Elizabeth and Boston Public Schools – BSEA #04-1509



<br /> Elizabeth and Boston Public Schools – BSEA #04-1509<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Elizabeth1 and Boston Public Schools BSEA # 04-1509

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under said statutes.

A hearing was held on May 27 and 28, 2004 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Heidi Haughey Educational Surrogate Parent for Student

Lyn Leslie Assistant to the Educational Surrogate Parent

Laurie Gaynor Clinical Social Worker, Kennedy Hope Academy

Jennifer Leighton Speech Language Pathologist, Kennedy Hope Academy

Rebecca Taylor Special Education Teacher, Kennedy Hope Academy

David Rourke Program Manager, Kennedy Hope Academy

Christine Stella Program Director, McKinley Schools

Barbara Oder Assistant Program Director, McKinley Schools

Ronda Goodale Literacy Coach, McKinley Schools

Mary Nee Special Education Teacher, McKinley Schools

Ann Kinnie Speech Language Pathologist, Boston Public Schools

Fran Doyle Education Team Facilitator, Boston Public Schools (BPS)

Jennifer Williams Assistant Program Director, BPS Unified Student Services

Kenneth Boatner Student Support Services, Boston Public Schools

Hyoseon Shim Social Worker, Department of Social Services

Michaelle Silva Department of Social Services (DSS) Supervisor

Jeffrey Heller Educational Specialist, DSS Consultant

Yvette Robinson Attorney for Boston Public Schools

Elizabeth Kurlan Litigation Director, Boston Public Schools

Andrea dos Santos Law Clerk, Boston Public Schools

The official record of the hearing consists of documents submitted by the Educational Surrogate Parent and marked as exhibits P-1 through P-5, and P-8 through P-12; documents submitted by the Boston Public Schools (Boston) and marked as exhibits S-1 through S-12; and approximately two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 14, 2004, and the record closed on that date.

INTRODUCTION

Student has been attending the Kennedy Hope Academy (Kennedy Hope), a residential placement, since July 9, 2002 through Department of Social Services (DSS) placement and funding. Boston’s individualized education program (IEP) proposes that Student be educated in its McKinley Schools, which is a day placement.

The parties have agreed that this dispute addresses only the question of prospective relief – that is, whether Boston’s proposed IEP placing Student at McKinley satisfies its current and continuing obligations to Student, or whether Boston must begin funding the residential placement at Kennedy Hope. DSS has been funding this placement to date.2

ISSUES

The issues to be decided in this case may be summarized as follows:

1. Is the IEP3 most recently proposed by Boston reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

2. If not, does Student require residential services to satisfy this standard?

3. If Student requires residential services, should this occur at Kennedy Hope?

POSITIONS OF THE PARTIES

Parent takes the position that Student requires continued placement at Kennedy Hope for at least a number of months before she would be ready to transfer to a less restrictive setting. She seeks a determination that Student’s special education placement should be Kennedy Hope and that Boston should therefore begin funding this placement.

Boston takes the position that Kennedy Hope is a more restrictive placement than is necessary in order to meet Student’s educational needs. Boston concedes that Student is not now ready to be re-united with her biological mother, but believes that an alternative living arrangement could be provided by the Department of Social Services (DSS), and that Student should attend the McKinley Schools as a day placement pursuant to Boston’s most recent IEP. Boston would provide door-to-door transportation between McKinley and Student’s DSS alternative living arrangement.

BOSTON’S PROPOSED IEP

Boston’s most recent IEP, for the period 1/04 to 1/05, proposes that Student attend Boston’s McKinley Schools, a substantially separate day program, where she would receive all of her special education and related services. Student’s related services would include counseling from guidance staff for 45 minutes, once per week; behavioral and social/emotional support from guidance staff for 25 minutes, five days per week; speech services for 45 minutes, twice per week; and daily special education instruction in her academic courses. The IEP includes goals relevant to her “social emotional skills” as well as her academic subjects. Exhibit S-1.

FACTS

Profile of Student .

1. Student is a thirteen-year-old girl (date of birth 6/27/90) who has many strengths, particularly with respect to her social skills and social awareness – she has an engaging personality and is able to establish rapport with people she does not know. Another strength is problem solving with the assistance of visual cues. Student has been diagnosed with post traumatic stress disorder (PTSD), mood disorder and mental retardation. She has particular deficits in expressive and receptive language. Her mood disorder includes frequent mood fluctuations, poor impulse control, visual and auditory hallucinations (including voices that tell her to kill herself) and suicidal ideations. Her PTSD diagnosis is related to the alleged physical abuse she endured from her mother. Also, the experience of being removed from her mother’s care is a source of considerable trauma for Student. Her most recent full scale IQ score places her within the Defective range, falling within the 1 st percentile compared to her chronological peers. Testimony of Boatner, Gaynor; exhibits P-10, S-1, S-3.

Department of Social Services Custody .

2. Student currently is within the custody of DSS and, as a result, has an educational surrogate parent (Heidi Haughey) who is responsible for making all educational decisions. After DSS took temporary custody of Student on several occasions beginning on March 26, 2001 and after several psychiatric hospitalizations, DSS physically removed Student from her mother’s home on October 16, 2001 and placed her in a foster group home. Student was later transferred to Pembroke Hospital, then to a residential assessment program and eventually placed at Kennedy Hope on July 9, 2002 when a bed became available. Testimony of Rourke; exhibit P-10.

Placement and Services at Kennedy Hope Academy .

3. Kennedy Hope is a 24-hour highly structured, 14-bed licensed residential educational program located at the Franciscan Hospital for Children in Brighton, Massachusetts. The program is designed to meet the needs of children and adolescents with a combination of emotional, behavioral and cognitive deficits. The program is staff secure at all times and during waking hours, there is a staffing ratio of one staff for two students. The living space and school space are adjoined by a hallway and are approximately 25 feet apart from each other. Testimony of Rourke, Gaynor; exhibit P-10.

4. Student attends approximately 5 ½ hours of classroom instruction each day at Kennedy Hope, working on a full academic curriculum which follows the Massachusetts Curriculum Frameworks. Multimodal teaching, positive reinforcements, consistency across all aspects of the day, functional academics, and one-on-one support are all considered necessary and are included as part of Student’s academic instruction. Although nearly 14 years old, Student is generally functionally academically at the 2 nd grade level. She is in a class of 6 children, aged 9 to 15 years old, who are at an academic level of pre-school through 3 rd grade. The class is taught by a certified special education teacher (Ms. Taylor) and 2 or 3 paraprofessionals, with the result that a significant amount of individual instruction and assistance is provided Student. Testimony of Taylor.

