school year services were not discussed (Fagan). The IEP was presented to Parents at the TEAM meeting and accepted by Mother on that day; see (S2).

34. On November 20, 2001 Student underwent a psychiatric evaluation at UMASS Memorial Medical Center (P29, S15). Dr. Ozbayrak disagreed with the Obsessive Compulsive Disorder diagnosis but did agree that Student met the criteria for Asperger’s Disorder, ADHD/ NOS and ODD (S15, P29). Student continued his medication of Concerta (54 mg p.o.q. a.m.) Effexor XR (150 mg a.m., 75 mg afternoon) and Risperidone (.25 mg p.o.b.i.d.).18

35. In approximately December 2001, the after-school program called a meeting because Student had made several inappropriate sexual comments to younger female students and tried to physically intimidate one of these students. Student had also drawn a swastika on his hand (Mother, Father, P27). He also had a horrible Christmas vacation breaking several spindles on the staircase and shouting obscenities after discovering that he would be sharing an “x-box” game system with his sister (Mother, Father, P27).

36. In mid-January 2002, Ms. Wake sent Parents Student’s 1 st quarter progress report (November 15, 2001-January 18, 2002). Ms. Wake noted that Student was making progress toward most of his goals but that incomplete homework assignments continued to hinder his grades. She noted that Student was able to write down his assignments but continued to misplace his agenda book. (S22). In math, Student was able to make progress but needed constant review of learned material (S22). During that quarter Student received two in-school suspensions for verbal assault of a student and for disruption (S28). Ms. Wake noted that Student was not making sufficient progress in earning his behavioral points and that he required much staff support and intervention to achieve the progress he was making (S22, Wake). Id.

37. Progress reports show that during the second quarter (January 21, 2002-April 5, 2002) Student was able to bring necessary materials with him to class on a regular basis and, with constant review, was able to apply learned math concepts to new concepts (S22). He also appropriately participated in daily school-based individual and group counseling and earned 6/7 appropriate interaction points (S22). In the after-school program however Student continually made sexualized gestures towards his groin area and told his after-school teacher and private therapist that he was not able to control his graphic sexualized thoughts (P27). He also told his therapist that he was embarrassed about his body because of the significant weight gain he had from his medication (P27). In class, Ms. Wake noted that Student had several outbursts requiring intensive staff intervention (S22, Wake). He was at mid-quarter (March) failing three classes (P27, Mother).

38. Just prior to April vacation Student was hospitalized at UMASS Medical Center’s Psychiatric Unit. This hospitalization resulted from an incident where Student escalated after being told by Father that he needed to get off the computer. Student responded by forcefully throwing Parents’ china across the room. When Mother told him that he could not behave like that Student tried to kick her down the stairs (Mother). He also attempted to assault Father with a knife (P3).

39. Student remained hospitalized for four or five days in an adult unit (Mother, Father). Student told his Father and his Communities of Care case manager that it was the first time he had ever felt that he was in a place where he understood people better, and they understood him (Keelan, see Father). Student was then transferred to a partial hospitalization program. While there, he received his grades. After finding out that he had failed English, Student became so angry that he began lashing out again. Parents took Student back to UMASS Psychiatric Unit. UMASS however did not have any room for Student. At approximately 2:00 a.m. Student was transferred by Parents to the Lowell Treatment Center and hospitialized there (Mother). While there, Student told Father and Mr. Keelan that he wished that they (Parents) had hospitalized him earlier because he needed something that’s 24 hours a day. When asked what that meant Student told them that he needed therapy twenty-four hours a day (Keelan, Father). Both Father and Mr. Keelan believed that this was a powerful statement for Student because he did not (and still does not) readily acknowledge or accept his own issues (Keelan, Father, see also Wade).

40. On April 29, 2002, Daniel F. Connor, M.D., Director of Pediatric Psychopharmacology, wrote Worcester’s special education director informing her that “[Student] now present[ed] with suspicious and paranoid ideas of reference and an increasing inability to think logically’ (P3, S13). He also informed her that “as a result of his paranoid thinking he has been assaultive towards parents at home and has assaulted father with a knife. This has resulted in two recent psychiatric hospitalizations and a day treatment program”. Id. Dr. Connor noted that despite mental health treatment including family therapy, individual therapy, antipsychotic and stimulant medications and an antidepressant for anxiety disorders, Student could no longer be safely maintained in school given his psychotic thinking and history of impulsive assaultiveness. Id. He recommended that Worcester fund a structured residential treatment placement where Student could complete his secondary school education. Id.

41. Student returned to Burncoat approximately five days after his second hospitalization (Mother). Parents asked for the TEAM to reconvene because they were afraid that he would have another violent episode in school and were worried that somebody was going to get hurt (Mother). Worcester did not reconvene the TEAM because Student was not due to have an IEP meeting. (Mother, see S2).

42. Ms. Fagan submitted a clinical summary on or about May 7, 2002 (S12). She noted that during that current academic year “Student had experienced changes in his medication and his after-school placement which has resulted in deterioration of his mental status, …a tendency toward more disorganization, as well as grandiose thoughts which can affect his ability to complete schoolwork. Frequently [Student] will feel that certain rules or expectations do not apply to him (i.e., homework.). When challenged on these thoughts, he can become rigid, even belligerent in his response and appears quite incapable of hearing an alternative point of view. Additionally [Student] has experienced somewhat more frequent outbursts and incidents of verbal aggression when angry. At times [Student] has expressed some concern over how he might handle his angry impulses and has worried that he would not be able to control his behavior…Socially [Student] continues to have ongoing difficulties with impulsive and inappropriate comments and disrupting classes. [Student’s] comments and interactions with others, both in the program and in his mainstream classes, have become more bizarre and inappropriate. For example, he has discussed his mental health diagnosis with students in one of his mainstream classes. On another occasion, he has discussed the benefits of piercing one’s eyeball. …Currently, [Student’s] inappropriate and tangential comments have served to distance him more dramatically from his peers, both in the program and in mainstream classes. … [Student] is currently experiencing some difficulties in his mainstream classes (ROTC and English)19 primarily due to failure to complete assigned work. …[Ms. Fagan concluded that]: While [Student] has clearly experienced a decrease in overall functioning during this current academic year, he continues to be responsive to the structure and support of the Education Support Program” (S12).

43. Worcester conducted a personality assessment of Student on May 21, 2002 and May 29, 2002 (S11). Student told the school psychologist that he liked being at the Burncoat ESP program and ROTC and hoped to remain there (S11). He denied sleep or eating issues and denied any weight gain or weight loss or any aggression since his hospitalization about a month before. Id. The evaluator noted that Student was friendly, cooperative and frequently initiated conversation. She also noted that conversation was adult-like in nature and that Student presented as very self-assured (S11). His responses to test questions appeared to be honest and revealed that he had invested some time and thought into his responses (S11).

