Cole v Sharon Public Schools – BSEA # 06-1557



<br /> Cole v Sharon Public Schools – BSEA # 06-1557<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 06-1557

IN RE: COLE1 v SHARON 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 occurred at the Bureau of Special Education Appeals (BSEA) in Malden, MA on June 12, 2006, June 13, 2006 and June 15, 2006. The matter was continued at the request of the Parties on July 15, 2006 in order to receive and review the written transcription from the hearing.2 The record closed on August 28, 2006 when written closing arguments were received from both Parties.

Those present for all or part of the hearing were:

Mother

Father

Brother

Barbara Bruno-Golden Pediatric Neuropsychologist

Marsha Stevens Educational Consultant

Arlene Gruber Special Education Administrator K-7, Sharon Public Schools

Naami Turk Consulting Clinical Psychologist, Sharon Public Schools

Sharon Seyller Guidance Counselor, Sharon Public Schools

Judy Levin-Charns Special Education Director, Sharon Public Schools

Joseph Connelly History Teacher, Sharon Public Schools

Kathleen Fenton School Psychologist, Sharon Public Schools

Ray Wallace Attorney for Parents

Barry Mintzer Attorney for School District

Joan Beron Hearing Officer, BSEA

Maryellen Coughlin Court Stenographer, Catougno Court Reporting

The official record of the hearing consists of Parents Exhibits marked P1-P78 and School Exhibits marked S1-79C and approximately 2 ½ days of stenographic recorded oral testimony.

ISSUES

1. Did Sharon’s June 2005-June 2006 Individualized Educational Plan (IEP) for Cole, provide him with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

2. Does Sharon’s January 2006-January 2007 Individualized Educational Plan (IEP) for Cole provide him with a free appropriate public education (FAPE) in the least restrictive environment (LRE)? implement that IEP?

3. If not, should Parents be reimbursed for its unilateral placement at the Hillside School3 ?

FINDINGS OF FACT

1. Cole (born May 8, 1993) is a charming, handsome and personable thirteen-year-old boy who loves animals and cars (Father). Cole is a Sharon resident who lives with his Parents and an older brother who currently attends college out of state. Cole currently attends the Hillside School as a residential student where his Parents unilaterally placed him in December 2004 (Father).

2. Cole was adopted when he was an infant. He was a fussy child with delayed speech and language that improved when ear tubes were inserted at three years (P27). Sharon first evaluated Cole when he was in preschool (SY 97-98) due to Parents’ concerns regarding Cole’s impulsivity, his inability to follow multi-step directions and poor social skills including bullying, lying and moodiness (Father, P34, P29, P28). At home Cole often got angry very quickly especially when there was any change in his routine or when things occurred that did not meet Cole’s high expectations for himself (Father). Cole also was unaware of his emotions until they reached a critical mass and Parents and Brother often had to be very cautious to try to ensure that they did not send Cole into a rage or that he did not set himself off (Father).

3. On or about November of Cole’s 1 st grade year (SY 99-00), Parents privately engaged a psychiatrist. Parents also requested a full CORE evaluation to address concerns regarding Cole’s frustration in school and his pediatrician’s concern about Cole’s auditory, visual and cognitive processing (Father, P60, P32). Testing showed that Cole had superior intellectual functioning with a thirteen point split between his performance (IQ 125) and verbal abilities (IQ 112), distractibility, a decline in attention during instruction, and decreased spatial organization especially in handwriting (P33, P32, P30). Cole began receiving Title I services and OT in the middle of first grade (Father, P27, P28, P30). Sharon did not offer a social skills group at that time and Cole did not participate in a group because Parents could not privately locate an appropriate peer group for Cole (Father).

4. Beginning in March of 1 st grade (March 2000) Cole began to have behavioral outbursts at least two to three times a day at home (Father, see P24). These behavior outbursts ranged from threatening Mother and Brother with knives, throwing a shoe at Mother when she was driving a car, punching his brother and stealing (P21, Father).

5. Cole was hospitalized for five days during the July 2000 (between first and second grade) due to stress that occurred when Cole’s dog died and stress related to his older brother’s Bar Mitzvah (Father, see P24). He began taking Wellbutrin in July 2000. This appeared to relieve Cole’s depression and statements of suicidal ideation (P24).

6. In August through October of 2000 Cole received a series of evaluations4 from Health South in Braintree to assess the reasons for Cole’s uncontrollable tantrums at home and periodic aggressive behavior at school as well as continued physical symptoms such as waking up from sleep to vomit (P27). Dr. Carol Leavell’s neuropsychological testing showed that Cole had significant problems in executive functioning (P27). Consistent with an executive function disorder Cole had problems with attention, impulse control, organization, self-regulation and cognitive flexibility (P27, see also Bruno-Golden, Turk).5 Cole was also diagnosed as depressed, with questions remaining suggesting sensory integration problems as well (P27). Dr. Leavell recommended that Cole’s teachers break down and simplify directions, reduce his writing requirements and that Cole receive services two to three times a week that would focus on writing skills including spelling, grammar and punctuation. Dr. Leavell also recommended that Cole be placed in a social skills group and have regular weekly counseling in school to monitor his behavior in school and that the family continue in family therapy to address home issues. She also recommended that Cole receive a behavior program that was consistently implemented in the home and carried over in school (P27, see also P25).

8. Cole continued second grade (SY 00-01) at the Heights Elementary School in Sharon with OT services, a social skills group and a behavior management plan (Father, P24). Cole had an extremely good year in second grade due to an excellent teacher who would ensure that Cole understood the concepts before moving on to another topic (Father). However, in third grade (SY 01-02), Cole had a very difficult year despite an excellent teacher. His problems with homework escalated including problems getting his homework home, problems understanding homework when it was brought home, and difficulty completing it on time even with extensive help from Parents and excellent communication from the teacher (Father, see also S65). Cole had many meltdowns at home, many requiring physical restraint6 ( Father, see S65). He often came close to hospitalization and on one occasion hurt his Mother while she was trying to calm him down; Id. He received a Needs Improvement rating in Reading on the MCAS and 3 rd grade progress reports show that Cole needed improvement in keyboarding and writing (P55, S42).

9. The family began to see a family therapist (Barbara Bruno-Golden) on or about February 27, 2002 (P23, Bruno-Golden, see Father). Dr. Bruno-Golden began working with the family on issues involving how to deal with Cole’s lack of boundaries, his inability to make choices without explosions, his obsession over details, his anxiety regarding school or any change in routine (Bruno-Golden).

10. On March 14, 2002 Cole got very angry with his brother and threatened to kill him (Father, Bruno-Golden, see S55, 56). On March 22, 2002, Dr. Bruno-Golden sent Sharon correspondence signed by her and the pediatric neurologist Dr. Singer that Cole could return to school. Cole did return to the Heights Elementary School on March 25, 2002 (Father, Bruno-Golden). The TEAM did not reconvene prior to Cole’s return; see Record. Because Cole showed an inability to regulate his behavior when he was frustrated or stressed (real or perceived) Dr. Singer and Dr. Bruno-Golden diagnosed Cole with Organic Personality Disorder: Explosive Type. They also gave Cole an Axis III diagnosis of mild traumatic brain injury and an Axis IV diagnosis of severe educational need (Bruno-Golden, P23). Dr. Bruno-Golden recommended that Cole receive a speech/language evaluation from a speech pathologist familiar with frontal lobe disorders. Dr. Bruno-Golden also indicated that Cole required placement in a twelve-month residential educational setting that could provide a comprehensive psychoeducational program until he could develop appropriate self-control behaviors. She also indicated that while Cole required a structured setting, good performance in a structured classroom setting may not mean that he is generalizing what he has learned in novel or unstructured settings (P23, Bruno-Golden). Dr. Bruno-Golden made the recommendation for a twelve-month residential program because she believed (and believes) that all children with frontal lobe dysfunction do not do well once they reach the middle school years (Bruno-Golden, but see Turk).

11. Sharon conducted educational assessments in early April and reconvened the TEAM on April 9, 2002 (S24, S6). Present at the meeting were the Parents and their educational advocate, Cole’s teacher, the speech/language therapist and the occupational therapist, the Principal, the Special Education Director, the school psychologist and the district clinical psychologist (P6/S6). Also at the TEAM meeting was Dr. Rick Sprague, a psychologist from the CHARMSS Collaborative via a recommendation from Dr. Bruno-Golden (Bruno-Golden). Sharon considered Dr. Bruno-Golden’s recommendation but did not feel that it was the least restrictive environment for Cole and developed an IEP amendment from April 9, 2002-May 29, 2002 that continued his once a week occupational therapy and added one period per week of speech/language therapy and consultation to address social/behavioral issues at home. The IEP amendment also provided for consultation and an evaluation from Dr. Sprague, added supervision in the playground during recess, modified homework and an opportunity to do written assignments orally and a reduction of demands at school (P6/S6, see S23). The IEP amendment was accepted (P6/S6).