5. Ms. Taylor is supervised by the Kennedy Hope Director (Mr. Rourke). Mr. Rourke does not consider himself to be an expert regarding classroom instruction. Ms. Taylor had been supervised by someone with this expertise, but that person terminated his employment with Kennedy Hope in January 2004. Mr. Rourke has not yet been able to fill this position. Testimony of Rourke.

6. Ms. Taylor testified as to Student’s academic progress, explaining that Student has improved by at least one grade level in all her subjects since she arrived at Kennedy Hope. Ms. Taylor noted that Student has, in particular, made excellent progress regarding her comprehension when concrete language is used. Ms. Taylor also commented upon Student’s significant social progress (including use of language in a social context and development of social relationships), as seen within the classroom and the social pragmatics group. She also noted Student’s significant improvement in reading. Nevertheless, Ms. Taylor noted that Student easily misunderstands, particularly with respect to inferences and connotations, and Student’s continuing language deficits limit her ability to express her needs and her emotions.

7. The living and school components of Kennedy Hope function as a single program, with frequent and daily communication between residential and school staff, including feedback between the therapists and the living and school components of the program. When a concern regarding Student arises during therapy or within the classroom or at the residence, the concern is discussed with the residential and school staff and is addressed in a consistent, integrated manner throughout the program. Consequently, the program as a whole meets, discusses and addresses Student’s educational, social, emotional and behavioral issues so that all staff within the program are able to interact with and support Student in a consistent, therapeutic manner. Testimony of Gaynor, Rourke; exhibit P-10.

8. Residential staff perform functions within the school and teachers from the school perform functions in the residence, with their work integrated to provide consistent instruction and repetition. For example, Student has significant difficulty with her activities of daily living (ADL) skills – including changing her clothes, cleanliness, and appropriately addressing her menstrual cycle. In addition to the ADL group and instruction that address these issues in the classroom, a classroom teacher from the school helps Student with her morning routine at the living unit, including hygiene and assistance related to her menstrual cycle, in order to provide consistent, hands-on instruction regarding these skills. Similarly, a classroom teacher from the school helps Student with her ADLs in the living unit in the afternoon. As a result, there is consistent, frequent and interrelated instruction regarding ADL skills from the classroom and living components of the program. Student continues to need a significant amount of opportunities for practicing her ADL skills, with consistency, structure and (in particular) repetition. Testimony of Taylor, Gaynor.

9. Consistent individual rules and plans for Student are developed and integrated within all settings of the program. For example, the clinical staff working with Student at Kennedy Hope have significant concerns regarding communications and access by Student’s mother, and the impact (of these communications and access) upon Student’s social and emotional well-being. A single set of rules has been established and implemented in the living and school components of the program with respect to communication and access by Student’s mother. Testimony of Rourke, Gaynor; exhibit P-10.

10. Similarly, Student has a single, comprehensive behavior plan which is implemented within the residential and school components. When there are behavioral incidents in the classroom or living unit, they are discussed with all staff working with Student in order that her behavior plan can consistently address whatever happen to be her present behavioral needs. Also, all staff in each component of the program are trained to respond to a crisis, and to do so in a consistent manner. This provides a consistent therapeutic response to Student’s behavior discontrol. Testimony of Rourke, Gaynor; exhibits S-7, P-10.

11. While at Kennedy Hope, Student’s regressed, oppositional and (at times) unsafe behaviors have occurred in all contexts, including school, therapy and the living (or residential) unit. When Student becomes upset or stressed, there is a significant risk that she will harm herself or staff, and behavior problems are likely to develop. Student has assaulted staff and has required a significant amount of physical interventions (including restraint) by staff. She also has a history of trying to run away from the program when she becomes upset. These emotional and behavioral difficulties carry over to the school day and negatively impact upon her ability to learn. Testimony of Rourke, Gaynor; exhibits S-8, P-10.

12. In addressing her social and emotional concerns, Student utilizes her individual and family therapists on site, as well as the milieu staff in the living (residential) component of the program. Student has required more case management services than any other child at Kennedy Hope. Kennedy Hope provides extensive and intensive therapeutic support for Student, including individual therapy for 30 to 45 minutes twice per week, family therapy for an hour (or more) three times per week, and staff-assisted telephone communication between Student and her mother for 50 minutes twice per week. Student has access to a therapist at any other times when she has emotional difficulties. Testimony of Rourke, Gaynor; exhibit P-10.

13. The testimony of Kennedy Hope staff indicates that the behavioral and therapeutic supports at Kennedy Hope have allowed Student to make significant social, emotional and behavioral progress. For example, over the past few months, Student has required minimal physical interventions or restraints by staff. She has also made progress in her ability to stay with the group during field trips in the community, although she continues to need frequent reminders to stay with the group and to be safe in this context. Testimony of Rourke, Gaynor, Taylor; exhibits S-7, P-10.

14. In addition, Kennedy Hope staff testified that Student has made significant progress in her ability to recognize when she has a problem or frustration, and to express it verbally and ask for help from staff, rather than to act it out impulsively through maladaptive behavior. However, she is not able to do this independently. To be successful in this area, she continues to need a great deal of staff support through their monitoring, making inquiries of her, and even prodding her to process her concerns with staff when they notice that she may be upset. As a result, Student continues to have difficulty using her own resources to manage negative feelings and requires a great deal of external control and supports from the staff at Kennedy Hope. Testimony of Rourke, Gaynor; exhibits S-7, P-10.

15. Staff supervise and participate in all contact (including telephone calls) between Student and her mother because of Student’s continuing need for support and structure with this relationship. Mr. Rourke testified that when Student’s relationship with her mother is not being clearly and consistently controlled by staff, Student perceives this as an unsafe and uncontrolled environment; and she has a tendency to fall apart emotionally under these circumstances (including aggression, suicidality and running away) which also places her at risk of psychiatric hospitalization. Kennedy Hope has established clear communication rules for Student’s mother so that regardless of whether she calls the day or living components of the program, she speaks only with Mr. Rourke or one of Student’s therapists. Testimony of Rourke, Gaynor; exhibit P-10.

16. Kennedy Hope staff testified that a significant part of Student’s social and emotional progress relates to the work that has been done regarding her relationship with her mother. Student has progressed to the point of being able to negotiate conflict with her mother, and in general, to discuss with her therapists any issues that she may have that are related to her mother. Student was not able to do this when she first came to Kennedy Hope. Testimony of Rourke, Gaynor; exhibit P-10.