Conversely, Student’s rating scale scores on the Youth Self Report (YSR) were clinically significant (above 90%) for anxiety/depression, attention problems and aggressive behavior (S11). He also achieved a borderline clinically significant score for delinquent behavior. Student’s story depictions on the Thematic Apperception Test (TAT) consistently revealed an attempt to intellectualize his responses and avoidance of the emotional issues that could have been present. His drawings on the Draw a Person assessment contained indicators of immaturity and a desire to withdraw or avoid social contact (S11). Parents’ answers on the Child Behavior Checklist (CBCL) revealed clinically significant scores (above 90%) for anxiety/depression, social problems, thought problems, attention problems, delinquent behavior and aggressive behavior. Ms. Wake’s observations yielded clinically significant scores for social problems, thought problems and aggressive behavior with borderline clinically significant scores for somatic complaints, anxiety/depression and delinquent behavior. Id. The school psychologist concluded that: “Given that he [Student] is in therapy, taking medication, and has had recent inpatient admissions, it appears that these problems are not responding to treatment at this time. Additional testing in this evaluation revealed a tendency to avoid feelings, emotional immaturity, and a concern over illness or death, which typically represents feelings of insecurity”…Familial and treatment reports…indicate a recent increase in aggressive behavior. At this time [Student] appears to be at risk for continued emotional difficulties, primarily in his interpersonal relationships…” (S11).

44. On May 22, 2002 Student’s therapist (Marc Spisto) wrote to Worcester’s special education director in support of a residential school placement for [Student]. He noted that “Despite our best clinical efforts with individual therapy, medication, consultation with Worcester Communities of Care, a comprehensive SPED placement, and an afternoon therapeutic program, [Student] now displays psychotic thinking, excessive irritability, mood swings, paranoid thinking, aggressive behavior and extreme difficulty establishing positive peer relationships. Unfortunately, his capacity for self control has dramatically deteriorated. In the last semester he was psychiatrically hospitalized twice…Due to his disorganized thinking, aggressive behavior and limited self-control, it is my clinical opinion that [Student] can no longer be safely educated within a mainstream school setting. I would encourage the Special Education Team to consider a residential treatment placement that provided therapeutic structure, academic instruction, peer socialization and emotional support…” (P4).

45. On or about June 3, 2002, Ms. Fagan conducted an updated Functional Behavioral Assessment (FBA) of Student (S10). Ms. Fagan noted that Student used inappropriate language, disrupted the class, engaged in verbal harassment of, and disrespected others and engaged in vandalism and theft (Fagan, S10, see also Mother). She also noted that these behaviors occurred daily and often several times per day and that these behaviors were frequent and intense enough to cause significant impact on the classroom environment. She also noted that Student’s academic work could suffer dependent upon his level of disorganization and current mental and emotional status and that his problematic behaviors increased when [Student] felt worse about himself”; Id. She also observed that “[Student], at times, displayed distorted thought patterns marked by extreme narcissism and grandiosity and at these times [Student’s] ability to take responsibility for inappropriate behavior diminishes as does his ability to accept and respond to limits” (S10, see also Mother). Like the Behavioral Intervention Plan (BIP) developed in November 2000, and the BIP developed in November 2001, the goals for Student were to “improve ability to remain on task”, reduce frequency of inappropriate language/noises and reduce frequency of disruptive or obsessive behaviors” (S10), compare (S10, S17, S14). An additional goal was to increase respect for others’ property (S10). Like the former FBA, the intervention strategies remained the same and did not indicate the person responsible for implementing these interventions. Nor did it include notes or dates by which the FBA is to be reviewed and was not coordinated with Parents (Fagan, compare S10, S14).

46. On June 7, 2002 the TEAM reconvened to consider the FBA, educational assessment and clinical interview and develop an IEP for Student for 11 th grade (S1). The TEAM coordinator invited Paul Anderson-Webb from the Massachusetts Department of Mental Health (DMH) to the meeting to consider options that DMH may have available for Student (Wheeler, Anderson-Webb). At that time Mr. Anderson-Webb learned that an application for eligibility for DMH services was pending; Id. Mr. Anderson-Webb informed the TEAM that based on what he had heard, Student would be eligible for DMH services and would be appropriate for a group home setting (Anderson-Webb).20 Mr. Anderson-Webb described two group home settings where Student could potentially live and continue at Burncoat (Anderson-Webb). The TEAM however did not develop a transition plan for Student nor was there any discussion about making a 688 referral (Anderson-Webb, Wheeler).21

Parents told the rest of the TEAM members that they had seen Student deteriorate at home and were afraid that he would deteriorate at school and hurt someone (Mother, S1). They requested a residential program for Student (Mother, Father, S1). Worcester staff noted that “Student’s comments and behaviors escalate when he experienced increased stimuli from his environment as well as behavioral stressors [but that] lately Student had been responding to the behavioral management system in the ESP classroom as well as using counseling services”. Worcester also noted that [Student] “is easily overwhelmed and when overwhelmed will shut down” and that “[Student] is currently maintaining himself”(S1). Worcester proposed that Student continue in the Burncoat ESP program with daily language arts in an inclusion classroom and LD tutoring in math for two forty-five minute sessions per week (S1, Wake, Fagan). The IEP also proposed a four-day summer program see S1, but see (Fagan). Parents rejected the IEP because Student was still working on the same emotional and social goals since he entered Burncoat. He had also, in the last two months, been hospitalized twice, had attacked both his father and mother, had thrown things in the principal’s and assistant principal’s office, was expelled from his after-school program and was acting more verbally and physically aggressive (Mother).

47. In approximately June 2002 DMH found Student eligible for services and found Student to be appropriate for a group home setting (Mother, Anderson-Webb). Parent(s) saw programs at the Ives House in Worcester, the Cedar Street Program in Fitchburg and a program in Webster called the Webster House22 (Anderson-Webb, Father). Parents did not feel that the Cedar Street program was appropriate because the residents were street-wise which would cause problems for Student due to his inability to interpret social cues and otherwise interact with peers (Father, Anderson-Webb). The director of Ives House told Parents that the Ives House was not appropriate and not an option for Student because Student would have to fail at one of the less restrictive group home settings before he could be considered for a staff secure program23 (Father). Parents did like the Webster House program but were concerned because the program did not have an in-house therapist on staff (Father, see also Anderson-Webb).24 Parents were also told that there were no openings at the Webster House and there may not be an opening for at least six months (Anderson-Webb, Father).25

48. On July 6, 2002 Parents rejected the IEP for a continued program at Burncoat (S1, Mother). Student began attending the Wediko Children’s Services summer program (Wediko summer program in Hillsboro, NH through funding from the Worcester Communities of Care (Father, Keelan). The summer program is an intensive residential therapeutic program that runs forty-five (45) days each summer (Parad). The summer program services 120 students with serious emotional and social problems. Many of the students have attention deficits and/or suffer from depression. Others have oppositional behaviors. Others have been diagnosed with nonverbal learning disabilities or Aspberger’s syndrome (Parad). Many of the students also have academic deficits. Students are separated into groups of ten according to age and similar emotional issues (Parad). Each group of ten students has at least seven staff, including a lead staff person with previous Wediko experience and a graduate-trained clinical supervisor (Parad). Group therapy occurs daily (Parad). Group behavior checklists are used three times a day where children rate their own behavior and staff rate their behavior. Then those ratings are reviewed, discussed and labeled as either detour behaviors that need to be decreased and credit (pro-social) behaviors to be encouraged and increased (Parad, S13).