12. Dr. Sprague observed Cole at school on May 15 and May 17, 2002 (S23). He also talked to Mother by phone and met with Cole’s teachers to review his program. Mother noted that Cole’s medication and his behavior had improved but that neurobehavioral specialists had given her a guarded prognosis regarding Cole’s ability to cope with homework and other increased demands in middle school and beyond (S23, Father, Bruno-Golden). However, Cole’s teachers informed Dr. Sprague that Cole was successful in grade level work in 1:1 learning contexts and able to participate in regular classroom activities with frequent encouragement and occasional redirection. Dr. Sprague observed that Cole’s peer interactions were positive. He noted that Cole did at short intervals in the day, have incidental moments of regression and noncompliance but could be redirected by his teachers. Dr. Sprague recommended that Cole attend Sharon’s Team-based learning program, that those Team-based teachers assume responsibility for those aspects of the curriculum where Cole exhibited avoidance or regression and that academic demands should incrementally increase, affording Cole time in a 1:1 setting with staff members who could form an immediate rapport with him (P23).

13. The TEAM reconvened on May 29, 2002 (S5). Present at the meeting were the Parents and their educational advocate, Cole’s grandmother, Cole’s teacher, the speech/language therapist and the occupational therapist, the Principal, the Special Education Director, the Elementary coordinator, the school psychologist and Dr. Rick Sprague from the CHARMSS Collaborative (S5/P8). The TEAM recommended a 4 th grade placement in the Team-Based Learning Program (TBL), a therapeutic behavioral program within the Heights Elementary School (Father, Turk). Cole would also receive pullout speech/language three times a week to address pragmatics and written communication, speech/language services in the regular education classroom and occupational therapy services in the regular education classroom for one period per week and consultation. Parents accepted this IEP on the condition that the program was evaluated in October and a TEAM meeting set up in early November to evaluate its suitability for Cole and consistent consultation was provided.7 .

14. Cole did well over the summer. He entered the 4 th grade in the Team-Based Learning program in September 2002. As the academic demands increased, Cole’s behavior deteriorated (Father, see P21). During the last week of September Cole, after being told that he was going to be late for school, threw his bagel at Father, kicked chairs and impulsively ran out into the street. During the same week, after Mother told Cole that he had misspelled a homework word, Cole began to get violent. Parents admitted Cole to the Acute Residential Treatment Program (ART) at the Walker School (Walker) (Father, see P21). Test results showed that Cole displayed hyperactivity that the evaluator speculated increased when Cole had a complex task to perform. Cole did not display any out of control behavior in the structured ART setting but displayed anxiety when other kids were noisy or displayed behavior problems. Walker recommended that a family stabilization team come into the home to help them manage Cole at home. Walker also recommended more use of the private tutor the family had hired to help Cole with organization. Walker also recommended a reduction of outside activities to alleviate stress. Walker further recommended that demands in school be reduced however acknowledged that reducing Cole’s school requirements significantly may not allow him to obtain an effective education. Walker discharged Cole on October 8, 2002.8

15. On October 9, 20029 . Sharon received an evaluation from Jeanne Civiello, a speech/language pathologist specializing in evaluating individuals that exhibit attentional and executive functioning disorders with accompanying language disorders (S22). Ms. Civiello conducted an evaluation of Cole on June 6, 2002 and June 12, 2002 (S22). She also observed Cole in his third grade classroom for two hours. She noted that Cole required cues to initiate tasks and follow through and at times was impulsive but that he could be successful with tasks with cues and structure (S22). She recommended a series of organizational strategies including 1:1 with carryover at home, breaking down tasks with checklists to assist Cole in planning, self-monitoring, initiation and follow through of tasks, the development of a daily planner for homework assignments, rating scales to help self-identify attention difficulties, reading strategies including paraphrasing and summaries, writing strategies such as brainstorming and chunking and teaching of test taking and note taking strategies and role playing to assist in appropriate behavior. Ms. Civiello noted that children with frontal lobe lesions may do well in a structured elementary program but often have more trouble as the complexity of material increases and structure decreases in middle school and for this reason thrive in residential placements where all staff is trained to structure and teach compensatory strategies. Ms. Civiello noted that whatever program Cole attended would require consultation from a person with expertise in dealing with children with brain injury (S22).

16. On October 18, 2002 Cole was admitted to Westwood Lodge (Father, P20). He positively participated to the structure of the program. Westwood noted that Cole was a perfectionist who was triggered by small mistakes and that his high stress level impaired his ability to learn. Westwood recommended that Cole be further evaluated by the school system. Cole was discharged on October 25, 2002 and Westwood forwarded its recommendation to Sharon on or about October 28, 2002 (P20).

17. On October 23, 2002 Dr. Rick Sprague met with Cole’s school team to review his program. Dr. Sprague talked to the teachers about continuing to work to decrease the frequency of needed redirection, increasing Cole’s concentration on tasks and working on organizational skills extending independent work that could be done without prompting. Dr. Sprague recommended that the school psychologist or language specialist collaborate with Parents on behavioral protocols that work in school so that they could be carried over in the home (S20).

18. On November 22, 2002 Dr. Bruno-Golden applied for DMH eligibility for Cole (P19). She indicated that Cole was diagnosed with organic personality disorder, had moderate school problems, had poor judgment of the consequences of his behavior, poor insight formulation and moderate anxiety disorder with poor coping skills for real or perceived stress. She also noted that Cole had moderate to severe attention/executive dysfunction but that he had normal intellectual ability and was a personable child (S19). She also indicated that Cole had physical outbursts but did not indicate that he also displayed running, assaultive behavior at home or self-abusive behavior that required physical restraint; compare Father, P21, P19). On December 27, 2002 DMH found Cole to be ineligible for services (P18, but see Turk). DMH recommended an outpatient psychiatric evaluation, participation in groups, another neuropsychological evaluation, a sensory-integration evaluation, and a CORE reevaluation. DMH also recommended that Sharon provide and fund a tutor for Cole who was trained in cognitive remediation strategies. DMH noted that if Cole did not have the appropriate educational services and support and have academic successes then behavioral problems would most likely spread into the home environment. DMH noted that if the school was unable to provide an appropriate program and Cole continued to have behavior problems due to homework and school pressures, then a therapeutic day school would be an appropriate setting for him (P18). Although Sharon knew about the CAP evaluation it never received it because Parents told them that the evaluation did not contain any information that the school needed (Grubert).

19. Cole received his three-year reevaluation from Sharon in November, December 2002 and January 2003; see (S10-19). Sharon’s psychological testing continued to show a fifteen-point split between Cole’s verbal and performance scores indicating stronger skills in behavior than in language (S16). Personality assessments showed that Cole had a diminished self-esteem with difficulty identifying and labeling emotions and some confusion over making choices that are right or wrong (S16, see also Father). He also scored in the clinically significant range on the Behavior Assessment for Children (BASC) in behavior and “At Risk” ratings in hyperactivity and adaptability (S16). The TEAM-Based Learning teacher noted that although Cole tested in the low average to average range in all academic and language areas, he was a bright and well liked member of his 4 th grade class, and was making progress with minor modifications and support. She recommended that Cole remain in the Team-Based Learning Program because he continued to need support with punctuation and writing, support with homework and other organization issues and therapeutic support (S19, see also S18, S15, S13, S12).

20. Cole also received a Brain Electrical Activity mapping test (BEAM) in March 2003 (P14). The BEAM study showed left temporal abnormality consistent with a behavior dysfunction including rage attacks and/or auditory processing dysfunction and/or a reading disorder (P14).

21. On May 5, 2003, Sharon also received an updated neuropsychological evaluation from Carol Leavell conducted in February and March 2003 (S14). Dr. Leavell’s evaluation reconfirmed executive functioning difficulties with some inefficiency in Cole’s working memory and a tendency to over focus on details. She noted that children like Cole require an enormous amount of external control and support from their environment and thrive in a highly structured therapeutic academic environment that incorporates a therapeutic milieu including a levels system of reinforcement for certain behaviors. She also recommended ongoing consultation from a person with expertise with children who have high-level executive functioning deficits and significant emotional distress. Dr. Leavell also recommended that the school staff have training in aggression management and that there be a family support plan. Dr. Leavell also recommended that if Cole remains in a public school setting he should have an aide to assist Cole in abstract reasoning, that he receive a linguistically based language and spelling program in a resource room setting and that he receive accommodations such as keyboarding, graphic organizers, brainstorming and repetition of oral instructions, preferential treatment as well as cuing and time management techniques.

22. The TEAM reconvened on May 20, 2003 and developed an IEP for Cole to receive instruction in the Team-based Learning Program with pullout speech/language services and instructional assistance each three times weekly. The IEP also indicated that Cole would receive a rule-based multisensory approach for decoding and written expression, pragmatic instruction and would have access to an Alpha Smart, as well as several accommodations recommended by Sharon and outside evaluators; see (S4, compare S4, S10-19). Parents accepted the IEP on August 20, 2003 (S4). Cole also had an instructional aide in the classroom (Father, see S36).

23. Cole continued in the Team-based learning program in 5 th grade pursuant to an accepted IEP developed on June 15, 2004 (Father) Cole had an excellent 5 th grade teacher. Consistent with his disability Cole continued to have difficulty with organization, grammar, writing, attention and completion of homework assignments and was tardy for 39 days during the school year; see (S36, S37-38). However, Cole made good progress in reading and writing and was developing stronger reading comprehension skills; Id. Parents agree that Cole had a good year at school and at home and had during the summer successfully attended a two-week people to people program in Australia (Father).