17. Student’s mother is extremely important to Student. Student needs to have her mother be a part of her life, and successfully addressing Student’s relationship with her mother is essential to Student’s continued social and emotional development and maturity. Mr. Rourke testified that if Student’s relationship with her mother were terminated, it would likely result in significant regression of Student’s social and emotional development and stability. Testimony of Rourke.

18. Because of Student’s cognitive deficits and expressive/receptive language difficulties, it is taking Student longer to address her social and emotional deficits. Kennedy Hope staff testified that significant therapeutic issues remain to be worked on. Most importantly, Student’s therapy has yet to address the issue of Student’s separation from her mother and why it occurred. It is predictable that Student will become upset, at least for a period of time, as these issues are explored in therapy. Student has not yet been emotionally secure enough to address these issues. Testimony of Gaynor.

19. Student receives individual speech language therapy for 30 minutes once or twice per week. The speech language pathologist (Ms. Leighton) is focusing on auditory comprehension and expressive language. Student has particularly pronounced deficits regarding receptive and expressive language, and these language deficits impact upon her ability to communicate her thoughts and feelings, as well as her social interactions with others. Student needs a significant amount of consistency, structure and (in particular) repetition in order to continue to make educational progress in this area. Testimony of Leighton; exhibit P-8.

20. Student attends many groups (with other students) at Kennedy Hope – for example, a social skills pragmatics group, a girls group that teaches hygiene and female development, a relaxation group, a drama group, a cooking group and an emotions group. Kennedy Hope staff testified that these activities are important in developing Student’s language and social abilities in a variety of settings with her peers. Student has made particular progress in developing good social relationships. Testimony of Leighton, Gaynor; exhibit P-10.

Boston’s Evaluations of Student .

21. Earlier this year, Boston completed a number of evaluations of Student. Boston referred Student to Kenneth Boatner, EdD, MPH, for a psychological evaluation . Dr. Boatner testified (and his report indicates) that the purpose of his evaluation was to determine Student’s current level of cognitive and academic functioning. He explained that currently and for the past 20 years he has been employed by Boston as a school psychologist.

22. Dr. Boatner testified that for purposes of evaluating Student, he visited the Franciscan Hospital for Children on January 22, 2004. He reviewed the records that he was provided (including previous testing, reports from Student’s therapists and Student’s psychosocial history), met and interviewed Student, and administered a battery of tests (described below). He explained that he has not spoken with Kennedy Hope staff about Student and has not observed Student within her classroom or living environment (although Student showed Dr. Boatner the room where she sleeps and Dr. Boatner observed Student interacting with an unidentified person). Dr. Boatner also attended a January 2004 IEP Team meeting regarding Student, during which Kennedy Hope staff discussed Student.

23. Dr. Boatner’s evaluation included the following testing and related components: Wechsler Intelligence Scale for Children – III (WISC-III), the Wide Range Achievement Test (WRAT), Writing Sample, Bender Gestalt Designs and an interview. Pursuant to the WISC-III, Dr. Boatner found Student’s full scale IQ to be within the Defective range, falling within the 1 st percentile, as compared to her chronological peers. Test results from the WRAT indicated that Student was functioning academically approximately five to six years below her chronological age. The Writing Sample exercise indicated that Student’s writing abilities are at the 2 nd grade level. The Bender Gestalt Designs revealed six distortion errors, suggesting weak motor planning ability. Testimony of Boatner; exhibit S-3.

24. Dr. Boatner testified that Student needs a great deal of emotional and academic support, but with this support, she has the capacity to be in a more mainstreamed environment than Kennedy Hope. He explained that a more mainstreamed environment would be healthier for Student since it would provide her with “more positive” peer role models. He opined that Student’s current placement has been detrimental because of its “homogeneous” setting, its isolation of Student and consequently Student’s lack of access to more typical students. He also testified that Student would benefit from an academic program that uses a phonological approach since language is a weakness for her.

25. Dr. Boatner made clear that his testimony was focused on Student’s needs only with respect to the portions of her program that occur during the school day.

26. Dr. Boatner testified that he is familiar with the McKinley Schools where Boston is proposing that Student be placed. He noted that he has knowledge of its curriculum and has visited the school. He testified that he believes that McKinley can provide Student with a comprehensive program that would include appropriate academic supports, needed social skills training and emotional and psychological support (including assistance with her relationship with her mother). He opined that the McKinley program would optimize Student’s personal and emotional development.

27. Dr. Boatner testified that he met with Student directly after a meeting between Student and her mother; and that based upon Student’s calm appearance, Dr. Boatner did not observe any evidence of the “acrimony” (in the mother-daughter relationship) which he noted in Student’s records. Dr. Boatner testified that while Student was with him, she showed no signs of stress. Dr. Boatner explained that he is not aware of what situations or stimuli create stress for Student, and he is not able to assess how Student responds to stress.

28. Dr. Boatner’s written report concludes with the following recommendations regarding Student’s placement and services:

A school placement should include a therapeutic component where [Student] can receive social skills training, a venue for her to discuss her emotional issues and to receive consistent supportive feedback. Given her mother is visible and demonstrates compassionate [sic] a parental component to counseling must be integrated into [Student’s] treatment plan. Ideally, the setting should consists [sic] of more positive peer role models and as [Student] acquires appropriate interactional skills, she should be mainstreamed into appropriate academic and non academic settings. Of course, this will not occur in the near future but it should be mounted as a paramount goal that the adults working with [Student] strive toward.

Exhibit S-3 (page 4).

29. Dr. Boatner testified that his reference in his report to a more mainstreamed setting for Student (second-to-last sentence in the above-quoted language) refers to a program such as the McKinley placement being proposed by Boston. Dr. Boatner also testified that he has not received any information regarding Student since January 2004 when he completed his evaluation and participated in a Team meeting.

30. Ann Kinnie, Boston’s speech language pathologist, conducted a speech language assessment of Student on January 12, 2004. The evaluation report noted that Ms. Kinnie’s test results are consistent with previous testing of Student in June 2002 and April 2003 when Student’s language skills were judged to be moderately to severely reduced. Ms. Kinnie recommended in her report that Student continue to receive speech language services for forty-five minutes, twice per week. Exhibit S-4.

31. Lynne Mendes administered the Woodcock Johnson III tests of achievement on January 23, 2004 The test results indicated that Student’s academic skills and fluency with academic tasks are generally within the very low range, with a low performance in basic reading skills and a very low performance in math calculation skills. Exhibit S-5.