49. Student’s summer group had eight staff servicing the ten students (S13). Of the eight staff, one was a licensed social worker. The lead teacher was not licensed but taught in Boston and Chelsea under a regular education waiver. The rest all had Bachelors degrees or were receiving graduate training in the field (Parad). The students in Student’s group had similar issues to Student, many with attentional issues and/or dysthymia or depression (Parad).

50. Like Burncoat, each Wediko student is also given an individual contract beginning the third week of school, that focuses on individual problem behaviors and tailored supports and interventions (Parad, Wake, P13, S23). At Wediko, Student’s individual supports and interventions included:

· having staff available 1:1 to help anticipate and solve problems;

· adult supervised interactions and feedback from peers;

· having all key adults using the same language for target behaviors;

· here-and-now interviews with cues for listening and talking;

· opportunities to chain behaviors to thoughts and feelings;

· opportunities for trial and error learning until mastery; and

· individual contracts reviewed three times per day with self and staff that would chain Student’s behavior to his thoughts and feelings, identify key themes at home and at school and use a concrete reward system (P13, Parad).

51. While in the summer program, Student had numerous incidents in which his behavior would escalate to the point where he was verbally or physically very aggressive, would stomp off, would refuse to follow directions, and would threaten to throw things or hurt people (Parad). Although other students in the summer program had similar behaviors, Student’s behavior was at least one standard deviation above the mean for the group (Parad). Student also became highly perseverative and was unclear about his ability to organize what he heard and make sense of what he had just done or why his actions occurred and would require many trials in order to achieve change (Parad, P13). He also had a tendency to become rapidly disorganized in response to everyday demands and misperceive simple requests as just totally unjustified demands. Id. When this occurred, Student had difficulty modulating his behavior and had difficulty seeing any other perspective, thinking flexibly or seeing any other alternative (Parad, P13). Parents and Burncoat staff had also observed similar behavior prior to his entrance in the summer program (Mother, Father, Fagan, Wake, see e.g . S10). Wediko summer staff attributed the process of intensely working on Student’s issues to result in short-term acceleration of more difficult to manage behaviors similar to what occurred with other students in the program (Parad).

52. Wediko summer staff (like Burncoat and Parents) noted that Student had difficulty engaging appropriately in social conversations (Parad, see also (Mother, Father, Wake, S1). When questioned by the other students or adults, Student could, at times, be very good-natured. He also could at times become very upset and hurt and compromise the physical and psychological safety of other children in the group (Parad). Once Student calmed down however, he was able to express that he felt bad about what had happened (Parad, P13).

53. By the end of the summer program Student was able to initiate social contact, connect with his group, gain a capacity to share and compromise, accept corrective feedback and was more compliant with adult limits and directions. He also showed good improvement about his treatment issues and need for continued treatment (P13). He could participate more fully in school and recreational activities, his ability to laugh at himself increased. His sense of shame decreased as did the frequency and intensity of his outbursts (Parad, S13).

54. Wediko summer staff however, noted that Student’s capacity for independent thinking and his maintenance of reality testing when upset still remained issues of great need as were issues of social judgment ( see Parad, P13). Student also continued to have trouble making simple transitions from the cabin to the dining hall and from the dining hall to the athletic field even when given a high teacher/staff ratio. This occurred even when a transition was anticipated and expected behavior was made clear and could be reiterated by Student and planned for; see (Parad). When staff did not or could not provide very close monitoring and attention, even for a time as short as five minutes, Student would often have lapses in social judgment even when he could articulate the negative consequences for his behavior and be sorry that it occurred (Parad).

55. Parents applied for Student to attend Wediko’s full year program during or just prior to Student’s entrance in the summer program (Mother). Wediko’s executive director concluded that Student’s acceleration in his out of control behavior in the spring before he came to Wediko, despite a good therapeutic day program and an after-school program, indicated that Student required a full year residential program (Parad). He also concluded that Student’s level of need was consistent with the students they accepted and that Student could attend once an opening occurred (Parad).

56. Student began his junior year at the Burncoat ESP program attending English, Spanish, P.E. and ROTC in regular education classes with math, life skills and history with Ms. Wake (Wake, S27). He remained at Burncoat until September 20, 2002 (Mother, S27). While at Burncoat Student was earning his points, completed the work in his classes and turned in his homework in Ms. Wake’s class (Wake). In ROTC Student showed good attitude, behavior and participation earning a B+ in the course (S27A). He continued however to have trouble beginning or attending to his homework at home (Father). He was also late with several English writing assignments earning him an approximate grade of C- in that course despite excellent conduct, effort and participation (S27, Father). While Student attended Burncoat he appeared confident and happy to his teachers (Wake). His final grades during those three weeks were 90’s in Spanish, Health and integrated Math , a 92 in ROTC, an 88 in U.S. History and an 87 in English (P27, Wake).

57. Student began attending the Wediko residential program (Wediko) on approximately September 23, 2002 (Mother). Wediko is approved by the Massachusetts, New Hampshire and New Jersey Departments of Education (P12). It is also 766 approved and follows the Massachusetts Curriculum frameworks for Massachusetts students (Parad, Wade). The winter program accommodates only boys (P12, Parad). It has the capacity for 36 residential students and about ten day students between the ages of eight and twenty (Parad, see P12). It currently has thirty-eight students including about eight day students (Parad). Like the summer program, the Wediko academic year program uses daily and individual checklists covering academic goals, self-control and social competence and problem solving (P10, P11).26 Wediko student’s take English, Math, Science and Social Studies for an hour daily with an additional period of P.E. or an elective (P9). Typical classes contain eight students (P12). Classes are all one hour long and grades are pass/fail27 ; see (P8). Students also attend group therapy sessions, activity groups, daily social skill development groups, and weekly pyschotherapy and crisis intervention as needed. Wediko also offers family therapy on Sunday afternoons to those families that can take advantage of it (Wade, P12). The goal of the residential program is to make the changes necessary so that the student can be successful at home (Parad). The average residential stay for students is twelve to thirteen months (Parad).

58. Due to Student’s unilateral placement, Wediko developed its own IEP for Student (P5). Student’s IEP specifies that he will receive residential services of an hour of group therapy five times a week, an hour of family therapy once per week, ten minutes of daily medical management by the doctor and nurse and individual therapy as needed. Student’s special education services are daily social competency skills in the classroom and in a group, social behaviors and organizational skills and math in a therapuetic milieu (P5). Student was required to participate in state or district wide assessment because he had passed the MCAS in 10 th grade (Wake, S1). Wediko’s IEP does not list any accommodations or modifications nor does this IEP mention and provides no transitional planning; see (P5), compare (P5, S1). It also does not, like the IEP for Burncoat, address Student’s difficulties with written language and does not incorporate Dr. Grodzinsky’s recommendations in that area, see (P5, S1, S16).28

59. A Wediko student’s academic day begins in the homeroom at eight o’clock. The primary responsibility in homeroom is to turn in homework and have the first checklist filled out regarding homework effort, completion and quality (Wade, P10).

At 8:20 a.m. Student attends an hour math class in a class of nine to fifteen students. The teacher is certified in elementary education. The class also has two assistants (Wade, see also P9). Although other students may work in a group of two to three, Student’s instruction is primarily tutorial (Wade).