24. Cole transitioned from the Heights Elementary School to the Sharon Middle School in 6 th grade (SY 04-05) pursuant to an accepted IEP developed on June 15, 2004 and June 29, 2004 (S2, Father). Cole’s IEP called for 15 minutes per week of consultation between the special education teacher and regular education staff, daily pull-out instructional assistance in the resource room to address written language, spelling and organization, pull-out speech/language therapy twice a cycle to address social skills and instructional support in the regular education classroom for four forty minute periods per week (S2). The IEP also listed several classroom accommodations and MCAS accommodations (S2, S3). These accommodations included verification that homework assignments were copied accurately, highlighting the parts of homework that were most important, modification or reduction of homework if necessary, checking and organization of the homework planner by the instructional assistant and breaking down long-term assignments into smaller, more manageable parts; see (S2). This IEP eliminated the weekly consultation between the TEAM, reduced instructional support in the regular education classroom by 160 minutes because the services were delivered on a six-day instead of a five-day cycle and reduced speech/language therapy services by one session. However the IEP increased pullout instructional support from three times a week to daily support; compare (S4, S2). Although Cole did well in the Team-based Learning (TBL) program in elementary school he did not enter the TBL program in Middle School either because he did not access the supports of the program and did not require it or because it did not exist at the Middle school level and could not be recommended even if he did need it; compare (Father, Turk). Parents were told that the program did not exist at the Middle school level and that the most equivalent program would be in the resource room (Father).

25. Cole’s first few weeks in sixth grade were successful. Cole effectively began a social skills group run by the school psychologist (Fenton). He also began attending a boys’ focus group with five boys, run by the guidance counselor, which focused on establishing relationships and transition issues that occurred from elementary to middle school (Seyller). However, during the third or 4 th week of school Cole began leaving the house without telling Parents where he was. He also began complaining about his aide because his aide was pushing him (academically), which Parent noted was a phrase that Cole used when he was frustrated or stressed (Father). He told Parents that the aide was a terrible person and that he was going to have the aide fired (Father). Parents sent Cole’s TEAM a letter on September 10, 2004 informing them that homework completion was a concern and that Cole had come home overwhelmed and unprepared to do his homework because he could not recall what to do and the instructions in the planner were not clear (P57). Parents asked the Sharon staff review Cole’s homework with him prior to him leaving the day and if possible, especially in Math, to have Cole and a teacher do one problem together in Cole’s notebook so that skills could be reinforced and so that Cole would know that he was capable of doing the work (P57).

26. On September 15, 2004 Parents informed Sharon’s special education teacher Nancy Pearlstein that the aide was not clearly identifying what Cole’s math homework assignment was because his planner was unclear and when this occurred Cole refused to do homework (P57, see also Father, P75). Ms. Pearlstein and the aide (Jason Montrose) and Parents sent frequent emails back and forth during September and October 2004 regarding the homework (P57, S72, see also Father). Long term assignments were not always broken down into smaller, manageable parts nor was homework modified or reduced or highlighted as indicated on his accepted IEP; compare (S2, S3, S72 p. S349, P57 p.19, P57 p. 28, P57 p. 31, P57 p. 35, see P75). The aide also let Parents know when Cole had not completed assignments but did not always clarify the assignments missing; see (P57 p. 10, P41, see also Father, P75). In addition, the assignments in Cole’s planner did not match up with the emails that Mr. Montrose had suggested regarding modifications and concerns. Therefore Cole (and Parents) did not know the dates that homework was due; see P57 p.12-13, see also Father, Connolly).

27. On or about October 4, 2004 Cole received a progress report that indicated that he needed improvement in Reading, Writing and Math and although he was meeting curriculum standards in science and social studies both teachers noted that Cole was missing assignments and needed better organization; see (S29).

28. On October 5, 2004 Parents asked Ms. Pearlstein to inform them when homework assignments were due, to make modifications and inform them what the modifications were and to accurately report in the planner and email regarding what was due. Parents also asked that Cole be able to use the academic lab to start his homework, especially long-term projects (P57 p. 12-13). Ms. Pearlstein informed the aide that they needed to talk; however inconsistencies remained between what was in the planner and the emails; see (S50, S49).

29. On Friday, October 7, 2004 Parents met with the school guidance counselor Sharon Seyller and asked that the TEAM immediately reconvene so that they could share concerns regarding Cole and share information regarding how he learns (P40, Seyller). Parents requested a meeting the following week or no later than the week of October 18, 2004 (P40).

30. Ms. Seyller began to regularly collaborate with Cole’s special education teacher Nancy Pearlstein and all of Cole’s regular education teachers and his special education aide Jason Montrose regarding how to have effective communication and how to continue to add strategies that would be effective with Cole. Cole’s instructional aide Jason Montrose began an email system with teachers. The teachers and the aide also began redirecting Cole rather than putting pressure on him when he started to shut down and/or did not want to engage in an activity. The teachers also allowed Cole to have a five-minute walking break and offered him opportunities to stay for extra help. The teachers also cued Cole when he was in the classroom and when Cole told them that he did not like his aide standing right next to him told Mr. Montrose to stay focused on Cole but physically not as close because it made Cole uncomfortable, and made Cole shut down more. The guidance counselor and the teachers and aide began having constant feedback regarding what was and was not working and when something wasn’t working Sharon staff modified or eliminated the strategy.

31. On October 12, 2004 the aide informed Parents that Cole was throwing paper balls in math class (P57 p. 19). This occurred while Mother was away on a business trip and while a substitute was teaching the class; see (S72 p. S356). As of October 14, 2004 Cole still did not know what his homework assignments were, did not appear to be receiving adequate writing support, did not appear to be receiving organizational help regarding study skills and the assignments in the planner continued to not match the emails coming home (S72, p. S355, S75, Father). Parents sent Sharon another email to this effect on October 18, 2004; see (S50, P57 p. 24-25). Mr. Montrose clarified the assignment in an email that day (S57 p.26).

32. On October 18, 2004, Father sent the TEAM an email informing them that Cole was having a very difficult time. He informed them that Cole was acting belligerently, shouting, slamming doors, swearing and refusing to listen to almost any requests (S50). Father informed Sharon that Cole recognizes that his behavior is socially unacceptable at school and does not experience difficulty in school but that some of the difficulties at home stem from difficulties at school; Id.

33. On October 19, 2004 Cole was sent to the Principal’s office for being disrespectful, telling Mr. Montrose “I don’t like you cuse (sic) you make me do work that I do not like” (P39).

34. The TEAM reconvened on October 21, 2004 (Father, Seyller, Fenton, S51). Sharon’s Middle School Team was informed that what happens at school has an effect at home, that Cole was highly impulsive with no warning, that Cole was generally unaware of his emotions and had a tendency to believe what he wanted to be true and did not really understand the concept of lying; Id. Sharon told Parents that they did not see these behaviors at school (Seyller). There was no discussion about changing Cole’s placement (Fenton, Seyller, Father). There was also no discussion regarding conducting a Functional behavioral assessment (Seyller, Father). Sharon’s guidance counselor, Sharon Seyller agreed to provide Parents with regular updates each Friday (Seyller, Fenton, S52). Parents appeared satisfied with this outcome (Fenton).

35. On October 26, 2004 Cole met with Dr. Singer for a medication update. Father told Dr. Singer that Cole was having problems at home but that he had had a good four to five weeks in school.10 Dr. Singer told Father that he thought that Cole had outgrown his course of Amantadine and recommended increasing the dosage (S69, see Father). Parents agreed and Cole’s dosage was increased (Father). Father also spoke to Ms. Seyller on that day and told her that it would be useful to speak to Dr. Bruno-Golden (Seyller). Ms. Seyller asked for a release to talk to Ms. Bruno-Golden (Seyller). Father told Ms. Seyller he would send the release the following day (Seyller).

36. On October 27, 2004 Mr. Montrose told the Sharon Middle School staff that Cole had told him that he was fighting with Father all night and all morning long and that Cole’s mom wanted to kick him out of the house. Cole also told Mr. Montrose that he was restrained by Father and offered to show Mr. Montrose the bruises on his arm (S27). Cole was sent to the school nurse (S45). Both saw a quarter-sized bruise on Cole’s right forearm and a 2-inch bruise on Cole’s left knee. Sharon notified Parents and informed them that it had to file a child abuse report (51A) with DSS and a 51A report was filed the following day (Father, Seyller, S45).

37. Father and the guidance counselor Sharon Seyller spoke on October 29, 2004. Ms. Seyller told Father that Cole was getting B’s in all his classes and was behaviorally doing well in all his classes (Seyller, S52). Later that day Cole wrote, “I shall kill myself” in his planner. Parents and Sharon staff did not notice the note at the time because Parents were concentrating on the emails per Sharon’s instructions rather than the planner (Father).

38. After the filing of the 51A Sharon believes that Cole’s behaviors escalated (Seyller). On November 2, 2004 Mr. Montrose informed Ms. Seyller that Cole was acting out and not doing his work. On November 3, 2004 Mother was called because Cole had shut down and was refusing to do any work. Cole was given an option to go home and he left school midmorning (Father, Seyller, S52). DSS came to the home that night to investigate the 51A report (Seyller, Father).11 On November 4, 2004 Cole had a meltdown in the Learning Center. Mr. Montrose speculated that he would not do well on the science test because he refused to do the review (P39). Ms. Seyller did not know about the incident and did not tell Parents about it (Father, Seyller).

39. Father and Ms. Seyller spoke on November 5, 2004 to strategize about how to deal with Cole’s refusal to do work. Father told her that Cole needs alternatives and choices and suggested that Ms. Seyller speak to Cole’s 5 th grade teacher. Ms. Seyller also spoke to Cole’s 6 th grade teachers who talked about redirecting Cole, expecting him to do work but providing him with alternatives (Father, Seyller).