32. Ms. Mindes also observed Student for two hours at the Franciscan Hospital for Children on January 23, 2004 as part of the Woodcock Johnson informal testing of Student. The report concludes that Student performed at a grade 2 level in language and reading tasks, and grade 2 to 3 in math related skills. Exhibit S-6.

33. Laura Davis, a Boston Behavioral Specialist , issued a report dated January 22, 2004, indicating that she spoke with Student’s teacher, therapist and social worker, visited her classroom and saw samples of Student’s work. The report states:

When [Student] is experiencing distress about a family member, or interactions with a staff person or other resident, she typically acts out behaviorally before she is able to communicate the source of her distress.

Exhibit S-7.

34. Ms. Davis’ report explains that Student becomes aggressive and unsafe, with some physical interventions by staff lasting one hour. Ms. Davis’ report notes that behavior plans at Kennedy Hope involve a consistent and therapeutic response, are implemented across all settings and have been successful in decreasing verbal agitation and physical outbursts. Exhibit S-7.

35. Ms. Davis’ report then states:

[Student] continues to have difficulty using her own inner resources to manage negative feelings and relies a great deal on external controls and supports. [Student], at this time, does not have the skills to work through the trauma connected with her escalations.

[Student’s] regressed, oppositional and at times, unsafe behaviors occur in all contexts of her environment. Although the frequency of outbursts has decreased the behaviors are still of great concern. Safety awareness and personal hygiene are also important components of her program. Community field trips require much supervision, at times, [Student] has to remain at the program due to escalations and unsafe behaviors.

Exhibit S-7.

36. In summary, Ms. Davis states in her report:

[Student] is a 13 year old student who presents with cognitive, behavioral, and emotional difficulties. Post Traumatic Stress has effected [Student’s] ability to control her emotions. Her inability to articulate abstract thoughts makes therapy a slow process. She has made emotional and social gains in a structured therapeutic environment with few transitions.

Exhibit S-7.

37. Corrina Cummings, OTR/L, conducted an occupational evaluation for Boston on January 14, 2004. The report did not find any need for occupational therapy to be provided Student. Ms. Cummings included the following in the summary and recommendations portion of her report:

[Student’s] major weakness appears to be related to her emotional state. Her behavioral difficulties significantly impact on classroom performance. [Student] is known to become tearful, withdrawn or oppositional when dealing with challenging situations.

Exhibit S-8.

Proposed Placement and Services at the McKinley Schools .

38. McKinley Schools (Boston’s proposed placement for Student) is a specialized, staff-secure program within the Boston Public Schools. McKinley serves Boston’s most severely disabled students (other than those who require a residential school). McKinley is designed to combine in one program the requisite academic services with the social, emotional and behavioral supports and structure needed by these students. Classrooms at McKinley include 8 to 12 students, a teacher and a paraprofessional. Therapeutic services at McKinley include guidance staff who meet regularly with students on an individual basis to review the student’s social and emotional goals, to coordinate with appropriate human service agencies (including DSS) and to otherwise ensure that the students’ social and emotional needs are being met. Boston contracts with Wediko Children’s Services to provide individual and family therapy as needed. Family counseling typically is a critical component of students’ services and helps provide consistency between home and school. Crisis intervention at McKinley is also available as needed, with all staff trained in the use of emergency restraint techniques. Testimony of Stella; exhibit S-11.

39. It is not unusual for students attending McKinley to be living some place other than with their biological parents – for example, students at McKinley sometimes live in hospitals, group homes or specialized foster homes. Regular communication (for example, through daily reports and journals, weekly meetings and telephone calls as needed) is provided between school and the student’s home or residence to provide consistency. For example, if the student had a behavioral incident at school, this would be communicated to his home or residence; and if the home or residence communicated such an incident to McKinley, guidance staff would be informed and would follow up with the student during the day. Door-to-door transportation with appropriate supervision is provided as necessary between a student’s residence/home and McKinley. Testimony of Stella; exhibit S-11.

40. More specifically with respect to the Student in this dispute, McKinley would offer a classroom with 10 other special needs students and a certified special education teacher and a paraprofessional. The other children in this particular classroom have a variety of cognitive and learning disabilities, including one child who is at Student’s cognitive level and one who is borderline mentally retarded. The classroom includes multimodal instruction, community and life skills development, social skills building, utilization of the SRA (Boston’s decoding program), and individual assistance and guidance as necessary. The current teacher (Ms. Nee) testified that after reviewing Student’s records, she believes that her classroom would be an appropriate placement for Student, and that within her classroom, Student would find an appropriate peer group and appropriate peer models.

41. Boston’s literacy coach at McKinley (Ronda Goodale, PhD) testified that she is familiar with Ms. Nee’s classroom and is aware of the cognitive and academic levels of the students. She opined that on the basis of her review of Student’s records (including testing of Student) and her familiarity with McKinley, she believes (1) that Student would have an appropriate peer group, including students with higher language skills who would provide good peer models for Student at McKinley (2) that McKinley would provide the social and emotional supports which she needs, and (3) that, in general, Student is the kind of person who would do well at McKinley.

42. Boston’s speech language pathologist (Ms. Kinnie) testified that after reviewing Student’s records, she believes that speech language services could be appropriately provided to Student at the McKinley placement.

43. Ms. Stella testified that on the basis of her review of Student’s records (including Student’s IEP and evaluations) and on the basis of listening to the testimony of the previous witnesses (Ms. Stella was the last witness in the Hearing), she opined that Student would need a structured, therapeutic living and academic program. She explained that the structured, therapeutic living (i.e., residential) part of the program should address Student’s social and emotional issues and should include staff who are able to work with Student regarding these deficits. Ms. Stella also testified that Student’s living program would need to work with Student regarding her activities of daily living (ADL) skills.

DISCUSSION

Introduction and Legal Standard .

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Neither her eligibility status nor her entitlement to FAPE is in dispute.

FAPE requires that the individualized education program (IEP) be tailored to address Student’s unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress in the least restrictive environment.7

The initial issue presented is whether the programming and specialized services embodied in Boston’s proposed IEP are consistent with this legal standard .

Boston’s Proposed Services During the School Day .

I will address the appropriateness of Boston’s IEP in two parts. In this section of the Decision, I will consider the IEP from the perspective of addressing Student’s services during the school day only . If the IEP is (or can be made) appropriate with respect to services during the school day, I will then turn to the question of whether it is sufficient to provide Student with services during the school day only or, conversely, whether residential services are required in order for the IEP to provide Student with a free appropriate public education (FAPE).