At 10:15 a.m. Student attends an hour language arts block with a group of eight students followed by an hour-long social studies block with the same teacher and students. The lead teacher (Mr. Vasquez) has taught language arts and social studies at Wediko for three years (Wade). The teacher has undergraduate training in P.E. and is the coach of the local high school soccer team. The teacher is not certified in education. The class also has two assistant teachers who are not certified in these subject areas (Wade). Dr. Wade formally supervises this teacher for one hour per week with six other teachers (Wade). The focus of the supervision is addressing day-to-day problems regarding, programming, schedule, curriculum or the needs of any particular individual student, as well as more general supervision that deals specifically with skills needed to teach seriously emotionally disturbed children. Dr. Wade also supervises the teacher on an ad-hoc basis in the gymnasium during lunch, such supervision to talk about individual children and their educational program (Wade). Dr. Wade has a Ph.D. in special education in research methodology regarding the education of severely learning disabled and behaviorally disordered students. He also has a M.Ed. in special education and a B.A. in history. His last experience teaching was in the 1980’s; (Wade), see (P18). The classes are taught through group instruction with individual assignments modified for each student (Wade).

After an hour lunch break Student has P.E. with Mr. Vasquez three times per week. The other two times a week Student participates in an elective. Student ends the day with biology taught by two teachers in a group of six. Both teachers are college graduates, one with training in drama, the other working toward his certification as an occupational therapist (Wade). Neither teacher is certified nor has previously taught biology; Id.

60. Student’s residential portion of his program begins at 2:45 p.m. (Vezina). Student is paired with seven other students. A couple of students in the dorm have, like Student, mood disorders, and/or are oppositional and/or have a hard time regulating affect and anxiety. Many also have a hard time negotiating relationships (Vezina). Students then transition back to the dorm where day and evening staff exchange any day-to-day information that needs to be communicated. At 3:00 p.m., Student has an hour afternoon activity period (i.e. sports) followed by an hour jobs period (i.e., recycling or community work) performed with one other student. Student then attends group therapy on Mondays-Thursdays, followed by dinner and chores, then homework. During this time Student goes with a staff member to the opportunity center to help him focus. Student also has an opportunity during this time to work on individual projects (i.e., fixing bikes). The homework hour is followed by an evening recreational period chosen by Student. Student does well during these times if he is not feeling a lot of stress; however if he’s had a difficult day Student requires staff intervention to maintain appropriate social relationships. Following is a nightly and weekly incentive program (arcade) that gives students an opportunity to play video games if they earn enough points (Vezina). Student is sometimes able to earn this opportunity; however no data is kept to ascertain his performance (Vezina). The arcade period is followed by bed preparation time and lights out; Id. Students leave Wediko at 2:30 p.m. on Friday and return at approximately 2:00 p.m. on Sunday, beginning their week with family therapy (Vezina).

61. While Student attended Burncoat he utilized a behavioral management/point system where students could earn up to 28 points per day or 140 points per week (Wake, S23). Students are given an individual point sheet and contract tailored to their needs (Wake, S23). The students are able to earn four points per class period for things such as arriving to class on time and being prepared, displaying appropriate behavior, beginning and remaining on task and engaging in appropriate interactions; Id. They can then cash in these points for various rewards or can save them for bigger incentives; Id. Student, (like the others) could also lose the ability to earn points for inappropriate behavior, if the behavior continued after a staff reminder and a labeling of the behavior. If the labeled behavior continued (or another inappropriate behavior replaced it) a student would be notified by staff that he would be unable to earn a second point and go to a ten-minute time out. If the student returns to class after a time out and continues to display inappropriate behavior, (s)he is immediately sent to time out again and loses a third point. If the student is unable to return to class after a ten minute period (s)he loses the privilege of earning points at the rate of one per five minutes (S23). Students also receive in-class restrictions for such behaviors as leaving the class without permission, skipping class, major verbal abuse to others, displaying dangerous behavior towards self or others and/or refusal to do assigned work. Students can also be sent to the office area for repeated or serious behavior and will often meet with Ms. Fagan to process the event or receive crisis intervention (Wake, Fagan, S23).

62. Wediko uses a daily academic checklist for homeroom and each class period using a rating scale ranging from a “0” for no evidence of progress to a 3 for extensive evidence of progress. The student receives points for each goal and for each class period (P10). It also uses this checklist in the residence with individual goals each week (P11, Wade). The staff uses these daily checklists to fill out weekly progress reports for the day and evening program that assess on a 0-3 point scale whether Student has met expectations; see (P12). When inappropriate behavior occurs Student receives a verbal cue or may meet with a staff member to label the inappropriate behavior and redefine expectations and then problem solve, process or rehearse appropriate resolutions or strategies (Wade, see P15). If this intervention is unsuccessful students will go to the opportunity center (a time-out room) for approximately a twenty minute period and will return to the group after a re-entry meeting (Wade, P15). If the student is not ready to return to the group he would remain in time-out. If the behavior escalated the student would be asked to go to the “mudroom” of his dorm and meet with staff who would talk to him about behavior that was inappropriate and what the student needs to do to regain control to earn “choice points”.

If the student is not able to go to the opportunity center Wediko brings in other staff members as a “show of force” that would be so compelling that the student would yield, knowing that there was little point in resisting the request” (Wade). If the student presents a threat to himself or others, restraint may be used (Wade). In-house suspensions and suspensions are used for only the most serious offenses (Wade, see P15). When “critical incidents” occur both day and residential staff fill out “critical incident reports” describing the incident and where it occurred, the interventions used and whether restraint was used and the outcome; see (P15).

63. Several of the off-task and inappropriate behavior and difficulties that Student had at Burncoat and at home have persisted during Student’s tenure at Wediko’s day and evening program ( compare Wade, Parad, Mother, Fagan, Wade). The majority of the critical incident reports that were made however occurred in the residential program; see (P15). The majority of the critical incidents occurring in the day occurred in math; Id. The vast majority of critical incidents that occurred in the residential program occurred between 9:00 p.m. to 9:30 p.m. during bedtime preparation, with the majority of the remainder occurring during the homework period or while Student was already in time-out for another behavior infraction (Vezina, see P15). Student however was also known to have good days or weeks; see (P14, P15, Wake, Mother).

64. Progress reports show that Student has consistently engaged in conversation that has disrupted class by talking or making verbal outbursts or “animal noises” and also has had trouble refocusing (P14, P6, compare Fagan, Wade). Student also has continued to make disrespectful and/or vulgar comments to staff and tested limits. On several occasions Student also made sexually inappropriate comments, however, unlike behavior at Burncoat, Student has directed these comments at female teachers; compare (P14, P15, Wake). Stealing and taking responsibility for his actions also continued to be a problem ( compare P14, P15, Wake, Fagan, Mother). Student also continued to have difficulty engaging in appropriate social interaction (P7, Vezina, Wade). Student appeared to have no early warning system to alert him to communication danger zones and lacked empathic awareness of others confusion with regard to which comments were likely to evoke hurt, anger, humiliation and even rage responses in his peers (P6). Often Student engaged in a “tough guy” role with both staff and peers and inserted his opinion into others’ business. He also engaged in sexist, sexually and/or age inappropriate or rude/hurtful remarks and failed to accept feedback from peers without feeling that they were attacking him. Student also was often too easily persuaded by peers who exhibit negative behavior; (P6, P14, P15, Mother, Wake). Student’s stealing continued as did his inappropriate use of the internet. He often failed to take responsibility for negative behavior and often engaged in power struggles failing to see the big picture (P14, P15, Mother, Wake). Ms. Vezina felt that these traits were consistent with a diagnosis of Asperger’s Syndrome (P6, Vezina).