40. On Tuesday, November 8, 2004, Mr. Montrose reported to Middle School staff that Cole put his head down on his desk and refused to do any work in academic lab (P37). Ms. Seyller does not remember being told about this incident and did not tell Parents about this (Father, Seyller). On November 9, 2004 Cole wrote in class “…My favorit (sic) thing to do is to tick off my dad. Life right now is the best way to live” (P36).

41. On November 9, 2004, Father met with the Special Education Director Arlene Grubert, Ms. Seyller and the Assistant Principal Mr. Kellett to talk about the personality clash that was occurring between Cole and the aide (Father, Grubert). He also gave Ms. Seyller the release so that Sharon could speak to Dr. Bruno-Golden (Seyller, S52). Father told Ms. Grubert, Ms. Seyller, and Mr. Kellett that Cole would be going to the Hillside School in January 2005 and that this could impact Cole’s performance (Father). Ms. Grubert told Father that Hillside was not a TEAM decision and Father told her that he understood and that Parents were doing it privately on their own (Grubert). Father did not ask Sharon to fund an out of district program for Cole (Father). Ms. Grubert talked to Cole’s teachers who confirmed that Cole had told them about Hillside and that Cole’s performance had dropped. Ms. Grubert also talked to the school psychologist Kathy Fenton about conducting a Functional Behavioral Assessment (FBA). Ms. Fenton and Ms. Grubert also spoke about bringing in their in-district clinical psychiatrist Naami Turk (Grubert). These options were not conveyed to Parents; see (Father, Grubert).

42. On Thursday, November 10, 2004, Father was called and asked to pick Cole up after Cole threw a chair and threatened to blow up the school. The Principal told Father that Cole could not return to school until he had had a safety evaluation (Father). Father told the Principal that Cole’s cognitive therapist would conduct the evaluation (Father). While waiting for Father, the school counselor met with Cole who appeared to be in a good mood and told her that he did not mean it (S52, Fenton). Although Sharon had both safety and behavioral concerns about Cole regarding this incident and the school psychologist and special education director had talked about conducting a functional behavioral assessment, one was not done (Seyller).

43. During November 2004 Cole’s behavior at home worsened with daily bouts of yelling and constant screaming and complaining. Although Cole was allowed to go off with friends on his own, during November, as he had done previously, Cole took off for about an hour at a time not telling Parents of his whereabouts coming home when he wanted to. Parents felt that they could barely control Cole and feared for what would have happened if he had stayed in Sharon (Father).

44. Parents began investigating the Hillside School as a possible placement in November 2004. Parents and Cole went to an Open House on November 13, 2004. Parents originally thought that they would place Cole there in January 2005 (Father).

45. Dr. Bruno-Golden conducted the evaluation on November 10, 2004 and sent Sharon her evaluation on Monday, November 15, 2004 (S8). Dr. Bruno-Golden told Sharon that she believed that Cole could return to school but that Sharon should contact Dr. Bruno-Golden to obtain better insight into Cole’s outburst. She told Sharon that Cole’s outburst was a result of depression and/or anxiety that stemmed from failure or fear of failure. She recommended that the Sharon staff provide Cole with a therapeutic approach that emphasized the positive with flexibility from the aide to provide the emotional support necessary for Cole to complete his work (S8). Dr. Bruno-Golden did not provide any details regarding how this could be accomplished; see (S8). She did not recommend an out of district placement in her evaluation (Bruno-Golden).

46. Cole went for an interview at the Hillside School on November 15, 2004 (Father). He returned to school on November 16, 2004 pursuant to the safety evaluation. The TEAM did not reconvene to consider the evaluation (Father, Grubert). Cole went home mid-day because he fell asleep in school, telling school staff that he didn’t sleep well the night before (Father). This was not accurate (Father).

47. Ms. Seyller spoke with Dr. Bruno-Golden on November 17, 2004 (Seyller, S52). Dr. Bruno-Golden explained Cole’s brain injury and answered questions about how it impacted Cole’s learning and his interactions with staff and students (S52). She did not indicate that Cole was in any type of crisis, did not make any recommendations or suggestions for any changes in programming including a recommendation for an outside placement (Seyller, Bruno-Golden).

48. Cole’s progress report was drafted on November 19, 2004. The school psychologist Kathy Fenton noted that Cole was not making effective progress in his social goals because his absences and schedule conflicts have prevented him from attending a larger pragmatics group run by the school psychologist and the speech/language pathologist. She did note however that Cole did participate effectively in the social group he attended with another peer once a week (Fenton, S28). The special education teacher (Nancy Pearlstein) noted that Cole was meeting his IEP goals in organization, reading and writing but noted that Cole would be able to write a consistent paragraph with a topic, supporting details and a concluding sentence if he availed himself of the support services offered.12 Ms. Pearlstein also noted that organization continued to be difficult for Cole and that Cole had not completely caught up with his assignments despite Cole’s recording them in his planner and the aide emailing assignments to Parents at home (S28).

49. Parents also learned about November 19, 2004 that the aide, Jason Montrose, had resigned. When Parents asked about a replacement Sharon told them that they did not have an immediate replacement and would have to have a substitute until a permanent aide could be hired (Father, Grubert).

50. On November 23, 2004 Hillside sent Parents a letter accepting Cole for enrollment the following September (P71).13 Parents believing that Cole would not do well with a substitute along with their belief that Sharon’s plan of “tag-teaming” teachers to try to get Cole to do his work would not be effective asked that the Hillside School consider Cole for immediate enrollment (Father, see also Seyller). Although Parents investigated the day program they chose to place Cole in the residential program because Hillside, in its residential program, offers a supervised homework period and offers more community experience to practice social pragmatics. Boys that attend Hillside’s day program are not as successful (Father, see also Stevens). Parents did not ask Sharon for funding for an out of district day or residential placement and wanted Cole to remain enrolled in Sharon until January 2005 because Hillside did not know if the placement would work (Father, see P58).

51. Cole’s last day at Sharon was on November 30, 2004 (Seyller, Father, S52). He began attending Hillside, a non-766 approved school, on December 2, 2004 (Father, see P58). Hillside is a five-day a week, day and residential school for boys through 8 th grade; see Father, (P73). It does not have a summer program or therapeutic services (Father, Stevens). Hillside provides academics in small classes and also offers tutorials in math, language arts, social skills and organization for up to four 50-minute periods per week (S73, see Stevens). In 6 th grade Cole had two periods of language tutorial twice a week; see (P70). He also took Language Arts. Geography, Math, Science Explorer II and Music in the winter term and a Farm course in the spring (S70, see Father).

52. Cole’s first two weeks transitioning to Hillside were rocky because Cole had a difficult time being away from home. However Hillside was supportive, and after this transition period Parents felt that Cole blossomed (Father). During the winter term Cole received an A- in his mixed fifth/sixth grade math class where he studied estimation of whole numbers and decimals and multiplication. He consistently turned in his homework on time and did well on tests and quizzes. However in language arts, even though he received a B, Cole’s effort and performance were inconsistent struggling in homework with concepts that he achieved in class and was unable to manage his time well on a long-term project. Cole received a C in geography during the winter term. The teacher noted that Cole’s effort on homework and studying for tests was inconsistent, with low grades on tests and several late assignments. The teacher noted that she hoped to see Cole use his study hall time more wisely so that his homework would reflect his ability. Similarly, the science teacher noted that Cole was a bit overwhelmed when he began his class, was slow to turn in some assignments and did not study as much as he should have. He did note that Cole improved toward the end of the semester, and therefore gave him a B- in the class (P69).

53. During the spring term Cole dropped from an A- to a B in math because he made careless errors on tests, but was able to continue to do well on homework and class work and asked for help when he needed it. In Language Arts Cole’s grade dropped from a B to a B-, however the teacher noted that Cole showed marked improvement that term showing improvement in the neatness and timeliness of his work. She also noted that Cole increased his class participation, wrote creative essays, studied hard for tests and was open to suggestions for improvement (P68). He did well in Science raising his grade from a B- to an A-, raised his grade from a B- to a B+ in geography completing all his homework. He also made steady improvement in his language tutorial. Cole’s end of the year grades were a B in Language Arts, a B- in Geography, a B+ in Math, a B in Science and an A+ in his Farm course earning him Honor roll status for the year (P68, P74). Cole also received a Coaches award for participation in the Farm program and awards for nonacademic participation at Hillside including, participation in classes, study hall and at meals (Father, P68, P69, P74). This was the first time that Cole had achieved award recognition in a school setting and his self esteem improved. Cole’s interactions during the weekends were good with no meltdowns during the sixth grade (Father).

54. Sharon contacted Parents in May 2005 to schedule a TEAM meeting because Cole’s IEP was to expire on June 15, 2005 (Grubert, see (S5). The TEAM reconvened on June 23, 2005 to accommodate Parents’ schedule (Grubert). Parents informed Sharon that they felt that Cole’s 6 th grade IEP had failed him (Grubert). The TEAM discussed a number of programs at the Sharon Middle School including the Language-based program and the Middle School’s Team-based program. Parents were told that the Team-based program at Sharon Middle School had received approval in the spring 2005 and would be getting started in the fall of 2005 and would complement the elementary and high school programs that were already in existence (Grubert). However, at the meeting the protocol for the program was still being developed and a teacher had not yet been hired (Grubert). There was no discussion of an aide at the meeting (Father). Father asked for information about the program in writing. Ms. Grubert told Parents that the information was not yet available but that she would be working on the protocol over the summer and that Parents would have written information as soon as it was available (Grubert). Parents informed Sharon about the positive experiences Cole had had at Hillside especially in the Farm program, a program that could not be duplicated in Sharon (Grubert). Parents orally requested that Sharon fund the Hillside placement and informed Sharon that Cole would return to Hillside in the fall unless Sharon could guarantee the same successful experience that Cole had at Hillside (Grubert, Father). Sharon proposed additional testing in reading and math to develop appropriate goals and objectives and presented Parents with consent forms for testing and proposed having a meeting in September to discuss placement (Father, Grubert, P4).