Through its IEP, Boston has proposed to provide all of Student’s special education and related services during the school day at the McKinley Schools. As set forth in greater detail above, McKinley provides a comprehensive program of special education and specialized services to address a student’s academic, social, emotional and behavioral needs. The program is intended to serve severely disabled students, some of whom are living in group homes or specialized foster homes, rather than with their biological parents. Testimony of Stella. See Facts, pars. # 38-42.

Through the testimony of the Kennedy Hope staff who visited and observed Student’s proposed classroom at McKinley, Parent has raised a concern regarding the appropriateness of the academic services at McKinley. Kennedy Hope staff doubted the appropriateness for Student of the book which was being studied in the class. Testimony of Taylor. McKinley staff, however, were persuasive that the curriculum would be appropriately modified for Student so that it would be at her academic level. Testimony of Nee. Parent has provided no other credible evidence indicating that the classroom instruction would be inappropriate for Student.

McKinley offers a wide variety of related services, directly through its staff and indirectly through a contract with Wediko. An obvious shortcoming of Boston’s IEP is the lack of any family therapy – a service essential to address current issues relative to the relationship between Student and her mother. Testimony of Gaynor. However, I am persuaded that Boston’s IEP could be modified to add this (and perhaps other) therapeutic services as needed through Boston’s contract with Wediko. Testimony of Stella. See Facts, par. # 38.

Boston’s IEP also does not address Student’s needs regarding her activity of daily living (ADL) skills. However, I find that the IEP could be amended to add services, as well as goals and objectives, to address Student’s needs in this area.

For these reasons, I find that with the addition of family therapy services and ADL services, Boston’s proposed IEP can provide the special education and related services which Student needs during the school day . This, however, does not answer the question of whether the IEP provides Student with FAPE. For Boston to prevail, I must further find that the IEP is appropriate without providing residential services to Student.

In General, the Need for a Residential Placement .

The essential issue in dispute therefore becomes whether it is sufficient for Student to receive only a day program at McKinley, as proposed by Boston’s IEP (as modified above), or whether Student requires additional, residential educational services in order to receive a free appropriate public education (FAPE) in compliance with state and federal special education laws.

The federal special regulations explicitly allow for placement in a residential school in an appropriate case. The regulations address this issue as follows: “[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.”8 Federal courts have ordered residential placement in a variety of disputes.9

As the Second Circuit Court of Appeals has noted, however, it is important to “proceed cautiously” before ordering a residential educational placement.10 A residential placement is properly considered more restrictive than a day program, even when the day program (for example, McKinley) would place the student in a substantially separate program for severely disabled students. Boston’s school psychologist (Dr. Boatner) persuasively testified as to some of the reasons why an educational setting should be the least restrictive setting appropriate to the student. See Facts, par. # 24.11 The statutory preference for placement in the least restrictive environment mandates that a residential school be utilized only when Student’s educational needs cannot be appropriately addressed during the school day.12

The appropriate standard, as reflected within several First Circuit Court of Appeals decisions, for determining whether a residential placement should be ordered is whether the educational benefits to which the student is entitled can be obtained in a day program alone, or conversely whether these educational benefits can only be provided through round-the-clock special education (and/or related) services, thus necessitating placement in a residential facility.13

Before answering this question directly, it is necessary to understand the scope of Student’s educational needs and therefore the extent of Boston’s obligations to address those needs.

Student’s Special Education Needs .

Special education law is clear that an appropriate educational program must be designed to meet the particular student’s unique needs for special education and related services,14 whether those needs be academic, physical, emotional, social15 or behavioral.16

The undisputed testimony as well as the written reports and evaluations in evidence describe Student as having extensive deficits falling within three general areas: (1) cognitive and learning needs, (2) social and emotional (or psychological) needs, and (3) behavioral needs. Not only have the Kennedy Hope witnesses testified at length regarding these deficits, but also the Boston witnesses and reports consistently reflect these disabilities and the need for them to be addressed. Testimony of Rourke, Gaynor, Boatner; exhibits P-10, S-1, S-3, S-7, S-8.

It is also not disputed that Student’s social, emotional and behavioral needs impact her education. While at Kennedy Hope, Student’s regressed, oppositional and (at times) unsafe behaviors have occurred within all settings, including the school environment. When her emotional and behavioral difficulties occur in the classroom, the impact upon Student’s education is immediate. When these difficulties occur within contexts outside of the classroom, they carry over to the school day and negatively impact upon her ability to learn. Testimony of Rourke, Gaynor; exhibit P-10. See Facts, pars. # 10, 11, 15.

Boston’s occupational evaluation (exhibit S-8; Facts par. # 37) similarly noted:

[Student’s] major weakness appears to be related to her emotional state. Her behavioral difficulties significantly impact on classroom performance. [Student] is known to become tearful, withdrawn or oppositional when dealing with challenging situations.

Boston’s school psychologist made clear the need to address Student’s social and emotional issues as part of her special education services. Testimony of Boatner; exhibit S-3. See Facts pars. # 24, 28. Also, Boston has proposed an IEP whose first two goals (and the benchmarks/objectives under those goals) seek to address Student’s social and emotional deficits, as well as her related behavior difficulties. Exhibit S-1.

Similarly, the report of Boston’s Behavioral Specialist (Ms. Davis) indicated that (1) Student’s Post Traumatic Stress Disorder has effected her ability to control her emotions, (2) Student does not have the skills or inner resources to manage her negative feelings and work through the trauma connected with her escalations, and therefore she relies a great deal on external controls and supports, (3) as a result, she typically acts out her distress behaviorally before she is able to communicate its source, (4) she becomes aggressive and unsafe, with some physical interventions by staff lasting one hour, and (5) her regressed, oppositional and at times, unsafe behaviors occur in all contexts of her environment. Exhibit S-7.

This undisputed evidence reflects a fragile young woman with significant and complex emotional disabilities, as well as significant behavior dysfunction related to her emotional difficulties. Appropriately addressing these deficits may not properly be understood simply as something extra (and perhaps unrelated to her educational development), but rather these deficits are intertwined with and significantly impact her availability to learn and her continuing to make meaningful or effective educational progress. Testimony of Gaynor, Rourke, Boatner; exhibits P-10, S-1, S-3, S-7, S-8.

For these reasons, I find that Student’s special education and related services must address appropriately not only her academic and cognitive difficulties, but also her emotional and behavioral needs.

Student’s Need for Residential Services to Address her Emotional and Behavioral Needs .