65. In November 2002, the family therapist (Ms. Vezina) developed a treatment plan for Student. She noted that since his entrance on September 22, 2002 Student had displayed inconsistent or no progress with social skills and anger management and continued to display a poor self-concept (P7, Vezina). Student also showed inconsistent progress in decreasing his noncompliant and oppositional behavior; however with prompting Student had, in December 2002 and January 2003, made improvement in his ability to initiate a consistent daily self-care routine (P6, Vezina). She recommended that Student receive structured individual social skills training sessions using role play, frequent praise for any positive behavior and cognitive restructuring along with opportunities to participate in well structured and highly supervised competency based activities with a small peer group. She also recommended that Student be given strategies for labeling a pattern of difficult situations and identifying alternative prosocial behaviors through teaching him to use his words and reason while remaining calm, and use of a notebook to write down situations that confused him (P6).

66. From January-March 2003, several critical incidents occurred at Wediko that were not noted by Burncoat or Parents; see Transcript. Most of these behaviors occurred between 9:00 and 9:30 p.m ; see (P15). On several occasions Student was caught pocketing his evening medication and intentionally threw up his medication on one occasion (January 26, 2003). On another occasion (March 23, 2003) Student was found with a bottle of ipecac syrup with 1/3 of the bottle already gone (P15).

At that time Student’s previous dosage of 200 mg.of Seroquil (an antipsychotic) was lowered due to problems with sleep (Father). Wediko staff noted that when this medication was lowered Student displayed a marked deterioration in functioning evidenced by an emergence of psychotic symptoms (Rosen).

On February 11, 2003 Student intentionally cut himself on the chest with a thumbtack after having a phone conversation with his Father about stolen merchandise Father had found under his bed at home; (P15). The next night during “bed prep” Student painted a white cross on his forehead. When asked to wash it off Student exclaimed “You’re all sinners, I’m the only pure one”. Student then began throwing away several CD’s that he had broken into several pieces. Student was able to process the incident with staff and admitted that he was unable to handle his emotions (P15).

On March 3, 2003 Student, after receiving three time outs for inappropriate comments, began yelling at staff, threw his homework, punched a door, kicked and broke a light switch, left the dorm and was found lying in a snow bank wearing only a T-shirt and jeans. Student was able to process his behaviors with staff; however, it took ten minutes to get Student to the opportunity center. Student remained in the crisis center for three hours (P15).

On March 13, 2003, Student had to be physically restrained after an incident that escalated after he became verbally abusive and refused to follow staff directions to take a time-out for making a sexually inappropriate comment to a female teacher (Wade, P15).29 The teacher called two other staff members for assistance; however Student became more loud, argumentative and rude repeatedly calling the teacher a “bitch” (P15, Wade). After five minutes one of the staff members went to get two other teachers. The teacher left with the other students while the other four staff members told him he would have to leave the building. Student continued to refuse and threatened staff with physical violence if anyone touched him. Student was told that he had two minutes to make a decision. Four staff members then began to escort Student out of the building. Student responding by thrashing around, and using his weight to push and pull staff (P15). Student weighs close to 230 pounds (Wade). Student was taken out of the building and asked to continue on his own to the opportunity center. Student responded by becoming extremely agitated, yelling and threatening staff and frothing at the mouth. He then ran at Dr. Wade kicking him in the thigh while attempting to kick him in the groin. Four staff then restrained Student. After three to five minutes Student was able to stop resisting. At that point Student was escorted to the opportunity center where he remained for six hours processing the event with Dr. Wade and the family therapist (Wade, P15).

67. In approximately early or mid March 2003, Student’s bedtime dosage of Seroquil was split to a morning and bedtime dosage (Father, see also P1). Student is doing better with this medication change (Father).

68. On March 23, 2003 Wediko issued a critical incident report because Student was found with Ipecac syrup in his pocket. One third of the bottle was already gone (P15). Two and a half hours later Student was sent to the time-out chair for sexually inappropriate remarks. He was in the crisis center the following evening for similar verbal comments (P15).

69. On March 25, 200330 Student’s psychiatrist, Dr. Connor, reiterated his recommendation for residential placement due to Student’s significant and pervasive lack of insight into the manner in which his own conduct and behavior affects his ability to function despite medical intervention, mental health therapy and special education services; see (P1). He also reconfirmed the diagnosis of ADHD and ODD and added a diagnosis of Psychotic disorder/NOS due to evidence of illogical thought processes and evidence of other thought disorders (P1). Dr. Rosen agrees with this diagnosis (Rosen).

70. On March 31, 2003 Student informed his biology teacher in front of the class that he did not want him to teach him biology because knew that he (the biology teacher) “went to St. Lawrence University and graduated in ’98 with an English literature degree” (S15). Wediko staff did not know whether Student was obtaining the information from the internet or from his work in recycling. Wediko staff noted that this incident was not the first time Student had made comments to the teacher that he would only know by doing research (P15).

71. Wediko issued progress reports in late March or early April 2003 (Vezina). Student has shown progress in his organizational skills (P15A). He has also able to meet most of Wediko’s goals for him in math with the exception of use of tables and graphs (P15A). At home and at school Student has decreased his non-compliant oppositional behavior, the frequency of his outbursts and non-compliance have become less intense and Student’s physical aggression and property damage has significantly been reduced (Vezina, Father). Student is also able to regroup much better and does not have to be prompted to apologize (Wade, Father). Since Student has been at Wediko he has at times (although less than 50%) been able to catch himself before he has an outburst (Father). Student also helps with chores more often and appears calmer (Father). Although family therapy continues to be difficult for Student because of his problems transitioning from home to school and difficulty tolerating difficult issues, Student has shown improvement in his ability to focus on issues for longer periods of time (Vezina). Student has also displayed an increasing ability to trust and rely upon Wediko staff to help him solve problems, and his resistance to participation in programs has decreased. Student’s willingness to be redirected through verbal cueing has significantly increased as has his responsiveness to classroom structures (Wade). He has recognized when he needs breaks and is able to ask for them. Student has also shown a willingness to acknowledge that he has issues and a responsiveness to address them (Wade). When in a calm moment Student has spontaneously stated that Wediko has been helpful to him (Vezina). He has told his Father that he can relate to the other kids and feels good about helping them with their issues (Father). Student however still remains entirely dependent upon adults to mediate his social relationships and his use of pro-social problem solving skills continued to need improvement (Vezina, P15).