55. On or about June 25, 2005, Sharon sent Parents an IEP that designated a partial inclusion program with consultation, academic support in the classroom for three periods per week and academic support in a special education setting three periods per week and daily organizational support and a session with the school psychologist once per week period. However, the setting where these services would be implemented was not designated because the Team-based program had not been developed and as such placement had not been determined (Grubert, see P4, Father). Although the Parties agreed to have an additional TEAM meeting to discuss placement, Sharon did not schedule a date at that time (Grubert).

56. Sharon began scheduling the TEAM meeting in August, hoping to reconvene the TEAM around Labor Day (Grubert). The TEAM reconvened on September 14, 2005 to accommodate Parents’ schedule (Grubert). At this meeting the TEAM discussed placement for Cole and handed Parents a draft of the description f or TEAM-based Learning program for the Middle School created on September 12, 2005 (Grubert, Father, see P56). Test results were not discussed because Parents had not returned the consent forms at that time (Father, Grubert). Parents rejected the plan at the beginning of the meeting prior to any programs being discussed14 (Grubert).

Sharon described three models at the middle school: These models were services in the resource room, the alternative learning program, and the TEAM-based learning program (TBL). Both the Language-based and TBL teachers were present at the meeting (Grubert). The TEAM decided that the resource room would not be appropriate for Cole because that teacher had 25-30 students on her caseload and could not provide the close supervision that Cole required. (Grubert). The alternative learning language-based program had about 15 to 17 students. Sharon believed that TBL program would be the best fit because it had the smallest teacher-student ratio (with Cole being the third student in the program), and the TEAM-based teacher would provide the coordination between the regular education teachers, the home and the school and would carefully monitor and provide support for organizational and homework issues. The TBL teacher would conduct an FBA and provide the therapeutic component and the behavioral support that Cole required. If Cole were placed in the TBL program he would have at least one period every day where he would meet with the teacher to work on organization. Cole would also work on organization in his TBL homeroom in the morning and afternoon where he would go over his daily schedule and assignments with the TBL teacher. The TBL teacher would also go over any assignments that may be missing and Cole and the TBL teacher would discuss how to get organized for his classes and how to plan out his day. Cole would also have access to the TBL homeroom and the TBL teacher throughout the day if he had difficulty or needed therapeutic support. Cole would also have the opportunity to have a typical middle school schedule with assistants that would provide support in organization, academics and attention in class for him and other students who may require assistance. At the end of the day the TBL teacher would help Cole preview and review and plan and get organized for the night’s homework, and would communicate with the parents via the student planner and/or phone. The TBL program was not explained in much detail in June because it was still in development but at the September meeting each program was highlighted and the Sharon staff talked about how each program could be implemented (Grubert). The IEP indicated that Cole’s IEP would be implemented in the TBL program with support from the Language-based program (S1). Although Cole had began Hillside as a 7 th grade student and did not transition well, the TEAM did not discuss a transition plan and one was not delineated in the IEP; see (S1). Although Sharon recommended that Cole receive assistance in the regular education classroom, no aide was proposed in the IEP because Sharon believed it would be stigmatizing to a middle school student to have an aide (Grubert). However, this meant that if funding no longer existed for a classroom assistant, the position would be terminated (Grubert).

57. Cole returned to Hillside for 7 th grade (05-06 SY). During 7 th grade Cole took English, US History I, General Math, Science Explorer III, Latin and Leadership (P64, P66). He also received an organizational tutorial that focused on ensuring that his materials were in order and well maintained. The tutorial also focused on study skills such as note taking, test preparation and outlining (P64). The 6 th grade at Hillside more closely mirrors an elementary school model while the 7 th grade follows a middle school model (Father, Stevens).

58. On October 13, 2005 Parents were sent a letter that informed them that Cole was receiving midterm warnings because his average was below a C- (P63). Cole’s English teacher noted that at midterm Cole was receiving a D because his homework was often incomplete, despite an opportunity to do it in the organizational tutorial. He was also having trouble with tests and class participation (P64). He refused to do any work in Latin and was receiving a D+/C- in class (P64). Cole’s History teacher also noted that Cole had begun the semester well but had started to shut down as the work became harder, but after the History teacher began working with Parents Cole was able to receive a 92 on a test and had pulled himself up to a B- in class (P64). In Science Cole did well on homework and class assignments but received a C+ because he was unprepared for tests (P64). He also received a C+ in Leadership because he had difficulty with the end of the term project and his lack of motivation even when support and direct help was provided (P64). As of November 2005 Cole’s first trimester grades were a “D” in English, a “B-“ in US History I, a “B+” in General Math, a “C+” in Science Explorer III, a “C-“ in Latin and a “C+” in Leadership (P64).

59. By agreement of the Parties, Cole was reevaluated at Sharon during his Thanksgiving break from Hillside (Grubert). The TEAM reconvened on January 9, 2006 to discuss the results of the testing and develop a new IEP (P3). The TEAM developed a partial IEP and an extended evaluation because it was waiting for additional information from Hillside and Parents including a classroom teacher assessment, parent and teacher rating scales and an in class observation (Grubert, Fenton, P3). The partial IEP remained the same as the IEP proposed in June and September 2005, except for the elimination of the weekly session with the school psychologist; compare (P3, P4).

60. Parents filed a Hearing request with the BSEA on December 14, 2005; see Hearing Request. The matter was assigned to Hearing Officer Figueroa. A resolution session, held in February15 was unsuccessful (Grubert).

61. On January 22, 2005 Sharon’s school psychologist Kathy Fenton conducted psychological testing. On the WISC-IV Cole’s cognitive ability was in the average range (P10). However, testing showed that Cole’s visual memory, motor speed and visual attention skills were in the low average range (27 th percentile). Because of this Ms. Fenton concluded that Cole might have less time and mental energy when trying to understand new material (P10). Parents’ scores on behavioral rating scales (BASC) showed Clinically Significant scores for hyperactivity, conduct problems, anxiety and depression and At Risk scores in aggression, somatization (the tendency to be overly sensitive), Atypicality, Withdrawal, Attention, Adaptability and ADL skills (P10, Fenton). Sharon also asked Hillside to complete BASC ratings. Conversely, to Parents, the Hillside teachers observed no behaviors in the Clinically significant range and the only notable score for At Risk behavior was in Attention, with all other scores in the typical/average range for a boy Cole’s age. Cole’s scores on the BASC showed no scores in the Clinically Significant range with At Risk scores in Sensation Seeking (risk taking behavior), Atypicality, Somatization, and Attention, with all other behaviors in the average range (P10, Fenton). He established easy rapport with Ms. Fenton telling her that he liked school because he got to be with his friends more often. When asked who his friends were Cole named many boys and girls from school and from his neighborhood. He told Ms. Fenton that the worst part of school was homework but that he thinks the work is easy at Hillside except for the foreign language classes (P10).

62. Ms. Fenton observed Cole at Hillside on March 6, 2006 for about two hours (Fenton, P10).16 Ms. Fenton first observed Cole’s English class. That class contained eleven boys and one teacher (P10, see also Stevens). This class (as others in Hillside) was arranged in a horseshoe shape so that everyone could see each other; Id. During English class Cole volunteered eight times. However Ms. Fenton also noticed that Cole initially did not have a pen or pencil to take notes or correct his own study guide. Cole was however, when homework was assigned, independently able to copy the homework from the board into his planner. In Cole’s math class of seven students, Cole was able to follow the instruction and volunteered four times (P10).

63. In March 2006 Cole received his winter term grades at Hillside (P64A). Cole worked well in his organizational tutorial; however his teachers also indicated that Cole has a tendency not to initiate or complete pending assignments or upcoming tests or projects. His tutorial teachers indicated that if Cole could “see the bigger picture” and work on planning ahead he would stay off the Late Work list and be able to work independently more frequently (P64A). He received a C- in English because of late homework that contributed to his failing marks on his exam. Cole’s History teacher gave him a C- (71) in that class because he did not try, despite being capable, and received a D+ on his exam because he did not prepare for it (P64A). Cole’s math grade was incomplete because he did not complete his study guide or a required exam; Id. However in science Cole was able to complete all of his homework assignments but received a B- because he received a D+ on his exam. Cole received an A- in French because he was an enthusiastic participant and displayed good effort in his homework and class projects even though he struggled with comprehension of many of the topics covered in class. He also received a B+ in Studio Art getting along well with and helping his peers and displaying confidence when working on his projects. The Art teacher did however note that Cole tended to shut down when discussing his work and had difficulty accepting constructive criticism (P64A).

64. On March 25, 2006 Sharon informed Parents that Cole needed to take the MCAS examinations if he remained enrolled in Sharon. Cole did not take the MCAS (P78).