The issue then is whether Student’s educational needs can be adequately addressed within a day program only, or whether residential educational services are also needed. I begin with Student’s emotional and behavioral needs, and will later address her deficits regarding activities of daily living (ADL).

The only two witnesses with demonstrated expertise and experience regarding therapeutic services and supports needed by Student were her family therapist at Kennedy Hope (Ms. Gaynor) and the program manager of Kennedy Hope (Mr. Rourke). Ms. Gaynor has practiced as a clinical social worker since 1989 (she received her masters degree in social work in 1987), providing psychosocial evaluations and family therapy to children and adolescents in psychiatric hospital settings and, since March 2003, providing family therapy to students (and their family members) residing at Kennedy Hope. Mr. Rourke, who has a masters degree in psychology, has significant clinical and behavioral experience from 1988 through the present. Exhibit P-12 (resumes). In addition, both Ms. Gaynor and Mr. Rourke have significant experience working directly or indirectly to address Student’s particular therapeutic needs. Ms. Gaynor has provided family therapy to Student and her mother since March 2003, and Mr. Rourke has participated in a number of Student’s treatment team meetings since Student arrived at Kennedy Hope in July 2002, and has overall responsibility for supervising her therapy as the program manager. I found both Ms. Gaynor and Mr. Rourke to be highly credible witnesses. For these reasons, I am guided in particular by the testimony of these two witnesses (as well as the report of Ms. Gaynor) in determining how Student’s social, emotional and behavioral needs may be addressed.17

It is not disputed that Student’s regressed, oppositional and at times unsafe behaviors occur in all contexts, including school, therapy and the living (or residential) unit. When Student becomes upset or stressed, there is a significant risk that she will harm herself or staff, and behavior problems are likely to develop. Testimony of Rourke, Gaynor; exhibits S-7, P-10. See Facts, pars. # 11, 15, 17.

Student has made significant progress in her social, emotional and behavioral deficits. She has made particularly strong progress regarding her social abilities; progress has also been made regarding her emotions and behavior. Most importantly, she is able to recognize when she has a problem or frustration, and to express it verbally and ask for help from staff, rather than to act it out impulsively through maladaptive behavior. However, she is not able to do this independently and continues to need a great deal of staff support through their monitoring, making inquiries of her, and even prodding her to process her concerns with the staff when they notice that she may be upset. It is apparent that notwithstanding Student’s progress, she simply is unable presently to manage independently her negative feelings and requires a great deal of external control and supports from staff within all contexts – that is during the school day as well as her residence. Testimony of Rourke, Gaynor; exhibits S-7, P-10. See Facts, pars. # 13, 14, 17, 33-37.

The testimony of Ms. Gaynor and Mr. Rourke was persuasive that an around-the-clock therapeutic environment, with services and supports from persons specifically trained to address her emotional and behavioral needs at any time of the day or night, must continue to be in place in order to protect Student (and those she is with) from significant harm, to allow her to continue to make progress emotionally and behaviorally and to allow her (emotionally and behaviorally) to be available for her education.

The only Boston witness who specifically addressed Student’s needs for residential services was Ms. Stella, who is the program manager of the McKinley Schools.18 In her testimony, Ms. Stella stated that Student requires a structured therapeutic living arrangement with staff able to address Student’s social and emotional needs. Testimony of Stella. See Facts, par. # 43. I therefore find little disagreement that Student requires residential services to address her emotional (and related behavioral) needs.

The need for a residential placement may be further understood by considering whether Student’s current emotional and behavioral needs can be met only within a single , unified residential placement such as Kennedy Hope, as compared to Student’s receiving her day and residential services within separate programs.

Boston takes the position that a split day/residential program would be appropriate for Student. This position is supported by the testimony of Ms. Stella who concluded that even though Student requires a structured therapeutic living arrangement with instruction regarding ADLs, the living arrangement could be separate and distinct from McKinley. In her testimony, Ms. Stella explained that it is not unusual for students at McKinley to be living some place other than at home with their biological parents – for example, a group home or specialized foster home. She pointed out the daily and frequent communication that can be established between the living arrangement and school to provide consistency. For example, if the student had a behavioral incident at school, this would be communicated to his home or residence; and if the home or residence communicated such an incident to McKinley, guidance staff would be informed and would follow up with the student during the day. Testimony of Stella. See Facts, par. # 39.

I found Ms. Stella to be a credible witness, with significant experience managing services for severely disabled students. However, I am not persuaded that she has sufficient knowledge of Student (and how her individual needs can be met) to provide a persuasive opinion that this split arrangement would satisfy Student’s needs.

I do not doubt that the split arrangement suggested by Boston may be appropriate in certain instances. For example, if Student’s residential placement were needed only to address her ADL skills, I would likely find that such an arrangement could be appropriate. Also, if Student continues to make significant progress, her emotional and behavioral needs will likely diminish, allowing her to be placed in a less intensive residential program within three to six months and eventually to be placed in a day program without any residential therapeutic supports and services. Clearly this is the hope and expectation of Student’s caregivers at Kennedy Hope. Testimony of Gaynor, Rourke.

In order to continue to make progress regarding her emotions and behavior, Student requires consistent rules that are uniformly applied. This is most easily seen with respect to the rules implemented by Kennedy Hope regarding Student’s mother. The relationship with her mother is quite important to Student; they each see each other as part of their lives. At the same time, mother’s access to Student and to her program must be carefully controlled. To this end, Kennedy Hope has a strict rule that mother may only access the program through Mr. Rourke or a therapist; all other day and residential staff understand and implement this rule. Without this degree of consistent control, mother will “relentlessly” seek to try to find a way to contact Student, and if successful, Student will feel that her environment is neither safe nor in control, with likely significant emotional and behavioral decompensation (including aggression, suicidality and attempting to run away) and possible psychiatric hospitalization. Testimony of Rourke, Gaynor.

Theoretically, it might be possible to implement such a rule consistently within two separate programs. In reality, however, it would be significantly more difficult, with a far greater chance of failure. In the words of Mr. Rourke, it would be a “nightmare” to try establish such a strict rule of access by mother among two separate programs with two separate organizational structures and separate staffing. There would simply be too many ways in which, soon or later, the communication and implementation of this rule would likely break down. Testimony of Rourke.