72. On May 7, 2003 Ms. Vezina issued a clinical progress report for Student. When noting Student’s areas of progress, Ms. Vezina observed that: “Student remains something of a mystery in this sense: his range and frequency of fluctuations in overall performance is so much greater than most Wediko students-all of whom display frequent ups and downs—that it is nearly impossible to neatly categorize his areas of progress vs. his areas of concern (P6A). [Student] might start off the week with clearly expressed anger, opposition, depressed mood and dysphoric affect, grossly inappropriate sexual comments and theatening comments and gestures primarily toward female staff, along with very frequent time outs and urgent need to spend time in our opportunity center to regain control. Then, with few or no signs of a complete turn around, [Student] abruptly begins to cooperate with our program, apologizes to female staff, works hard in group therapy, giving excellent feedback to his peers, and even taking steps to take responsibility for his quite inappropriate and dangerous prior actions. …[Student] is capable, at least in terms of his high level of cognitive ability, to do well in his academic courses. Unfortunately his high level of intelligence and his superior cognitive strengths are quite frequently interfered with by his high level of distractibility, his obsession with women in his classroom, his pattern of falling into the negative behaviors of his peers, and his ongoing struggle with rapidly changing moods and motivation. Also [Student] struggles much of the time with impulsive and compulsive needs to be focused on in class, rambling on in tangential ways in class and often mumbling to himself just loud enough to distract himself and those peers around him” Id..

Ms. Vezina also concluded that [Student] displayed many signs and features of Asperger Syndrome. Id.. She noted that Student displays systematic failure to comprehend communication and social pragmatics…[Student] struggles with deficits in comprehension of tone of voice, facial gestures, inflection and emphasis… For example, many times [Student] will interrupt another speaker, give a long and somewhat tangential “speech” and then be totally confused about the negative reaction of his peers…[Student] frequently misinterprets humor, tone of voice and facial cues…. In addition his impulsive insults, sarcastic mumbling, degrading remarks both to peers, staff and teachers, and when stressed, his pattern of psychotic-like tangential and bizarre self-directed speech suggest a combination of psychotic thought process along with a severe mood disorder”. Id. …”Between his Asperger presentation and his extreme mood fluctuations, he has not been able to develop or maintain peer relationships, feels chronically isolated, struggles with battered self esteem, hates himself for failing his parents, feels totally confused and lost about girls and sexual issues, and experiences himself as out of control most of the time, above all with his moods and impulsive actions which alienate peers, staff and teachers (P6A). The Wediko treatment team recommended a medication evaluation to address his severe mood dysregulation and chronic impulsivity, ongoing pragmatic instruction and a structured, residential setting where [Student] can feel safe, develop competency, acquire crucial prosocial attitudes and behaviors such that he is able to perform successfully in his academic subjects. She further noted that [Student] will remain somewhat lost until he can develop a genuine sense of compentence, interest and motivation in areas in which his peers can appreciate and identify with (P6A).

73. Worcester acknowledges that Student’s parents can no longer maintain Student at home all the time due to his serious mental illness see School Brief at 10. It also agrees that Student requires structure across all settings to be successful (Rosen). Worcester believes that the least restrictive environment for Student would be the Burncoat program, coordinated with a DMH group home program that would address noneducational issues; see (Rosen, Fagan, School Brief). As of February 3, 2003 Student was sixth on a waiting list with an anticipated group home bed available at the end of the school year; see DMH opposition to joinder and oral argument. As of April 4, 2003, Student was 4 th -5 th on the waiting list with an anticipated opening predicted in six to seven months (Anderson-Webb).

74. Worcester also believes that Wediko is inappropriate to meet Student’s needs because it does not provide the opportunity to participate with typical peers (i.e., English and ROTC) and does not provide appropriate academic instruction or assessment of Student’s mastery of the curriculum. Worcester also believes that residential care with all boys in a rural setting is too restrictive, one that Student does not need, and one in which he may become dependent; see (Rosen). Worcester also asserts that Wediko’s therapeutic program is less effective than Burncoat’s because Student requires constant supervision for transitions and has engaged in behavior at Wediko that has required more interventions for similar and more serious issues than have occurred at Burncoat. In addition, Wediko’s system of employing a “show of force” and their physical direction with Student if he is unable to respond with appropriate choices, contributes to Student’s escalation because Student, due to his disability, h as a hard time being flexible and cooperative. As such, Student has difficulty making appropriate choices under pressure, because it may take a half an hour to an hour to get to the point where he is prepared to make rational or appropriate decisions (Rosen, see also Parad).

FINDINGS AND CONCLUSIONS

At issue is whether the program and services that Worcester offered to Student at the Burncoat program in its current IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE). A subsidiary issue is whether in the event Student does require residential services, if those residential services are needed for educational reasons.

A. THE FAPE STANDARD

Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).

B. LRE

In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use accommodations and specialized services; see 20 U.S.C. 1412 (5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (18). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.

C. THE REIMBURSEMENT STANDARD

Parents may be reimbursed for the costs of providing special education and related services for their eligible children if they demonstrate that the program and services offered by the school district are inappropriate, and that the program and services that they obtain privately are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, so long as it is does meet the federal FAPE standard. 34 CFR 300.403(c), Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).

D. THE RESIDENTIAL STANDARD

An IEP designating a residential program is appropriate only if the severity of the student’s special needs is such that he can not educationally progress effectively in a less restrictive environment, even with the use of supplementary aids and services; see 603 C.M.R. 28.06(f). The courts have approved residential educational placements, for example, for students who need a comprehensive, 24-hour, highly structured special education program that would address students’ social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee, 775 F.2d 411, 416 (1st Cir. 1985).

The courts have also recognized that, in an appropriate situation, residential educational services may be provided by combining a day educational program with a group home, where the group home meets “specific educational criteria.” Abrahamson v. Hershman, 701 F.2d 223, 229 (1st Cir. 1983). The IDEA however does not require local school districts to finance foster care if the need for such care is solely noneducational in nature and a student can progress effectively in a less restrictive environment; see Abrahamson at 227-8. Worcester however, is not absolved of providing Student with residential services if he needs them in order to learn simply because Student is also eligible for DMH services and DMH has agreed to provide a living situation once Student comes off a waiting list. This responsibility exists even if Student also needs the same type of placement for safety or mental health reasons. See Abrahamson v. Hershman , 701 F.2d 273 (1983); David D. v. Dartmouth School Committee , 775 F2d 411 (1985), Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999).

E. STUDENT’S NEED FOR A RESIDENTIAL PROGRAM

After careful review of the testimony and documents presented in this case the record is clear that Student, at this time, requires a coordinated and highly structured therapeutic academic and living program that also addresses his nonverbal learning disabilities, in order to make meaningful and effective educational progress. There is no dispute that Student is a student with special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. Student has been diagnosed with several disabilities including, but not limited to, ADHD, Obsessive Compulsive Disorder, Oppositional Defiant Disorder, Nonverbal Learning Disability, Asperger’s Syndrome and a Pychotic Disorder with features ranging from paranoid and psychotic thinking, to mood swings, distorted thought patterns, extreme narcissism and grandiosity.