65. On April 10, 2006 the TEAM reconvened to discuss the results of the speech/language pragmatics assessment that Sharon’s speech/language pathologist (SLP) conducted in March 2006 (P1). The assessment was conducted without speaking or evaluating Cole because he was at Hillside and Hillside would not allow the SLP or other Sharon staff to have any contact with them (Grubert, Fenton).17 Therefore the FBA that Cole would have received if he remained in Sharon was not asked for (Grubert).

66. Parents hired Marsha Stevens18 in April 2006 to review Cole’s records and observe Hillside and Sharon’s proposed programs in preparation for a hearing scheduled for May 2, 3, 4, 2006.19 Ms. Stevens first spoke to Parents and reviewed Cole’s records.20 Ms., Stevens then went to visit Hillside. Ms. Stevens observed Cole at lunch appropriately interacting in discussion and serving lunch (Stevens). She next observed Cole in his English class of ten boys and a teacher; Id . When at one occasion Cole began to shut down and began scribbling Cole was told “that was a tough one for you. We’ll work on it later” (Stevens). Ms. Stevens then observed Cole working well in a group computer lab project and then unobtrusively21 walked with Cole to his math class and learned that Cole liked Hillside “a billion times better than Sharon” because he liked the people, had a sense of community and felt he was learning. The math class was a grade adjusted (5 th /6 th ) class with five boys and one teacher. The class was working on a 5 th grade level on ratios and Cole understood the concept (Stevens). Ms. Stevens then talked to Cole’s organization tutors and the administrator and learned that Cole struggled with organization, and as of April 2006 still continued to struggle with homework, as well as attending in class and completing assignments but that he benefited from the Farm program and the organizational tutorial where all his materials were put into a binder in a specific place by subject, was taught time management, prioritizing and breaking down of long term assignments. Ms. Stevens also learned that there was communication between the day and residential program that she felt benefited Cole because when needed Cole was put in a supervised study hall and was becoming part of a community in the dorm (Stevens).

67. Ms. Steven’s contacted Sharon on April 25, 2006 to see if she could come to observe Sharon’s program on April 28, 2006 (Grubert, Stevens). There was no further discussion regarding what Ms. Stevens wanted to see (Grubert, Stevens).

68. Ms. Stevens observed Sharon’s proposed program on April 28, 2006 (Stevens). Ms. Grubert took Ms. Stevens to the room that Cole would have his TBL homeroom at the beginning and end of the day and where Cole would go if he needed to access the room during the day. Ms. Stevens received the draft protocol for the TBL program but did not receive other material such as a curriculum (Stevens). Ms. Stevens did not get to meet the TBL long-term substitute teacher because she was teaching language arts to 8 th graders (Grubert).22 This TBL teacher would not have been the same teacher that Cole would have had at the beginning of the year because that teacher was on maternity leave (Grubert). If Cole had needed to access the TBL room during that period of the day or another period when the TBL teacher was not in the room the class that the TBL teacher was teaching would be attended to by the assistants and Cole and the TBL teacher would have gone to the TBL room to do any therapeutic processing needed (Grubert). However, the TBL teacher was not made available the day of Ms. Stevens visit to talk to her (Stevens, Grubert). Ms. Grubert also did not honor Ms. Steven’s request for redacted IEPs or the schedules of the two other children in the TBL program because Ms. Grubert did not know that Ms. Stevens would want them and therefore their schedules were not readily available (Grubert). Ms. Stevens did not request, nor did Ms. Grubert offer, to send these IEPs or schedules at a later date (Stevens, Grubert). Nor did Ms. Stevens request, nor did Ms. Grubert offer Ms. Stevens an opportunity to talk to other staff that Cole would interact with if he were in the program (Stevens). Ms. Stevens also did not have the opportunity to observe the other two students in the TBL program in their homeroom or in their inclusion settings which would have been helpful to help her form an opinion regarding the appropriateness of the program (Stevens, see also Turk) Ms. Stevens observed a language lesson in the language-based program that would have been inappropriate for Cole because the pace was at a 4 th grade level and as such too slow for Cole (Stevens). She did not get to see any of Cole’s proposed classes because Sharon did not develop a schedule for him because Cole was not there (Grubert, Stevens).

69. Sharon’s in-district psychologist consultant Naami Turk23 became involved in this matter in April 2006 (Turk). Dr. Turk consults to Sharon approximately 15 hours a week. Although Dr. Turk is usually there 2 ½ days a week she has the flexibility to be available throughout the week if a need arises (Turk). Dr. Turk becomes involved in a matter when contacted by school staff (Turk). She was not contacted prior to Cole’s departure from Sharon on November 30, 2004 and has neither met nor observed Cole because consent was not given to do so (Turk). On other occasions Dr. Turk is contacted when a situation is acute, school staff has tried other interventions for a four to six week period and the strategies are not working at least 50% of the time and/or a student is regressing over an extended period of time (Turk). Dr. Turk provides consultation to the school psychologist, guidance counselor, regular education and special education teachers and instructional aides and to parents regarding behavioral interventions where home issues affect a child’s ability to learn and where school issues affect a child’s interaction in the home (Turk). Dr. Turk will also observe a student if needed and has directly worked with school staff and parents to conduct functional behavioral assessments (FBA) and helped develop behavioral intervention plans (BIP) when needed (Turk).

70. If Dr. Turk were asked to be a consultant for Cole she would start by speaking to Cole’s parents, and the school personnel and professionals working with Cole and observe him on different days to get a good sampling of how he is behaving in high and low structure situations, in situations where there was an opportunity for social interaction and in both high and low stimulation areas, to get a good sense of how Cole was functioning in a variety of situations (Turk). Dr. Turk would look at specific areas of concern along with Cole’s social interactions, his capacity to transition, his behavior and his capacity to move himself throughout the academic portion of the day. Dr. Turk would also conduct an FBA and if needed put a Behavioral Intervention Plan (BIP) in place (Turk).

71. Dr. Turk does not know with certainty whether Cole’s behavior would have continued to the point where he would have required the TBL program or whether with intervention Cole would have been successful. She does feel however if Cole’s behaviors had continued, then the TBL Middle School program would be appropriate for Cole because it provides students with challenging behaviors, (including refusal to do work), an opportunity to be included with and model typical peers and have access to special education teachers trained in custom tailoring strategies and interventions so that he could transition throughout the day and still receive a high level of academics commensurate with his cognitive level; see (Turk). The TBL program would also be appropriate because it would infuse social pragmatics throughout the day and provide a sense of community between Cole and his TBL teacher and between Cole and the other two 7 th graders in the program when they met at the beginning and end of the day to structure and process their day (Turk). If Cole were in the TBL program there would be frequent outreach and communication between the staff, parents and outside providers. This outreach and communication would be important because students with executive functioning disorder often do not communicate the whole picture, misperceive events or cannot discern the whole picture from the salient details (Turk).

72. If Cole were to enter the program, he would, like other students transitioning into TBL, have the TEAM develop a transition plan which would involve the TBL teacher and other special education staff observing Cole in his current setting in a variety of situations, having those teachers speak with teachers and collateral providers and perhaps reviewing current medications and outside testing. Students who transition into the program often have a slow, gradual transition, sometimes on modified schedules, sometimes with fading from a teacher or parent and/or multiple visits giving the student an opportunity for positive social interaction and successful academic experiences (Turk). It may also be important to conduct an FBA in the setting the student is in and modify it to the current setting to develop an appropriate behavioral intervention plan (BIP). It would also be important as part of the transition and in Cole’s plan to discuss effective accommodations to assist in organization such as graphic organizers, having a teacher or an assistant review with Cole the materials he needs to bring home and check and double-check his assignment planner and provide backup of home/school communication around homework assignments. Cole’s plan should also include accommodations such as chunking and chaining both short-term and long-term assignments, teaching of note-taking strategies and teaching of strategies for listening, translating and identifying salient facts. Dr. Turk also believes that keyboarding would be beneficial for Cole24 (Turk). In addition, Sharon staff could assist Parents in reapplying for DMH services because DMH may be able to assist Parents with parent training and guidance, some strategizing around restraint systems including what language to use, and/or some other services (Turk).

73. Since Cole began attending Hillside Dr. Bruno-Golden has been involved with Cole and his family on an on-call basis. Dr. Bruno-Golden has not been involved with Sharon as part of his TEAM and has not seen any school programs in Sharon or at Hillside because she feels that it is inconsistent with her role as a therapist for the family (Bruno-Golden).

74. Cole ended the year at Hillside with an A+ in Music, a B+ in Math and a C+ in Science. However Cole received a D in Spanish because he was distracted by the people around him. He also received a D in History despite a contract between Cole and Mother because Cole had trouble following through and preparing for class; Id. He failed English; Id. His final report card indicated that Cole had a tough semester juggling the academic demands of Hillside and being respectful to peers and family and that there have been several incidents where Cole has told inaccurate stories to his classmates or to his teachers and his coaches (P64A). Cole’s tutorial teachers noted that Cole displayed ups and downs in his organizational tutorial. He took solid notes when memorizing vocabulary or studying for a test or when orally quizzed, but made excuses for not completing assignments and by the end of the year was reluctant to prepare for and study for his finals independently (P64A). The Tutorial teacher indicated that if Cole could learn how not to be distracted by the negative behaviors or attitudes of others and if his work effort and effort in Tutorial would improve he could have better organization and be a better student overall; Id .