Similarly, Ms. Gaynor and Mr. Rourke persuasively explained in their testimony that Student’s progress to date regarding her emotional and behavioral deficits is attributable in large part to the intensive therapeutic support of the single, integrated program which is provided at Kennedy Hope. This integrated therapeutic approach is characterized by a single behavior plan and a single reward system, which are implemented across all environments. The teachers in the classroom, the mental health counselors who staff the residence, and all of the therapists function together as a single staff, with daily and frequent opportunities for interaction and updates to ensure a high level of consistency. Particularly important to this model is the frequent and easy access of the therapists to both the teachers and the residential staff to ensure a consistent therapeutic approach that can be easily adjusted to meet Student’s changing needs. Testimony of Gaynor, Rourke, Leighton.

I find that it is this level of integration and consistency which is necessary for Student’s continued educational progress. Without this level of therapeutic support, Student tends to fall apart emotionally and behaviorally. As Mr. Rourke persuasively explained, Student simply would not be able to tolerate functionally the split model imagined by Boston. Testimony of Gaynor, Leighton, Rourke.

The level of support provided by an integrated therapeutic program will also be necessary for Student to be able to be able to talk about and understand, through therapy, the difficult remaining issues regarding her removal from her mother’s custody. The experience of being removed from her mother’s care is a source of significant trauma for Student. These issues, which will likely be quite difficult for Student to talk about, will need to be addressed for Student to continue her emotional development. Testimony of Gaynor, Rourke, Leighton.

For these reasons, I conclude that in order for Student to continue to make minimally acceptable educational progress (in particular, meaningful or effective progress regarding her emotional and behavioral deficits), Student requires a residential educational placement in which the living arrangement and school day are combined within a single placement.19

Student’s Need for Residential Services to Address her ADL Needs .

It is not disputed that Student has significant difficulty with her activities of daily living (ADL) skills – for example, changing her clothes, cleanliness, and appropriately addressing her menstrual cycle.

At Kennedy Hope, Student’s ADL needs are addressed both in classroom and in the residence. For example, a classroom teacher from the school helps Student with her morning routine at the living unit when she wakes up, including hygiene and assistance related to her menstrual cycle. Similarly, a classroom teacher from the school helps Student with her ADLs in the living unit in the afternoon. This serves to teach Student with hands-on instruction that is consistent with classroom instruction regarding these skills. Perhaps most importantly, this also results in a significant amount of consistent repetition of teaching, which has been found necessary in order for Student to learn. Testimony of Taylor, Gaynor. See Facts, par. # 8.

The only Boston witness who specifically discussed the need to address Student’s ADLs was Ms. Stella, the program manager of the McKinley Schools. In her testimony, Ms. Stella stated that Student requires a living arrangement with staff who would work on teaching Student her ADL skills. Testimony of Stella. See Facts, par. # 43.

For these reasons, I find that there is no dispute that Student requires residential educational services to address her ADL skills.20

Student’s Need for a Residential Educational Placement .

Having determined that Student needs a residential educational placement in order to address her emotional and behavioral needs, as well as to teach her ADL skills, I find that Boston’s proposed IEP is inadequate in that it makes no provision for addressing Student’s need for residential services.

Under these circumstances, I have the responsibility to order placement at Parent’s proposed residential placement (which is Student’s current placement Kennedy Hope) in the event that I determine that placement at Kennedy Hope would provide Student with FAPE.

Boston appears to take the position that all of Student’s needs could be addressed through a split placement – that is Student would be placed at McKinley during the day, and a DSS placement would satisfy any needs that Student might have regarding her social, emotional, behavioral and ADL needs at other times of the day or evening.

I have discussed above the need for Student to be served by a unified placement which combines both day and residential components. I will now consider Boston’s responsibilities in the event that I were to conclude that a split placement would be appropriate.

It is not disputed that Student is not yet able to be re-united with her mother. Boston expects DSS to remedy the inadequacy of Student’s home situation by providing for a DSS-funded living arrangement (such as a group home or specialized foster home). Boston presumably believes that Student’s needs for residential services (to address his emotional, behavioral and ADL needs) would be adequately and appropriately addressed within this DSS living arrangement, rather than through a residential educational placement provided by Boston.

The Abrahamson decision of the First Circuit Court of Appeals made clear that a school district does not have responsibility to provide a residential placement
simply to remedy a poor home setting or to make up for some other deficit not covered by the [special education statute]. It is not the responsibility of local officials under the [special education statute] to finance foster care as such: other resources must be looked to.21

The Court went on to explain, however, that when “the minimal educational benefits to which [student] was entitled could not be obtained in a day program alone,” the school district may be required to provide educational services as part of a residential placement.22

The Court in Abrahamson further clarified that the residential placement to be provided by the school district need not be limited to the single option of a residential educational school. Rather, the Court approved a residential placement in two parts – a special education collaborative program during the day and a separate group home living arrangement where the student would be provided a structured environment in which he is given consistent instruction in and continual reinforcement of the skills he is being taught in his day program.23

This analysis makes clear that once it is determined that residential services are required to address Student’s special education needs pursuant to state or federal special education laws, the school district has the responsibility to provide those services through a residential educational placement, even if the residential portion of the services are to be provided in a separate location from the school such as a group home.

Appropriateness of the Kennedy Hope Placement .

The placement and services at Kennedy Hope have been described in detail above. See Facts, pars. # 3-20. I will discuss briefly the key elements.

Kennedy Hope is, in many respects, an ideal placement for Student. It has been specifically designed to provide the services needed by students with significant cognitive, emotional and behavioral deficits – this is precisely the profile of Student’s most significant needs. To this end, Kennedy Hope provides intensive therapeutic services necessary to work with students with emotional and behavioral difficulties. Its staff are trained to work together to ensure consistent interventions and support within all settings. The large number of groups in which Student participates is also quite important in the development of Student’s social and language skills. Extensive individual and family therapy are provided. There has been significant progress made regarding Student’s social, emotional and behavioral deficits. See Facts, pars. # 3, 7-20.

Extensive and individualized instruction is provided regarding academic subjects, and additional instruction regarding ADL skills is provided. Student appears to be appropriately placed regarding her classroom peers. Additional speech language therapy is provided to assist Student with her language deficits. Student has made slow, but adequate, progress given her cognitive limitations, making at least one year’s progress in each academic subject during her time so far at Kennedy Hope. See Facts, pars. # 4, 6, 8, 19.

There are several potential weaknesses of the academic component of the program. First, Kennedy Hope has not yet been able to hire someone to replace Student’s supervisor who left in January 2004. As a result, the classroom teacher’s current supervisor is Mr. Rourke who is a clinician and manager with little teaching experience. Second, the age range of students in the classroom exceeds the Massachusetts Department of Education standards unless a waiver is granted. Mr. Rourke testified that he was not aware of this requirement and would immediately seek a waiver. Third, there was evidence indicating that Student might benefit from a more language-based academic curriculum. However, no evidence was presented that would support a finding that these admitted weaknesses in the academic component have in the past or would likely in the future limit, in any significant way, the ability of Kennedy Hope to provide Student with an appropriate education.