Some of these diagnoses are disputed among the professionals that have worked with Student. Regardless of the label, however, the record consistently shows that Student displays aggression and conduct problems, oppositional behavior and stealing. The record also consistently shows that Student has poor social skills, displays inflexible thinking, poor anger management, has difficulty taking others’ perspectives and difficulty filtering out less important detail. The Parties also agree that Student has fine-motor and organizational difficulties that affect his writing and math skills and his ability to complete assignments and organize appropriate materials. The record also shows that Student has difficulty adapting to changes in routine. Student’s poor self-esteem has lead to concerns of depression and to serious food issues. He displays anxiety in response to his social, behavioral and academic deficits. When this anxiety increases, Student’s ability to think clearly declines. Student has displayed these difficulties in his public and private school program, at home and in his after-school program.

The Parties agree that Student requires a well-structured therapeutic program that addresses his social and behavioral deficits and also addresses his organizational and math difficulties. The current IEP further includes an extended year program. Dr. Rosen has acknowledged that Student requires structure and consistency across all settings to be successful. Numerous less restrictive options have been tried to attempt to keep Student in his community. These have included a good therapeutic special education public school program with well qualified and caring professionals, individual and family therapy, medical intervention and social services ranging from respite, mentors, after-school and summer programs and housekeeping so that the family could spend more time attending to Student/family issues. Burncoat’s own reports show that Student was not able to make progress behaviorally despite a behavioral intervention plan, counseling and frequent communication between home and school. Student’s good behavior and participation during his first three weeks of 11 th grade at Burncoat is noted. However, the record shows that Student has had good periods in the past. Just as Student’s initial positive beginning to Burncoat compared to the totality of the evidence does not negate his educational need for a well coordinated therapeutic day and living program, neither do three good weeks in 11 th grade render the program fully appropriate to meet his needs.

At this juncture the well coordinated academic and living program required by Student needs to be implemented in a residential program. The record shows that Student has the most difficulty during transitions especially major transitions occurring between school and after-school and school and home. While coordination has been attempted through sharing of information and communication, it has not been implemented with a consistent therapeutic plan between all settings.

As such, Worcester will amend its IEP to designate a therapeutic residential program for Student. The IEP however, must also be amended to more fully address Student’s nonverbal learning disability and/or Asperger’s Syndrome. Student’s anxiety regarding his academic performance compromises his emotional and academic functioning, yet many of Dr. Grodzinsky’s recommendations for writing, instruction in keyboarding to bypass handwriting and specific strategies to address written language and organizational skills are not included in the IEP. These services and accommodations should be included in the IEP. The TEAM also acknowledges that Student has significant social skills deficits but has included no direct pragmatic instruction to address these deficits. In addition, Student is almost eighteen years old. Mr. Anderson-Webb believes that Student is likely to be deemed eligible for adult DMH services. Worcester’s IEP appropriately reflects that Student requires a 688 referral for transitional planning; however, a 688 referral has not been completed and must be done immediately.

F. REIMBURSEMENT ISSUES

The record shows by a preponderance of the evidence, that Student’s aggressiveness, disorganized thinking, limited self-control and lack of pragmatic skills were such that he could not make meaningful educational progress in a day program. Student however was able to make meaningful educational progress when attending a well-coordinated residential summer program. This is evidenced by Student’s ability to initiate social contact, connect with his group, gain a capacity to share and compromise, accept corrective feedback, increased compliance with adult limits, increased participation in school and recreational activities and decreased intensity in his outbursts.31 The evidence also shows however that at the end of the summer period Student’s pervasive mental health needs were such that he continued to require a residential program. Dr. Connor noted that: “Due to his disorganized thinking, aggressive behavior and limited self-control, it is my clinical opinion that [Student] can no longer be safely educated within a mainstream school setting”. Dr. Grodzinsky noted that “until [Student] is behaviorally and emotionally stable, he remains a fragile learner and even the best educational recommendations/teacher will have little impact”. (S16).

A parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. After careful review of the record I find that the Wediko school year residential program, as an interim program, was appropriately responsive to Student’s special needs, most particularly in the areas of behavior. As such Parents should be reimbursed for Student’s program there. Since Student has been at Wediko he has decreased his non-compliant and/or oppositional behavior at home and at school. The frequency of Student’s outbursts and non-compliance have also become less intense, his physical aggression and property damage has significantly been reduced and Student has shown improvement in his ability to be redirected and focus on difficult issues for a longer period of time (Vezina, Father).

However, the evidence shows that Wediko is not appropriate to meet Student’s needs on more than an interim basis. With appropriate behavioral supports and a consistent behavioral plan and appropriate instruction addressing his pragmatic skills and organizational deficits, Student is capable of receiving and benefiting from graded academic instruction geared to his above average cognitive level. Wediko’s academic year teachers are not sufficiently trained to provide adequate academic instruction or assessment of Student’s mastery of the curriculum; in fact more critical incidents have occurred during math, where Student has learning deficits, and in situations that are less structured and organized. In addition, Student is aware of his teachers’ lack of experience in the subject matter they are teaching.

Also, comparison of the progress reports and critical incident reports show that information is subjective and not consistently recorded between the residential and day programs. In addition, Wediko’s “show of force” technique and physical direction with Student if he is unable to respond with appropriate choices, contributes to Student’s escalation because Student, due to his disability, has a hard time being flexible and cooperative. He has required intervention at Wediko for similar and more serious issues than have occurred at Burncoat. While it is possible that Student may have deteriorated if he continued at Burncoat and/or medication changes may contribute to Student’s behavior, Wediko’s actions have also not been fully effective for Student. Ms. Vezina has indicated that Student will continue to remain lost until he can develop a genuine sense of competence, interest and motivation in areas that his peers can appreciate and identify with. At Wediko Student’s mood fluctuations is far greater than any other student in the program. He also appears to be the only student who has severe pragmatic deficits and other Asperger syndrome features. Student’s educational program must be tailored to all of his unique needs. As such, Worcester must find a day program with a residential component that can address his deficits associated with his Asperger’s syndrome and nonverbal learning disability as well as his mental health needs. It is directed to do so. Worcester is not precluded from exploring, along with residential school programs, coordination of a day program with a group home program, but must ensure that each setting (home, residential setting and academic setting) can provide the consistency and coordination that Student requires. Even if a group home is available, this coordination may be difficult to do in three separate settings as Student has shown difficulty transitioning even between inclusion and special education settings within the Burncoat program and within Wediko’s day and residential program. If a consistent coordinated program can not be located or created, Worcester must locate or create a residential educational program.

ORDER

Parents shall be reimbursed for their unilateral placement of Student at the Wediko residential program. Worcester will locate or create a coordinated day and residential program that addresses his mood disorder and Asperger syndrome/nonverbal learning disability features as described within this decision. Student shall remain at Wediko until such a program is created or located.

By the Hearing Officer,

Joan D. Beron

Date: July 18, 2003

Decision Summary

Case name : IN RE: Brian v Worcester Public Schools

BSEA #: 03-0307

Date issued : July 18, 2003

Representation of Parties : Parents represented by attorney

School represented by attorney

Issues :

1. Does Worcester’s IEP designating a day placement at the Burncoat High School provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) for Student?

2. If not, does Student require a residential program to meet his educational needs?

3. If so, does the Wediko Children’s Services residential program in Hillsboro, NH (Wediko) provide a FAPE to Student in the LRE, thus entitling Parents to reimbursement for their placement of Student in this program?