FINDINGS AND CONCLUSIONS

At issue is whether the programs and services that Sharon offered to Cole at the Sharon Middle School in 6 th and 7 th grade provided Cole with a free appropriate public education (FAPE) in the least restrictive environment (LRE). If not, are Parents entitled to reimbursement at Hillside for Sharon’s denial of FAPE? A subsidiary issue is whether, in the event Cole does require residential services, those residential services are needed for educational reasons.

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).

FAPE also entails complying with the procedural requirements of the IDEA. A school district that violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA”).

The law also requires that the school district implement all accepted elements of the IEP without delay once a parent accepts the IEP; see 603 CMR 28.05(7)(b). The First Circuit has indicated that noncompliance that affects the provision of an educational benefit amounts to a denial of FAPE. Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990), see also W.G. v. Board of Trustees of Target Range School District , 960 F.2d 1479(9th Cir. 1992), Green County Board of Education , 102 LRP 39656 (Alabama Department of Education 2002), see also Houston Independent School District v. Bobby R. , 200 F.3d 341,349 (5th Cir. 2000), Sioux City Community School District , 103 LRP 37969 (Iowa 2003) (failing to implement a substantial or significant provision of an IEP constitutes a denial of a free and appropriate public education).

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 of 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.

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 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).

Here, Parents ask for a finding that Cole requires an IEP that designates a residential program. 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).

After careful review of the testimony and documents presented in this case the record is clear that Cole, at this time, requires a coordinated and highly structured therapeutic academic program that addresses his executive functioning deficits and associated anxiety, 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.

The evidence shows that Cole’s 6 th grade IEP was inappropriate. Although Cole experienced success in the TBL program in 5 th grade Sharon did not offered TBL to Cole because TBL was not available at the middle school level. This IEP also eliminated consultation and reduced instructional support in the classroom and speech/language therapy services without evaluative information to support this service reduction.

Although Parents did accept the 6 th grade IEP, the IEP that was accepted was not fully implemented. Cole’s 6 th grade accepted IEP called for long-term assignments to be broken down, verification that homework was copied accurately, highlighting parts of the homework that were most appropriate, modification or reduction of homework if necessary, checking and organization of the homework planner by the instructional assistant and breaking down long-term assignments into smaller, more manageable parts. Sharon and Parents communicated frequently regarding homework and Cole’s homework was reduced or modified frequently; however, there were often discrepancies between what Cole was asked to copy down for homework in his planner, what his aide told Cole regarding what he was required to do and the emails to Parents regarding homework. The record shows that instructions in the planner were often unclear, long term assignments were not always broken down into smaller, manageable parts, homework was often not prioritized as required in his IEP and missing assignments were not always clarified despite effort by Sharon and Parents to address the problem. In addition, despite an agreed upon communication system developed at the October 21, 2004 TEAM meeting, Parents were not always informed of instances when Cole refused to do work. The evidence shows that Cole shut down as a result of this inconsistent implementation. Cole refused to do any work and by November 2004, he had not met the social emotional goals in his IEP. The evidence also shows that more likely than not, this inconsistent implementation would have continued due to the aide’s departure and no immediate trained replacement. As such, implementation issues denied Cole a FAPE.

Sharon also committed procedural violations in 6 th grade that in totality25 denied Cole a FAPE. For example, although Sharon required that Cole have a safety evaluation to address his threat to blow up the school prior to his reentry, Sharon did not conduct its own safety evaluation and did not reconvene the TEAM to consider the evaluation that it agreed Parents’ evaluator should do. Although this evaluation did not indicate that Cole required an out of district program, Dr. Bruno-Golden did recommend that the outburst occurred because Cole was depressed and/or anxious and that he required a therapeutic educational approach and instructional flexibility from his classroom assistant in order to complete his assignments. Because the TEAM did not reconvene, no revisions to Cole’s program occurred. I find that this was a procedural error that denied Cole a FAPE.

Sharon maintains that Cole began the 6 th grade school year well but that the issues Cole had in Sharon Middle School escalated after it filed the 51A and that Cole’s anxiety and shut down behaviors may have been exacerbated because he may have outgrown his dosage of Amantadine. Sharon also asserts that Cole’s performance dropped because he was not invested at the Sharon Middle School after he learned in November 2004 that he would soon be going to Hillside. Sharon further maintains that it was not given an opportunity to make changes in his program, that if Cole had stayed and his behavior had continued it would have conducted an FBA and brought in its consultant, Naami Turk.

Sharon’s arguments have merit. Cole would have benefited from an FBA and resulting Behavior Intervention Plan (BIP) if he had stayed in Sharon. In addition, Dr. Turk is a credible and impressive witness and Cole would have benefited if she were a consultant to his program. However, at the time of Cole’s removal, he was doing little to no work in school, was beginning to engage in the disrespectful and negative behavior he displayed at home and although not suicidal, was, due to anxiety, making statements such as “I want to die” and “I want to blow up the school”. Dr. Turk, as competent as she may be, would need time to conduct the FBA and develop the BIP and provide consultation to the teachers and family and would only begin to work with Cole when she received a referral from Sharon which may not have been immediate. It is also more likely than not that the program could not have been implemented because the TBL program was not running when Cole was in the 6 th grade and there would not have been a trained assistant to help Cole. As such, it was reasonable for Parents to seek alternatives to Cole’s then current program. Hillside is not an approved school and is not a therapeutic school; however, for Cole it did provide the respite he required to relieve his anxiety so that he could learn. Cole received A’s and B’s in all his sixth grade courses putting him on the Honor roll,26 received awards for participation in nonacademic events and had no meltdowns at home during 6 th grade. Therefore, for sixth grade, Parents’ unilateral placement of Cole at Hillside meets the standards for reimbursement established by the 1 st Circuit pursuant to Matthew J27 and reimbursement is warranted.

However, the equities do not lead to reimbursement for the residential portion of the program for sixth or for seventh grade. The last recommendation for a residential program for Cole was made in 2002. Dr. Bruno-Golden made this recommendation after seeing Cole for one month. Dr. Bruno-Golden has never seen any of Cole’s educational programs. The First Circuit has approved residential placements for students who need a comprehensive, 24-hour, highly structured special education program that would address a student’s social and behavioral needs in a consistent manner,” see David D. v. Dartmouth School Committee , 775 F. 2d 411 (1 st Cir. 1983). Cole in fact did not enter a residential program in 2002 but received a FAPE when he was placed in a therapeutic program that was coordinated between home and school. The evidence shows that Dr. Bruno-Golden made this recommendation because she feels that all persons with injury to the frontal lobe area will require a residential program at some period. Dr. Turk was credible that people with executive functioning disorders may behave differently depending on a variety of factors such as environment, genetic disposition, cognition, and any other coexisting physical or psychiatric disabilities. Parents placed Cole in the residential program at Hillside because of Dr. Bruno-Gulden’s recommendation and Hillside’s recommendation for residential because it is not as successful when children live at home. No documents were submitted providing any information regarding the residential program and no one from Hillside testified regarding any portion of the program. Parents placed Cole in the residential portion of Hillside to address homework issues; however, documentary evidence shows that Cole was not successful in completing homework, which caused a decline in his grades. Hillside’s failure to provide a coordinated day program does not constitute a rationale for residential placement. Furthermore, Cole’s placement in residential, in addition to not being the least restrictive environment for Cole, did not appropriately address all of his educational needs. Therefore, Parent’s request for reimbursement for the residential portion at Hillside for sixth and for seventh grade is denied.

Sharon also maintains that even if the evidence shows that Cole was not provided a FAPE in Sharon, Parents should not be reimbursed for Hillside in 6 th grade because they failed to provide notice prior to Cole attending Hillside, affirmatively indicated that Hillside would be a private placement, and had asked that Cole remain enrolled in Sharon until at least the first of the year. Cole remained enrolled in Sharon until at least March 2005.

In cases where a school district has not provided a FAPE to the student and reimbursement is warranted, reimbursement can be reduced or denied if the parents did not at the most recent TEAM meeting they attended prior to removing the child from the public school inform the TEAM that they were rejecting the proposed placement and intended to enroll the child in a private school at public expense; 20 USC § 1412(a)(10)(C)(iii)(I), (aa).

Or if:

Parents did not give written notice to the TEAM of their intent to remove the child and request reimbursement for a private placement within ten business days prior to removing the child from the school district; 20 USC § 1412(a)(10)(C)(iii)(I), (bb)

However, even if notice is not given reimbursement may not be reduced or denied if the parent is illiterate and cannot write English, if compliance with notice requirements would likely result in physical or serious emotional harm to the child, if the school prevented the parent from providing such notice or if the parents had not received notice of the notice requirements from the school district as part of their parental rights notification; see 20 U.S.C. s. 1412(a)(10)(C)(iii) (I-IV).

Parents did not give notice at the TEAM meeting on October 21, 2004 when they asked for a TEAM meeting because they were dissatisfied with Cole’s program and did not give written notice that they were removing Cole from Sharon until December 1, 2004, Cole’s first day of attendance at Hillside. Parents also did not ask Sharon for reimbursement at any time during his 6 th grade year and requested that Cole remain enrolled in Sharon. Parents are very literate people. Cole has been in special education for a number of years and there has never been any claim that Parents have not received Parents rights brochures with each IEP or that Sharon has in any way prevented parent from providing notice. Parents however claim that serious emotional harm would have occurred to Cole if they had given the required notice. This argument has been considered but has been rejected. Cole was experiencing increased anxiety as a result of issues at school and home. However, Dr. Bruno-Golden in her safety evaluation conducted on November 15, 2004 indicated that it was safe for Cole to return to school and at no time indicated to Sharon that Cole would suffer either physical or serious emotional harm. Parents were comfortable enough with Sharon that they wanted Cole to remain enrolled in Sharon so that he could come back if the Hillside placement did not work out. Further, Parents often communicated orally and in writing to Sharon about a number of issues and could have included their intent to remove Cole and request for reimbursement at Hillside in their communications. Therefore none of the exceptions apply and as such reimbursement may be reduced or denied.