I also note that although one should be careful not to diminish the importance of addressing Student’s academic needs, it is apparent that appropriately addressing Student’s emotional, behavioral and social issues is the more immediate and more pressing concern. When more progress has been made regarding these issues, Student will likely be ready to attend a less restrictive placement.

For these reasons, I find that Kennedy Hope is an appropriate residential educational placement for Student and that Boston must therefore immediately provide (and fund) this placement for Student.

Conclusion .

The undisputed evidence reflects a fragile young woman with a combination of cognitive, learning, emotional, social and behavioral deficits. Of most immediate concern are Student’s significant emotional disabilities, as well as significant behavior dysfunction related to these emotional difficulties. These deficits, which limit her ability to learn, currently need to be addressed through round-the-clock, intensive therapeutic services and supports. Kennedy Hope provides these services and supports, as well as appropriate academic and ADL instruction. For these reasons, I find that the residential placement provided at Kennedy Hope is necessary for Student’s continued educational progress.

ORDER

In order to receive a free appropriate public education (FAPE), Student requires a residential educational placement. Boston’s most recent IEP (even with modifications to provide necessary additional services) would provide Student only with a day program and therefore is not reasonably calculated to provide Student with FAPE.

Student’s current placement (at the Kennedy Hope Academy) is an appropriate residential educational placement. Boston shall immediately provide (and pay for) Student’s residential educational placement at Kennedy Hope Academy.

By the Hearing Officer,

_________________

William Crane

Dated: June 23, 2004

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

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

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

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Confidentiality

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

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

“Elizabeth” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

DSS, for obvious reasons, has an interest in these proceedings. However, DSS has not sought to intervene, nor has either party sought to join DSS.


3

Exhibit S-1.


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


7

For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulatory provisions not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).


8

34 C.F.R. 300.302.


9

See, e.g., Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001); Mrs. B. v. Milford Bd. Of Educ. , 103 F.3d 1114, 1122 (2d Cir. 1997)); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).


10

Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).


11

I have previously noted the importance of seeking to maintain a student in a setting less restrictive than a residential placement. See, e.g., In Re: Harwich Public Schools , 7 MSER 49, 72 (2001).


12

Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).


13

Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).


14

20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877 (9 th Cir. 2001) (“FAPE must be ‘tailored to the unique needs of the handicapped child’”); Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (“IDEA requires tailoring to the unique needs of the handicapped child by means of an IEP”); Adams v. State of Oregon , 195 F.3d 1141 (9 th Cir. 1999) (amount of service hours must be “linked to the child’s unique needs”); Walczak v. Florida Union Free School District , 142 F.3d 119 (2 nd Cir. 1998) (services must be “tailored to meet the unique needs of a particular child”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); 34 CFR 300.26 (“the term special education means specially designed instruction . . . to meet the unique needs of a child with disability . . .); 34 CFR 300.300(a)(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).


15

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (The IEP “must target all of a child’s special needs, whether they be academic, physical, emotional, or social”) (internal quotations and citations omitted); 34 CFR 300.300(a)(3)(i) (special education services must “address all of the child’s identified special education and related services needs . . . .”).


16

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

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

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

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


17

None of Boston’s witnesses has demonstrated expertise or experience regarding therapeutic services and supports. It seems possible that Dr. Boatner might have this expertise or experience, but no evidence was presented as to his credentials or experience in this area, other than that he is (and has been for many years) a school psychologist. I also note that in Dr. Boatner’s testimony, as well as in his written report, he stated that Student was referred to him only “for a psychological evaluation to determine her current level of academic and cognitive functioning.” Exhibit S-3 (page 1). There is no evidence indicating that Dr. Boatner was asked to give expert opinion outside of Student’s academic and cognitive functioning levels. Even if Dr. Boatner were to have relevant expertise or experience, he made clear in his testimony that he was not offering an opinion regarding Student’s need for special education and related services outside of the school day ; and with respect to the day services, his written report (exhibit S-3) casts doubt as to whether Student is currently ready to make the transition to McKinley. See Facts, pars. # 28-29. Ms. Stella, who is the Program Director of McKinley, has a masters in social work degree. Her resume and testimony indicate that she has extensive administrative and managerial experience, as well as case management experience, without any expertise or experience as a therapist or clinician. Exhibit S-10. Dr. Goodale has impressive credentials regarding literacy instruction for behaviorally disabled students, as well as a variety of administrative experiences, but does not appear to have the requisite expertise to address Student’s social, emotional and behavioral needs. Exhibit S-12. It is also important to note that none of the Boston witnesses indicated that they have spoken with the Kennedy Hope therapists and clinicians regarding Student’s social, emotional and behavioral needs.


18

No other Boston witnesses testified regarding Student’s need for residential services. Dr. Boatner testified that he was not addressing Student’s needs regarding residential services. The other Boston witnesses testified as to the appropriateness of the McKinley Schools as a day placement but made no reference to the question of whether additional, residential services would be needed.


19

Courts have concluded that students may need residential services to address social, emotional and/or behavioral deficits. See, e.g., Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001) (residential services required; “A.C.’s behavioral and emotional problems must be addressed if she is to succeed academically”); David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985) (residential program needed to address student’s social and behavioral deficits). See also Mrs. B. v. Milford Bd. Of Educ. , 103 F.3d 1114, 1122 (2d Cir. 1997):

If institutionalization is required due to a child’s emotional problems, and the child’s emotional problems prevent the child from making meaningful educational progress, the Act requires the state to pay for the costs of the placement. Id. at 1534; Abrahamson, 701 F.2d at 228. See also Vander Malle, 667 F. Supp. at 1039 (“As long as the child is properly educable only through a residential placement, when the medical, social or emotional problems that require hospitalization create or are intertwined with the educational problem, the states remain responsible for the costs of the residential placement.”). As the Third Circuit reasoned, “the concept of education is necessarily broad with respect to [such children].” Kruelle v. New Castle County Sch. Dist, 642 F.2d 687, 693 (3d Cir. 1981).


20

The 1 st Circuit Court of Appeals has noted that with a student who has significant cognitive limitations, special education may appropriately focus on basic living skills such as ADLs and that a residential placement may be necessary to provide the consistent repetition and reinforcement needed to learn these skills. Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).


21

Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).


22

Id.


23

Id. at 228-229.


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