Facts : Student is an 11 th grader with serious emotional and learning disabilities that impact his ability to learn. Student has been diagnosed with several disabilities including, but not limited to, ADHD, Obsessive Compulsive Disorder, Oppositional Defiant Disorder, Nonverbal Learning Disability, Asperger’s Syndrome and a Psychotic Disorder with features ranging from paranoid and psychotic thinking, to mood swings, distorted thought patterns, extreme narcissism and grandiosity. The Parties also agree that Student has fine-motor and organizational difficulties that affect his writing and math skills and his ability to complete assignments and organize appropriate materials. He displays anxiety in response to his social, behavioral and academic deficits. When this anxiety increases, Student’s ability to think clearly declines. Student has displayed these difficulties in his public and private school program, at home and in his after-school program.

Holding : The record is clear that Student, at this time, requires a coordinated and highly structured therapeutic academic and living program that also addresses his nonverbal learning disabilities, in order to make meaningful and effective educational progress. Parents shall be reimbursed for their unilateral placement of Student at the Wediko residential program. Worcester will locate or create a coordinated day and residential program that addresses his mood disorder and Asperger syndrome/nonverbal learning disability features as described within this decision. Student shall remain at Wediko until such a program is created or located.

Prevailing Party : Student

Hearing Officer : Joan D. Beron


1

Brian is a psuedonym used for confidentiality and classification purposes.


2

“D” is an abbreviation for Diane.


3

The closing arguments were received on May 29, 2003. The Hearing Officer however upon drafting this decision noticed that some updated information requested from Parent was inadvertently not supplied. A conference call was conducted on June 26, 2003. The completed updated information was supplied on July 14, 2003.


4

DMH has agreed that Student meets the criteria for a DMH residential facility and has put Student on a waiting list. DMH stipulates that Student can receive DMH residential services when an opening occurs. On March 6, 2003 this Hearing Officer denied Worcester’s motion to join DMH without prejudice because neither party presented any authority to allow a BSEA Hearing Officer to order a state agency to provide services that part from the standard procedure that DMH has established pursuant to their rules and regulations nor did they show that the statute was unconstitutional or inconsistent with federal law or that DMH acted in a manner that was arbitrary or capricious; see Worcester Public Schools, 9 MSER 51.


5

The test used was the Behavioral Assessment System for Children (BASC), Parent and teacher versions.


6

UMASS Medical Center also suggested genetic counseling and an audiological intervention. The genetic counseling was not able to be pursued because DSS’s adoption materials did not have any information about his biological relatives (Mother).


7

For instance Student began telling stories about living in a closet in his room (Mother).


8

The Parties do not believe that firesetting is a current issue.


9

Student received an evaluation from an educational consultant in August 1999 that reflected high average verbal ability, superior visual discrimination skills, low-average ability in organizing and sequencing abstract information, slow processing speed and weak fine-motor skills (S21). The evaluator (Marilyn Engleman) recommended a placement with a small student/teacher ratio with teachers familiar with working with students with attentional/organizational weaknesses and oppositional defiant behaviors. She also recommended that all written work be done on a computer, that graphic organizers be used and that Student be given remediation in organization. She also recommended that close monitoring and ongoing therapy be part of his program (S21). No evidence was presented regarding whether Worcester was given a copy of this evaluation to develop the IEP.


10

Scores on the Wechsler Individual Achievement Test (WIAT), the Wide Range Achievement test (WRAT) and the Botel Reading Inventory show above average reading and spelling scores and above average verbal and expressive skills with average math scores attributable to attention issues ( see S18).


11

The instructional aide is still with the ESP program and currently has seventeen years of experience.


12

Ms. Fagan has worked as a social worker since December 1989 (S24).


13

If Student remained in the Burncoat program for 11 th grade, Ms. Fagan would be there full time.


14

Dr. Rosen is a licensed psychologist, is an associate in psychiatry at the UMASS Medical Center, an adjunct instructor at Clark University and Assumption College and has been in private practice since 1978; see (S24).


15

Dr. Grodzinsky noted that “the difference between NLD and Asperger’s is a fine line; some researchers suggest it is only a matter of degree rather than a distinct reliable boundary.” (S16).


16

Dr. Grodzinsky also recommended a psychopharmological consulation to assess side effects and a comprehensive neurological evaluation to rule out OCD and Asperger’s.


17

If interagency responsibilities and/or transition is appropriate, Schools must make a referral to the appropriate agency (688 referral), see c. 71B s. 12B. The typical application period is six to twelve months prior to the eighteenth birthday or twelve months before graduation..


18

Student had previously been proscribed Ritalin but was taken off of it because it increased his talking and emotional reactions. He had also previously used Dexedrine with no success and Desipramine with mixed results. Student also previously was proscribed Nortripzyline but was taken off because it caused significant weight gain and was ineffective. He was also on a combination of Cylert and Clomipramine but was switched to Celexa and Concerta. He became disinhibited on Zoloft (P29, S15).


19

Student had previously been in mainstream Science but had to be pulled out for behavior issues (Wake).


20

DMH recommends group homes for students who are struggling at home but who are being maintained in their current school settings. Once an eligible client moves off a waiting list, the group home determines if the applicant is appropriate. If at that time the applicant is not appropriate (i.e., not restrictive enough) the client goes to the bottom of the list for that facility. The average time on a waiting list is six months but could be as long as fifteen months (Anderson-Webb).


21

When a student turns eighteen (s)he can continue receiving DMH services if (s)he qualifies under the adult criteria for eligibility. Asperger’s Syndrome is not a DMH qualifying diagnosis. Clients whose primary diagnosis is Asperger’s Syndrome initially get rejected by DMH and referred to the Department of Mental Retardation (DMR). If however the client’s full scale score is too high to qualify for DMH services the referral is sent back to DMH. Student would probably qualify for adult DMH services (Anderson-Webb).


22

DMH clients usually receive services in their service network areas; however on occasion, DMH has placed clients outside of their residential network if they have specific needs that can’t be met in their residential area. DMH also has shared case management, services and financial responsibility with DSS, DYS, school districts and other agencies and has coordinated services outside of the area where they live (Anderson-Webb). Services however are dependent on the amount of money that may be available for a service (Anderson-Webb).


23

DMH usually recommends staff secure facilities for clients who have had multiple placement failures or multiple hospitalizations (Anderson-Webb).


24

The Webster House program will, as of July 1, 2003, move and be called the Grove Street program. It will have an on-site therapist, a slight increase in the level of care and more clinical supports (Anderson-Webb).


25

Parents placed Student on the waiting list for Webster House in late summer or early fall (Father, Anderson-Webb).


26

Student’s individual and daily checklists are blank; see (P11, P12).


27

Student passed all his classes. Further information is not available; see (Wade).


28

Neither IEP nor any evaluation addresses pragmatic/(social language) issues or services to address these deficits.


29

Incident reports indicate that Student was restrained only one time; see (P15). Testimony indicates that Student was restrained on more than one occasion (Vezina).


30

Two critical incident reports were issued on that day, one during biology for poor impulse control, the other at bedtime (S15).


31

Parents are not asking for reimbursement for the summer program because it was funded by Worcester Communities of Care.


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