Reimbursement, and reduction or denial of reimbursement, however, is an equitable remedy that is within the discretion of a Court or Hearing Officer to award or deny. Parents’ actions do merit consideration of a reduction of reimbursement; however, while Sharon did not receive written notice it knew that Parents had many concerns about Cole’s homework and school program in the IEP it accepted. Sharon also orally knew that Parents were looking at Hillside and that Cole believed he was going to go to Hillside that Sharon attributed to the decline in Cole’s performance. Even if Parents had provided the notice that they should have, it is more likely than not that the giving of such notice would not have resulted in an IEP that would have provided Cole with a FAPE given his increasing anxiety and transition time needed for a new aide to be trained and hired and for Dr. Turk to become involved in the matter. As such, Parent’s actions were not outcome determinative with respect to this procedural violation and therefore an order for reimbursement for the day portion of the Hillside program for seventh grade may be considered.28

The evidence shows that Sharon’s proposed IEPs for Cole’s 7 th grade year does not provide him with a FAPE in the LRE. While Parents were familiar with the Team Based Learning program (TBL) because Cole was successfully part of TBL in 4 th and 5 th grade, the June 2005 TEAM did not offer an IEP with TBL or any specific pull-out placement that coordinated with the partial inclusion program because TBL was still being developed for the middle school and would not be in place until September. In addition, despite undisputed evidence regarding Cole’s difficulty with change and transition there was no discussion regarding how Cole would transition to a program at the Middle School. Nor did Sharon schedule a definite date at the June TEAM meeting for further planning so that Cole could transition to the Middle School at the beginning of the school year if an appropriate IEP was developed.

The evidence also shows that the IEP developed in September 2005 still did not meet all of Cole’s special educational needs. Parents rejected Sharon’s proposals at the beginning of the September TEAM meeting and the evidence shows that they were not interested in accepting a program that was not Hillside because at that point Cole had good reports from the school, was having successful weekends when he came home, and had not done well in Sharon when he was at the Middle School in 6 th grade. However, Sharon has the obligation to provide an appropriate educational program. If an appropriate IEP were developed Parents would be responsible for funding Cole’s 7 th grade year at Hillside if they choose to keep him there. However, the IEP developed at the September TEAM meeting did not provide a FAPE to Cole. The TBL program was offered and would have provided Cole with the therapeutic support he needed, assistance with organization and appropriate peers. However, the TBL program was offered with support from the Language-based program. This program would not have been appropriate because the pace was too slow and the students in that program had more substantial needs than Cole. The IEP also did not offer a transition plan and although the TEAM agreed that Cole required an aide to make effective progress in his educational program no aide was listed on his IEP. Although Parents and Hillside did not provide information so that a full IEP could be developed after academic testing, making Sharon’s proposal for a partial IEP in November 2005 appropriate, that partial IEP still did not include a transition plan or an aide and eliminated the weekly session with the school psychologist despite no current evaluations supporting that change. The IEP developed after evaluations were completed was similarly inappropriate.

As such, Parents are entitled to reimbursement for the day program at Hillside if Cole’s 7 th grade program if the program was appropriately responsive to Cole’s special needs; see Matthew J. (supra). However, the evidence shows that Hillside is not appropriately responsive to Cole’s needs. Cole ended 7 th grade at Hillside failing English and receiving D’s in Spanish and History. In addition, Hillside was not able to adequately address Cole’s issues with homework completion and organization and as a result Cole is beginning to develop the same behavioral difficulties at Hillside that he displayed at home while he attended Sharon Middle School. There is no evidence that any therapeutic support has been provided to address these needs. As such, reimbursement for Hillside for Cole’s seventh grade year is denied.

The evidence shows that Cole would be successful in the TBL program with the weekly support from the school psychologist and the aide reinstated into the IEP, along with a TEAM developed transition plan and FBA and BIP with a coordinated program between home and school. The IEP also needs to include instruction in organizational skills including note taking, listening strategies, and other accommodations recommended by Dr. Turk. This is the appropriate program for Cole for the 8 th grade.

ORDER

Parents shall be reimbursed for the day portion at the Hillside school for 6 th grade. Parents’ request for reimbursement for Hillside for 7 th grade is denied. Parents’ request for reimbursement for the residential portion of Hillside for sixth and seventh grade is denied. Sharon will immediately reconvene the TEAM to develop an IEP for the TBL program with an aide and support from the school psychologist, consultation from Dr. Turk, an FBA and a transition plan.

By the Hearing Officer,


1

Cole is a pseudonym used for confidentiality and classification purposes in publicly available documents.


2

A second joint request for postponement was granted on July 25, 2006 and the time was extended to submit closing arguments because the full transcript was not received.


3

Parents are requesting reimbursement but are not requesting an IEP for prospective placement at Hillside.


4

An OT evaluation conducted through Health South in September 2000 confirmed Cole’s need for OT to address handwriting and sensory integration issues; see (P26). Speech and Language testing showed some word retrieval issues but average to above average language and speech skills see (P25). Cole also had Central Auditory Processing testing in July 2000 that showed borderline normal hearing but no evidence of a Central Auditory Processing disorder see (S27).


5

A person with an executive functioning disorder may display some or all of these behaviors and may have them in varying degrees. Persons with executive functioning disorders may behave differently depending on a variety of factors including but not limited to external environment, genetic disposition, cognition, and any other coexisting physical or psychiatric disabilities (Turk).


6

Mother and Father are trained in using physical restraint (Father).


7

Parents also asked for some revisions in the vision statement and two of the benchmarks; see (P8).


8

A discharge summary was not written until October 23, 2002.


9

Ms. Civiello wrote the evaluation on July 30, 2002. Sharon did not receive it until October 9, 2002 (S22).


10

Cole had had a good day in school the day before the appointment completing all his school assignments (S72 p.S357).


11

The 51A was screened out (Seyller). None of the Parties feel that abuse or neglect occurred.


12

The progress reports and the record is unclear regarding whether Cole was given instruction using a multisensory rule-based systematic approach; compare (S2, S29).


13

Parents were considering January admission. It is possible the letter did not contain accurate dates. However Cole entered Hillside in December 2004 and the letter with these dates does not substantively affect this decision


14

There is some disagreement regarding whether Father rejected the June IEP at the September meeting or whether Father was rejecting the September plan. Father did not specify at the meeting which plan or plans Parents were rejecting (Father, Grubert). Parents rejected the June IEP on September 14, 2005; see (S1).


15

On December 21, 2005 Sharon filed a statement that the Hearing request was insufficient and requested amended timelines. On January 9, 2005, Hearing Officer Figueroa deemed the request insufficient and set amended timelines based on an amended Hearing request of January 23, 2005; Sharon filed a second sufficiency challenge on February 1, 2006. That challenge was denied on February 6, 2006; see Record.


16

Father was also present during the observation (P10).


17

Similarly Hillside did not attend the hearing.


18

Marsha Stevens has been an educational consultant since 1973. The majority of her work is with Parents (Stevens, P73).


19

Hearing Officer Figueroa scheduled these hearing dates at a March 2, 2006 prehearing. On April 20, 2006 Sharon filed a request for postponement. The request was granted on April 21, 2006 because the Hearing Officer found that Parents responses to discovery were not timely. The hearing was rescheduled until June 12, 13, 15, 2006. The matter was reassigned to this Hearing Officer on June 9, 2006.


20

She did not review Cole’s 7 th grade Hillside records because they were not available at that time (Stevens, but see P64A indicating that Parents received Cole’s winter report card in March 2006).


21

Cole did not know that Ms. Stevens was observing him (Stevens).


22

Since the TBL teacher only had three students she had other teaching responsibilities but each of her classes contained assistants so the TBL teacher could leave if needed to help the TBL students process information if needed (Grubert).


23

Dr. Turk is a certified and licensed consulting clinical psychologist to Sharon and also to the Walpole Public Schools. Dr. Turk also has experience conducting testing, including FBAs, has coordinated and led social skills groups and has provided individual, family and group psychotherapy to children and adolescents and their families. Dr. Turk also currently teaches regarding psychological issues; see (S75).


24

Many of these accommodations are included in the proposed IEP. However the IEP for 8 th grade still needs to be developed. It would be important to include these accommodations in that IEP.


25

There were some technical procedural violations that did not deny Cole a FAPE. For example Sharon convened the TEAM at the end of 6 th grade one week after the IEP it developed for sixth grade expired. However, Sharon attempted to schedule the TEAM meeting before the IEP’s expiration


26

There was no evidence presented regarding whether or not Hillside met curriculum standards; however, Cole’s performance does meet the standards articulated in Matthew J .


27

Matthew J. v. Mass. Dept. of Education , 989 F. Supp 380 (D. Mass. 1998), citing 20 U.S.C. s. 1400(c).


28

If Parents’ actions were outcome determinative reimbursement may have been reduced.


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